TITLE 12 TRADE,
COMMERCE AND BANKING
CHAPTER 3 BUSINESS
ASSOCIATIONS
PART 3 NONPROFIT CORPORATIONS
12.3.3.1 ISSUING
AGENCY: New Mexico Public Regulation Commission.
[12.3.3.1 NMAC - Rp, 12.3.3.1 NMAC, 12-15-09]
12.3.3.2 SCOPE: This
rule applies to all domestic and foreign nonprofit corporations, unless
exempted by law.
[12.3.3.2 NMAC - Rp, 12.3.3.2 NMAC, 12-15-09]
12.3.3.3 STATUTORY
AUTHORITY: NMSA 1978 Sections 8-8-4, 3-29-20, 53-8-7,
53-8-7.1, 53-8-8, 53-8-9, 53-8-31, 53-8-32, 53-8-35 through 53-8-45, 53-8-47
through 53-8-49, 53-8-50 through 53-8-54, 53-8-60, 53-8-64, 53-8-66 through
53-8-69, 53-8-71, 53-8-72, 53-8-75 through 53-8-80, 53-8-82, 53-8-83, 53-8-85,
53-8-88.1 and 53-19-60.
[12.3.3.3 NMAC - Rp, 12.3.3.3 NMAC, 12-15-09]
12.3.3.4 DURATION:
Permanent.
[12.3.3.4 NMAC - Rp, 12.3.3.4 NMAC, 12-15-09]
12.3.3.5 EFFECTIVE
DATE: December 15, 2009, unless a later date is
cited at the end of a section.
[12.3.3.5 NMAC - Rp, 12.3.3.5 NMAC, 12-15-09]
12.3.3.6 OBJECTIVE: The
purpose of this rule is to facilitate the formation and continuation of
nonprofit corporations as provided by law.
[12.3.3.6 NMAC - Rp, 12.3.3.6 NMAC, 12-15-09]
12.3.3.7 DEFINITIONS: See
12.3.1.7 NMAC.
[12.3.3.7 NMAC - Rp,
12.3.3.7 NMAC, 12-15-09]
12.3.3.8 DOMESTIC
NONPROFIT CORPORATIONS: A domestic nonprofit corporation shall comply
with the applicable requirements of the Nonprofit Corporation Act, NMSA 1978
Sections 53-8-1 through 53-8-99.
A. Filing requirements. A domestic nonprofit corporation shall file
all documents required by this section in compliance with 12.3.1 NMAC, General
Provisions, and shall pay all filing fees required by NMSA 1978 Section
53-8-85.
B. Name. A domestic nonprofit corporation shall comply
with name requirements of NMSA 1978 Sections 53-8-7 and 53-8-7.1, and may use
the procedures in 12.3.1.15 NMAC for inquiring about, reserving, formally
applying for, or reinstating a name.
C. Taxable
year determination.
(1) When a domestic nonprofit corporation has
a taxable year which is less than twelve (12) months, the corporation shall
file satisfactory proof with, and notify the bureau, of its 12-month taxable
year reporting period for purposes of corporate reports. Satisfactory proof shall include
appropriately authenticated copies of internal revenue service approval of the
short taxable year and of the corporation’s taxable year end.
(2) For a new domestic nonprofit corporation
for which no taxable year period has been determined, the bureau will presume
that the corporation’s taxable year ends December 31 and that the corporation
will report on a calendar-year basis.
When a new nonprofit corporation determines the end of its first taxable
year, the corporation will notify the bureau within thirty (30) days.
(3) For a domestic nonprofit corporation, for
which no taxable year has been determined because it is exempt from reporting
to the internal revenue service or otherwise, the bureau will presume that the
corporation’s taxable year for reporting purposes ends on December 31 and the
corporation will report on a calendar-year basis.
D. Documents required. All corporate reports shall include the
street address of the business office of the registered agent and addresses for
each of the corporation’s directors and officers.
(1) Articles of incorporation. A domestic nonprofit corporation shall adopt
and file with the commission articles of incorporation that comply with NMSA
1978 Sections 53-8-31 and 53-8-32. The
corporation may amend or restate its articles as provided in NMSA 1978 Sections
53-8-35 through 53-8-39.
(2) Statement designating registered agent
and office. A domestic nonprofit
corporation shall have and continuously maintain on file with the commission a
registered office and agent that meet the requirements of NMSA 1978 Sections
53-8-8 and 53-8-9.
E. Merger
and consolidation.
(1) Merger of domestics. Two or
more domestic nonprofit
corporations may merge or consolidate in compliance with the applicable
requirements of NMSA 1978 Sections 53-8-40 through 53-8-45 and shall file
articles of merger or articles of consolidation as required by NMSA 1978
Section 53-8-43.
(2) Merger or consolidation of foreign and domestic. One or more foreign nonprofit corporations
and one or more domestic nonprofit corporations may merge or consolidate in
compliance with the applicable requirements of NMSA 1978 Section 53-8-45 and
shall file articles of merger or articles of consolidation as required by NMSA
1978 Section 53-8-43.
(3) Reorganization as sanitary projects act association. A nonprofit corporation may reorganize under
the Sanitary Projects Act by complying with NMSA 1978 Section 3-29-20.
F. Dormant status. A domestic nonprofit corporation that meets
the requirements of NMSA 1978 Section 5-8-88.1 for dormant status may, in lieu
of filing a required corporate report, file a statement that it is no longer
actively engaged in business in New Mexico.
A dormant corporation may extend its dormant status, or may be fully
revived by complying with NMSA 1978 Section 5-8-88.1.
G. Dissolution. A domestic nonprofit corporation shall comply
with the requirements for dissolution provided in NMSA 1978 Sections 53-8-47
through 53-8-49 and file articles of dissolution that comply with NMSA 1978
Sections 53-8-51 and 53-8-52. A domestic
nonprofit corporation may cancel voluntary dissolution proceedings as provided
in NMSA 1978 Section 53-8-50.
H. Administrative
revocation and reinstatement. The
commission may revoke a domestic nonprofit corporation’s certificate of
incorporation for the reasons provided in NMSA 1978 Section 53-8-53, by issuing
a certificate of revocation pursuant to NMSA 1978 Section 53-8-54. A nonprofit corporation may apply for
reinstatement following the process and within the time period provided in NMSA
1978 Section 53-8-54.
[12.3.3.8 NMAC - Rp, 12.3.3.8 NMAC, 12-15-09]
12.3.3.9 FOREIGN NONPROFIT CORPORATIONS: A
foreign nonprofit corporation shall comply with the applicable requirements of
the Nonprofit Corporation Act, NMSA 1978 Section 53-8-1 through 53-8-99.
A. Filing requirements. A
foreign nonprofit corporation shall file all documents required by this section
in compliance with 12.3.1 NMAC, General Provisions, and shall pay all filing
fees required by NMSA 1978 Section 53-8-85.
B. Name. A
foreign nonprofit corporation shall comply with the name requirements in NMSA
1978 Sections 53-8-66 and 53-8-67 and may use the procedures in 12.3.1.15 NMAC
for inquiring about, reserving, formally applying for, or reinstating a name.
C. Required documents.
(1) Certificate of authority. A foreign nonprofit corporation shall obtain a
certificate of authority from the commission pursuant to NMSA 1978 Section
53-8-64 before conducting affairs in New Mexico, by filing an application
containing the information and supporting documents required in NMSA 1978
Sections 53-8-68 and 53-8-69. A foreign
nonprofit corporation may obtain an amended certificate of authority by meeting
the requirements of NMSA 1978 Section 53-8-76.
(2) Statement designating registered agent
and office. A foreign nonprofit
corporation shall have and continuously maintain on file with the commission a
registered office and agent that meet the requirements of NMSA 1978 Sections
53-8-71 and 53-8-72.
D. Merger. A foreign nonprofit corporation may merge in
compliance with NMSA 1978 Section 53-8-75 and shall file articles of merger as
required by NMSA 1978 Section 53-8-75.
E. Dormant status. A foreign nonprofit corporation that meets
the requirements of NMSA 1978 Section 53-8-88.1 for dormant status may, in lieu
of filing a required corporate report, file a statement that it is no longer
actively engaged in business in New Mexico.
A dormant corporation may extend its dormant status, or may be fully
revived by complying with NMSA 1978 Section 53-8-88.1.
F. Withdrawal. A foreign nonprofit corporation seeking to
withdraw from doing business in New Mexico may procure a certificate of
withdrawal from the commission by filing an application for withdrawal that
complies with the requirements of NMSA 1978 Sections 53-8-77 and 53-8-78.
G. Administrative
revocation and reinstatement. The commission may revoke a foreign
nonprofit corporation’s certificate of authority for the reasons provided in
NMSA 1978 Section 53-8-79, by issuing a certificate of revocation pursuant to
NMSA 1978 Section 53-8-80.
[12.3.3.9 NMAC - Rp, 12.3.3.11 NMAC, 12-15-09]
12.3.3.10 FIRST
REPORT: A domestic or foreign nonprofit corporation
shall file an initial report complying with the schedule and requirements of
NMSA 1978 Sections 53-8-82 and 53-8-83 on the commission-prescribed form
described in this rule and available as provided in 12.3.1 NMAC.
[12.3.3.10 NMAC - Rp, 12.3.3.9 &12.3.3.12 NMAC, 12-15-09]
12.3.3.11 ANNUAL
REPORT AND SUPPLEMENTAL REPORT: A domestic or foreign nonprofit corporation
shall file annual and supplemental reports as required by NMSA 1978 Sections
53-8-82 and 53-8-83 on the commission-prescribed form described in this rule
and available as provided in 12.3.1 NMAC.
[12.3.3.11 NMAC - Rp, 12.3.3.10 & 12.3.3.13 NMAC, 12-15-09]
12.3.3.12 REQUIRED
FORMS: A domestic or foreign nonprofit
corporation shall file initial, annual and supplemental reports as required by NMSA 1978 Sections 53-8-82 and 53-8-83 on the
commission-prescribed form available as provided in 12.3.1 NMAC.
A. First reports, annual reports and supplemental
reports shall contain:
(1) exact corporate name and U.S. mailing
address;
(2) principal place of business in New Mexico;
(3) principal office outside of New Mexico for
a foreign corporation;
(4) NMPRC certificate of incorporation/authority
number;
(5) for foreign corporations: registered place of business in New Mexico if
different from registered office;
(6) state or country of incorporation;
(7) registered agent and office located within
New Mexico for service or process;
(8) names and addresses of all directors and
officers;
(9) date and signature and title of an
authorized officer or agent; and
(10) filing
fees.
B. Filing fees, report due dates, late
filing penalty.
(1) Filing
fees. A $10.00 filing fee is due and
payable to the commission at the time of filing of each domestic or foreign first
report, annual report and supplemental report.
(2) Report due dates.
(a) First report. A domestic or foreign first report shall be
filed within thirty days of the date of incorporation or qualification in New
Mexico.
(b) Annual report. A domestic or foreign annual report shall be
filed on or before the fifteenth day of the fifth month following the end of
the corporation’s taxable year.
(c) Supplemental report. A domestic of foreign supplemental report
shall be filed within thirty days if, after the filing of the annual report, a
change is made in:
(i) the mailing address, street address, rural
route number and box number or the geographical location of its registered
office in this state and the name of the agent upon whom process against the
corporation may be served;
(ii) the
name or address or any of the directors or officers of the corporation or the
date when the term of office of each expires; or
(iii) its principal place of business within or
without the state.
(3) Late filing penalty. A $10.00 late filing penalty is required if a
report is filed untimely.
C. Instructions.
(1) Enter exact corporate name and complete
mailing address must be given to meet postal delivery requirements.
(2) Enter principal place of business in New
Mexico. Enter “NONE,” if applicable.
(3) Enter principal office outside of New
Mexico, if different from the registered office in state or country of
incorporation. Enter “NONE,” if
applicable.
(4) Enter original NMPRC certificate of
incorporation/authority number issued by the corporations department or as
assigned by computer pre-printed information.
(5)
Enter foreign corporation’s registered address in state or country of
incorporation which may be different from item no. 3 on principal office
outside of New Mexico.
(6) Enter corporation’s state or country of
incorporation unless pre-printed or as corrected.
(7) Enter registered agent and address located
in New Mexico. Each corporation shall
have and continuously maintain in New Mexico:
(a) a registered office which may be, but need
not be, the same as its place of business;
(b) a registered agent, which agent may be
either an individual resident in New Mexico whose business office is identical
with the registered office, or a domestic corporation, or a foreign corporation
authorized to transact business in New Mexico having a business office
identical with the registered office; and
(c) an agent’s address must be acceptable for
service of process purposes; a post office box is unacceptable.
(8) Officers and directors are as set forth in
NMSA 1978 Sections 53-8-18, 53-8-23, 53-8-83 and 53-2-10. Enter all officers and directors with
respective addresses. Each New Mexico
corporation shall have officers, with title and duties as shall be stated in
the bylaws or in a resolution of the board of directors which is not
inconsistent with the bylaws, and as many officers as may be necessary to
enable the corporation to sign instruments required under the Nonprofit
Corporation Act.
(a) One of the officers shall have the duty to
record the proceedings of the meetings of the members and directors in a book
to be kept for that purpose.
(b) In the absence of any provision, all
officers shall be elected or appointed annually by the board of the
directors. If the bylaws so provide, any
two or more offices may be held by the same person.
(c) Officers and directors shall be identified
accordingly, i.e., identified if an officer is also a director to meet
statutory requirements. Two authorized
officers are required to sign documents for filing purposes under the Nonprofit
Corporations Act.
(d) The number of directors of a New Mexico corporation
shall be not less than three. Each
director shall hold office for the terms for which he/she is elected and
appointed until his or her successor shall have been elected and qualified.
(9) NMSA 1978 section 53-2-10 private
remedy.
(a) Any person who suffers any loss of money
or property as a result of being designated a director of a corporation without
giving his consent may bring an action against the designating corporation to
recover actual damages or one thousand dollars ($1,000), whichever is greater.
(b) The court may award attorneys’ fees and
costs to the party injured as a result of the director designation if he
prevails. The court may award attorney’s
fees to the corporation charged if the court finds that the action brought
against the corporation was groundless.
(c) The relief provided in this section is in
addition to remedies otherwise available against the same conduct under the
common law or other statutes of this state.
(10)
NMSA 1978 section 53-8-9
corporate reports, affirmation, penalty.
(a) All
reports required to be filed with the commission pursuant to the Nonprofit
Corporations Act shall contain the following affirmation: “Under penalties of perjury, I declare and
affirm that I have examined this report, including the accompanying schedules
and statement, and that all statements contained therein are true and correct.”
(b) Any person who makes and subscribes any
report required under the Nonprofit Corporations Act that contains a false
statement, which statement is known to be false by such person, is guilty of
perjury and upon conviction shall be punished as provided for in the perjury
statutes of this state.
(c) The report shall be signed and sworn to by
any two of its directors or officers. If
the corporation is in the hands of a receiver or trustee, the report shall be
executed on behalf of the corporation by the receiver or trustee. A copy of the report shall be maintained at
the corporation’s principal place of business as contained in the report and
shall be made available to the general public for inspection during regular
business hours.
(11) Application for period extension. Any corporation may, upon application to the
commission by the due date upon which a report is required to be filed,
petition the commission for an extension of time. The commission may, for good cause, extend
for no more than a total of twelve months the date on which the payment of any
fee is required. A copy of a commission
extension shall be attached to the required report.
(12) Mandatory
IRS extension. The commission shall,
when an extension of time has been granted a nonprofit corporation under the
United States Internal Revenue Code for the time in which to file a report,
grant the corporation the same extension of time provided that a copy of the
approved (signed) federal extension of time (IRS 2758) is attached to the
corporation’s report.
[12.3.3.12 NMAC - Rp, 12.3.3.10, 12.3.3.12 & 12.3.3.13 NMAC, 12-15-09]
HISTORY OF 12.3.3 NMAC:
Pre-NMAC History. The material in this part was derived from
that previously filed with the state records center:
Docket No. 83-1-CORP, In the Matter of Rules and Regulations for the
Corporation and Franchise Tax Department, 2-22-83.
SCC-84-1-CF, Regulations of the Corporations and Franchise Tax
Department, 3-15-84.
SCC 84-3, In the Matter of the Amendment of Regulations of Corporations
and Franchise Tax Department, 11-8-84.
History of Repealed Material.
SCC-84-1-CF, Regulations of the Corporations and Franchise Tax
Department (filed 3-15-84), repealed 7-15-05.
SCC 84-3, In the Matter of the Amendment of Regulations of Corporations
and Franchise Tax Department (filed 11-8-84), repealed 7-15-05.
12.3.3 NMAC,
Non-Profit Corporations (filed 7-1-05) repealed 12-15-09.
Other History.
Only those
applicable portions of SCC-84-1-CF, Regulations of the Corporations and
Franchise Tax Department (filed 3-15-84) and SCC 84-3, In the Matter of the
Amendment of Regulations of Corporations and Franchise Tax Department (filed
11-8-84) were replaced by 12.3.3 NMAC, Non-Profit Corporations, effective
7-15-05.
12.3.3 NMAC, Non-Profit Corporations (filed 7-1-05) was replaced by 12.3.3 NMAC, Non-Profit Corporations, effective 12-15-09.