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Foreword

The Regents of The University of the State of New York, as the body with overall responsibility for education in New York State, is empowered by statute to create corporations to operate educational institutions of all kinds, including colleges, universities, schools, libraries, museums, historical societies, and public television and radio corporations.

The Regents, the Commissioner of Education, and the State Education Department are also empowered to register, license, or otherwise approve certain educational institutions and programs, whether or not the institution in question has been incorporated by the Regents. Although frequently related to incorporation, registration and licensing are completely separate and distinct functions.

It is the purpose of this pamphlet to outline the procedures for the creation of education corporations by the Regents, and certain related matters, and to indicate the initial steps which should be taken to secure licensure, registration, or other required forms of approval.

Statutes, Rules, and Regulations

Reference will be made throughout this pamphlet to applicable statutory provisions, Rules of the Regents, and Regulations of the Commissioner. The text of most of the statutory provisions and Rules of the Regents, as they existed at the time of publication of this pamphlet, will be found in Appendices A and B , respectively. However, it must be emphasized that both the statutory provisions and the Rules are amended from time to time, and the reader is urged to consult the Education Law (Book 16, McKinney’s Consolidated Laws of New York) for the current text of all statutory provisions, and Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York for the current text of the Rules of the Regents. Both publications may be found in most law libraries.

The Regulations of the Commissioner are too voluminous for publication in this pamphlet but may be found in Title 8 of the Official Compilation.

Forms

The State Education Department provides sample forms for use in drafting the various kinds of applications pertaining to charters and Regents certificates of incorporation. A skeleton form of a petition for provisional charter (or certificate of incorporation) is contained in Appendix C, and suitable forms for other documents (e.g., amendment of charter) may be obtained by visiting the link "Sample Petition Forms" on this website. All petitions must be executed and acknowledged before a notary public.

Forms and instructions in connection with the registration and licensing of institutions and programs may be obtained from the various Education Department offices referred to throughout this pamphlet.

Tax Exempt Status
Under Internal Revenue Code Section 501(c)(3)

As most education corporations created by the Regents are eligible for tax-exempt status under §501(c)(3) of the Internal Revenue Code, it is suggested that the petition for a provisional charter ask that the following language be included in the charter:

“Notwithstanding any other provision of these articles, the corporation shall not carry on any other activities not permitted to be carried on (a) by a corporation exempt from Federal income tax under section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue Law) or (b) by a corporation, contributions to which are deductible under section 170(c)(2) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue Law).

No substantial part of the activities of the corporation shall be devoted to carrying on propaganda, or otherwise attempting to influence legislation (except to the extent authorized by Internal Revenue Code section 501[h] as amended, or the corresponding provision of any future United States Internal Revenue Law, during any fiscal year or years in which the corporation has chosen to utilize the benefits authorized by the statutory provision), and the corporation shall not participate in or intervene (including the publishing or distribution of statements) in any political campaign on behalf of or in opposition to any candidate for public office.

Upon dissolution of the corporation, the board of trustees shall, after paying or making provision for the payment of all the liabilities of the corporation, dispose of the remaining assets of the corporation exclusively for one or more exempt purposes, within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future Federal tax code), or shall distribute the same to the Federal government, or to a state or local government, for a public purpose. Any such assets not so disposed of shall be disposed of by order of the Supreme Court of the State of New York in the judicial district where the principal office of the corporation is then located, exclusively for such purposes or to such organization or organizations, organized and operated exclusively for such purposes, as said Court shall determine.”

In those cases where a charter has been issued without the foregoing language, and a petition seeking an amended, extended, or absolute charter is to be submitted, it is recommended that the petition ask that the charter also be amended to include the foregoing language. In a recent change of position from earlier rulings, the Internal Revenue Service has issued Revenue Procedure 82-2, which provides that in order for a nonprofit charitable corporation created in New York (and in most other states) to qualify for tax-exempt status, the charter or certificate of incorporation must contain language which satisfies the provisions of §1.501(c)(3)-1(b)(4) of the Income Tax Regulations. It is recommended that the dissolution clause listed above be included to comply with such regulations.


Counsel and Deputy Commissioner for Legal Affairs
State Education Department
2000