HoganWillig

Despite the challenging economic times we are experiencing, it is encouraging to receive inquiries regarding how to set up Not-For-Profit (NFP) corporate entities in New York for providing scholarships to students. In response to the interest we have received on this issue, what follows is a basic idea of what is involved in getting a corporate NFP underway for this worthwhile purpose.

The first step entails choosing a business name that is legally available and meets the legal naming requirements. The Certificate of Incorporation is then prepared and filed with the Department of New York State Division of Corporations ($75 filing fee applies). An Employer Identification Number (tax ID number for the corporation) must then be applied for with the IRS. Corporate bylaws are created which set forth the rules and procedures for running the NFP corporation. Additionally, an initial Board of Directors consisting of a minimum of three individuals over eighteen years of age (there are some exceptions to this age requirement) is selected or recruited. It is not necessary that the board members reside in New York State to serve on the board.

Subsequent to the formation of the NFP corporation, an organizational meeting would then be called to officially appoint the organization’s directors and corporate officers, adopt the corporate bylaws, establish the corporation’s budget for the fiscal year, and designate a bank for the corporation. Establishment of a Corporate Records Book containing meeting minutes and pertinent corporate documents is also necessary.

The NFP corporation must also register with the Office of the Attorney General of New York State, and with the New York State Tax Department for state business tax purposes.

Once these steps have been completed, application for federal tax exemptions is then made by filing an IRS Exemption Organization Determination Letter Request (IRS filing fees for this range from $400 to $850), and by filing an Application for Recognition of Exemption under IRS §501(c)(3), Form 1023. However, there is no requirement to file under §501(c)(3) to obtain federal tax exemption status if an organization has gross receipts in each taxable year of normally not more than $5,000. In such case, filing under §501(c)(3) may still be advisable to receive an IRS Determination Letter recognizing its tax exempt status for its records. Such filing must generally be made within 27 months after the date of incorporation.

Filing for a §501(c)(3) tax exempt status is somewhat involved. Among other things, the federal government requires submittal of the following information from organizations that are planning to award scholarships:

Criteria used for selecting recipients, e.g., academic performance or financial need, including the rules of eligibility;

• How and by whom the recipients are or will be selected;
• A copy of the scholarship application form and any literature describing the scholarship program;
• How the award will be administered;
• Description of how the scholarship will be paid;
• Where the scholarship funding will come from.

Once a federal tax exemption is obtained, New York State requires filing of its Form ST-119.2 to achieve state and local tax exemptions for a NFP corporation. Subsequent to obtaining a tax exempt status from the federal and local governments, there will of course be on-going obligations for the newly formed NFP corporation, such as annual meetings and administrative activities, including the filing of annual tax returns.

Hopefully, this provides you with an idea of the steps involved in this process. Should you wish to discuss any of this information, please give us a call.

Tags: certificate of incorporation, nfp corporation, not-for-profit, scholarships, tax exempt

Our real estate department handles all types of real estate related matters, including foreclosures.  This might be an unpleasant task, however the local lenders we represent are very understanding and sympathetic to their borrowers’ plights.  I have had our banks agree to postpone actions and sales, and to work out payment plans, or allow a home to be sold for less than the loan amount very often. Read on…

Tags: foreclosure, mortgage, notice of conference, re-financing

On October 7, 2011, Buffalonews.com reported a three car accident that killed 51 year old Cheryl Ozzimo and her husband, 58 year old Ronald Ozzimo.  This tragic incident raises several legal issues. A wrongful death action also includes a personal injury. The personal injury is the underlying theory for the culpability of the defendant. Damages in a wrongful death action is the financial loss to the survivors of the decedent. The time between injury and death including pain, medical treatment, loss of work are brought as a separated personal injury action, they are not covered by the wrongful death cause of action. All damages after death (future wages, services to spouse, etc.) are included as financial losses to the survivors. The statute of limitations for wrongful death is two years.

Tags: hoganwillig, java crash, ozzimo accident, personal injury, wrongful death

Check out Tammy Riddle, Esq., President of the WNY Chapter of the Women’s Bar Association and an attorney at HoganWillig, appearing on WGRZ’s “The Healthy Zone” to discuss the upcoming “Think Pink” event that is offering free mammograms to women, 40 or order, who are uninsured or underinsured.

Tags: breast cancer awareness month, free mammogram, hoganwillig, tammy riddle

Last week, the Buffalo News reported that a 29-year old driver with 2 prior convictions for DWAI has been charged with DWI in connection with his arrest for driving the wrong way down the Thruway.  The question in everyone’s mind is: “if this is his third offense, why wasn’t he charged with a felony?”  The defendant is being charged with a misdemeanor, which is considered a crime and is punishable by up to one year in jail, but he won’t be charged with a felony.  Here’s why:

His two prior convictions were for Driving While Ability Impaired. DWAI is defined as a traffic infraction, not a crime. Even though it’s an infraction, a defendant convicted of DWAI can be sentenced to up to 15 days in jail. A second conviction for DWAI within 5 years is also considered traffic infraction, but carries additional fines and a possible jail term of 30 days.

If he had one prior DWI conviction within the past 10 years, he would be charged with a Class E Felony. If he had two prior DWIs within 10 years, he would be charged with a Class D Felony.  However, the rule is not the same where a defendant, like the one in this article, is charged with Misdemeanor-DWI after having two prior DWAI convictions. If he is convicted of DWI, the court will certainly take his prior convictions into consideration at sentencing.

In this case, the District Attorney could choose to also charge him with DWAI as a “lesser-included offense” in order to increase the likelihood of securing a conviction. The DA would have discretion whether to charge it as an infraction or as a misdemeanor because this is his third DWAI within 10 years. The defendant is entitled to have proper notice at the beginning of the case as to what he is being charged with. If the DA chooses to charge “Misdemeanor DWAI,” the DA will have the burden of proving the existence of the two prior convictions within the past 10 years. A conviction on this charge will carry increased fines, up to 180 days in a penitentiary or county jail, or both.

Get a lawyer!

Tags: class D felony, class E felony, DWAI, DWI, prior conviction, traffic infraction

The Buffalo News reported on October 2nd that investigators are still on the look out for a driver that hit and killed a woman on Broadway and didn’t stick around to fess up.

Leaving the scene of a motor vehicle accident with out reporting it may result in serious fines and penalties, including criminal prosecution. When an accident leaves someone dead, the operator of the responsible vehicle may face criminal charges that can increase if drugs or alcohol were involved. These accidents may also result in civil suits by the estate of the person who was killed. These suits can include claims for personal injuries as well as wrongful death.

Tags: auto accident, broadway fatal accident, car accident, hit and run, leaving the scene

As many Western New Yorker’s are aware, there has been a rash of vehicles crashing into buildings in 2011 so far, including the most recent today, September 30^th, into the front of Dessert Deli in a busy plaza at Maple and North Forest in Williamsville.

If these unfortunate incidents are truly accidents, the drivers will be charged accordingly. Those charges could include anything from inadequate brakes (a misdemeanor), failure to use due care (infraction or misdemeanor, depending on circumstances), speed not reasonable and prudent (3 points), to maybe even a charge of parking in a prohibited place! (max $150 fine). Depending on their driving records, they may be able to negotiate a reasonable deal with prosecutors. If alcohol or drugs are involved, the driver can be expected to be charged criminally. The drivers need to stay on site, though, because leaving the scene of an accident involving a personal injury is a separate crime. Civilly, the driver is also on the hook for damage to person or property, as well as the owner of the vehicle.

Our advice to drivers and building owners is the same:  review your insurance coverage and make sure you are properly protected. Paying attention while driving no matter where you are goes without saying. There are serious consequences as indicated by these unfortunate accidents resulting in property damage, serious injuries and in some cases even death to the driver and innocent pedestrians.

Tags: car insurance, Dessert Deli, driving misdemeanor, vehicle accident