If the school is part of a larger school district (like mine), and there are other established PTOs in other schools within the district, then chances are your school may already be considered a non-profit if the district has filed that way. I know that before I started, we were given the by-laws and club guidelines and we're specifically told what we can/can't do as we were part of the larger non-profit (our district).
Anyway, I would ask the school district for guidance, or whomever is in charge of the PTO activities for your district.
One thing to consider - in the scheme of things incorporation is usually a very simple process for a non-profit. You need bylaws whether you incorporate or not. In most states, incorporation merely requires that the organization present their Articles of Incorporation (AOI) - or other required document - and pay a small fee, like $25 or $50.
For non-profits, the state usually has a downloadable sample of the AOI and you simply fill in the blanks. It often just one page or so.
You lawyer may be preforming the following tasks:
crafting bylaws
incorporating the organization with your state
filing for 501(c)(3) status with IRS - $750 fee
filing for [sales] tax exemption with your state
My point is that incorporating in of the simplest tasks (for a non-profit) and really doesn't require a lawyer. PTOs handle it themselves all the time. So I'd have a hard time swallowing a justification of a big fee for THAT service.
Thank you all for your help. I thought that this was the case, but the lawyer (probably to justify his fee) insisted that incorporation was necessary. I will e-mail the PA Dept. of Revenue to check, as you suggest. Thanks for the links and your research!
I see no instructions that would require incorporation, and it's hardly likely they'd include a checklist for unincorporated organizations if they weren't accepting applications from them.
In your case, I think an answer directly from the PA Department of Revenue will carry the most weight because they are the authority in this matter. Ideally get the answer in writing (email) or else carefully note the name/title of the person with whom you speak as well as the date/time. Here is their
contact information.
However, as more supporting evidence, the commonly asked questions section from you PA Department of Revenue includes an answer to the question of how to gain Sales Tax Exemption for a non-profit organization. (
Link
) Among other things, it says that unincorporated entities submit bylaws. It seems clear to me that there is no requirement for incorporation.
No - incorporation is not required. It's a recommended, but optional, step. The first PTO I helped form as a 501(c)(3) was not incorporated, and I can tell your for a fact it is not required by the IRS.
This can be very confusing because of the various terms used inter-changeably, plus levels of law that apply (federal versus state).
Your president should never have taken such a step to expend that amount of funds without approval. I'll see if I can find you specific info on PA.
Lucky - I'm pretty sure incorporation isn't a prerequisite in California - although definitely it's a good idea. Perhaps your organizers stressed that part and implied it was required. I only looked briefly at the laws in your state, but the application process specifically refers to "corporations and unincorporated associations".
Note - if you do plan to incorporate, the order is important. You do this first, before applying for the 501(c)(3). Once you incorporate, you create a new legal entity. If you were already a 501(c)(3), it doesn't transfer. You'd have to file and pay the $750 fee all over again if you incorporate later.
I can only tell you that in California incorporation is required before you can become a nonprofit, because the feds (IRS) and the state (Franchise Tax Board) will only grant nonprofit status to corporations, therefore, one necessitates the other. It is probably true in PA as well, but I do not know PA law.
However, your PTA President is most likely not allowed to spend any monies without prior Board approval and Association ratification. Do you have Bylaws? If you're not a corporation, you probably don't have any. Are there any written rules about how your organization is governed? Now that you are a corporation, you will have Bylaws that will probably state the appropriate procedure for spending. You can report the issue to your District, or whoever oversees your PTA.
If your President did not bid out the work & took the first attorney he came across, or if he has a personal relationship with the attorney, the President could be held personally liable for the expense. It is complicated, there are lot of factors to consider.
I hope you can work it out. If not, the year is half over, and you can elect a new President for next year, hopefully.
