A Nonprofit From Elsewhere Setting Up in Wisconsin

A nonprofit whose charter came from somewhere other than Wisconsin is foreign here, and Wis. Stat. 181.1501(1) keeps it out of business in the state until DFI grants a certificate of authority. The department, not a Secretary of State, handles these filings, and it takes the application on paper.

The certificate leaves the organization's home-state charter in place. Its effect is permission to operate in Wisconsin, subject to the duties a domestic nonstock corporation has. Registration to solicit charitable gifts and exemption from taxes are separate filings that this one does not replace.

Transacting business has no definition in the statute. In its place sits a list of excluded activities that opens with "among others," a signal that other things may qualify too. Section 181.1501(2) names:

• Pursuing, defending or settling any civil, criminal, administrative or investigatory matter
• Board or member meetings and other activity concerning internal affairs
• Keeping bank accounts
• Maintaining offices or agencies that register its memberships, or trustees and depositaries for them
• Selling through independent contractors
• Soliciting orders that must be approved elsewhere before they become binding
• Taking on debt or mortgages and obtaining security interests
• Recovering debts and enforcing mortgages or collateral rights in the secured property
• Owning property, without more
• A single transaction closed out within 30 days and unconnected to a series
• Interstate commerce

For nonprofits the useful items are bank accounts and property ownership. A foundation that holds an account or an investment property in Wisconsin, with no program operating here, falls inside the list. A charity that runs a clinic, holds regular events or employs staff in the state does not. Where the facts are in between, a Wisconsin attorney can review them.

The application is Form 121, and the fee is $100. That is the amount in the statute and the form, and unlike some states Wisconsin gives nonprofits no discount. DFI sets the filing fee at the same level whether the corporation sells shares or has none. The paper form goes to DFI's Milwaukee post office box with a check, or to the Madison address for express mail; paying online and e-mailing the form is also permitted. A one-business-day rush adds $100, and counter service in Madison within four hours or one hour adds $250 or $500.

The application contains:

• The corporation's name, or a fictitious name when its own is not available (the separate Form 21B)
• Where it was incorporated, when, and for how long
• The principal office's street address
• The registered agent's name and e-mail address, with the registered office street address
• Its directors and principal officers, with business or home addresses
• Whether the corporation has members
• A statement that it is organized without capital stock
• Whether it did business in Wisconsin before applying, with a supplement if so

Wisconsin requires evidence from the state of incorporation, and it sets a short shelf life. Under 181.1503(2), a certificate of status (or a document of like character) authenticated by the home-state record keeper must be delivered with the application, dated within 60 days of delivery. Form 121 identifies the document as an existence or good-standing certificate and rules out a certified charter copy as a stand-in.

As the nonprofit, you order it from the home-state office. Because DFI counts back 60 days from the day it receives your filing, time the order to the mailing date. A certificate that was fine when ordered can be stale by the time the application reaches Madison.

The name Wisconsin lists must be distinguishable from other entities on DFI's records and from reserved or registered names. A nonprofit whose name is unavailable may adopt a fictitious name by resolution of its board, submitted with the application on Form 21B.

A registered agent is required

Under 181.1507, a foreign nonstock corporation must at every moment have a Wisconsin agent and a registered office. The office is a genuine street address; boxes, mailbox services and answering services are excluded. An agent may be an individual residing in Wisconsin who works from the registered office, or an entity (corporation, LLC, limited partnership or LLP) with its business office there, foreign ones included if authorized here. E-mail and a Wisconsin place of business or activity are required of the agent. A statement of change replaces an agent for $25 on paper or $10 online.

A foreign nonstock corporation files an annual report in the first calendar quarter after its registration year, which means it is due March 31 every year. DFI lists $65 for an online filing and $80 for paper. A notice is sent to the registered agent by e-mail. Waiting four months past the due date exposes the certificate to revocation.

An amended certificate of authority, needed for a change of name, date or duration of existence, or state of incorporation, costs $40. Withdrawal is Form 124, also $40. Wisconsin tax registration, charitable solicitation registration and recognition of exempt status are all outside this filing.

Section 181.1502 shuts Wisconsin's courts to claims brought by a foreign nonstock corporation that needed a certificate and lacked one, until it gets it. The same bar reaches whoever succeeds to the corporation or takes assignment of the claim, and a judge may stay the case while deciding whether a certificate was required. The organization's own acts and its ownership of property remain intact, and it remains free to defend.

Money penalties are gentler for nonprofits than for business corporations: $50 per year of unauthorized business, partial years counted, up to $500, added to the fees that would have applied. Form 121's supplement adds the $65 annual report fee for each year since the corporation began working in Wisconsin, and then the penalty. DFI will not issue the certificate until the amount is paid, and the attorney general can enforce collection.

Mainstay Filing's registration work stops at LLCs and for-profit corporations; the nonprofit sends in Form 121 itself, via an officer or its lawyer. Mainstay Filing offers the registered agent: $149 per year, unchanged at renewal. Put Mainstay Filing's Wisconsin street address on both the agent line and the registered office line.

Whenever the agent is served, a scan of the papers is posted to your Mainstay Filing account that same day at no fee; up to three letters from government offices per year receive free scans too. If your nonprofit has another agent on file, Mainstay Filing can prepare the statement of change, with only DFI's fee passed through. Entity agents with a Wisconsin place of business are allowed, and Mainstay Filing's agent is a company. Details are on the Wisconsin registered agent page. Mainstay Filing does not give legal advice, including on exemption or solicitation rules.