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Nonprofit Orgs.

Overview

Nonprofits come in many shapes and sizes. Their fundamental distinguishing characteristics are that they have no owner and that the nonprofit’s resources have to be used for the benefit of a broader public interest, not for the purpose of benefiting the founders. However, behind those broad statements are many important nuances which this section explores in detail.

Many people looking to form a farmers market are attracted to the nonprofit structure. This is often based on the understanding that a nonprofit is the "anti-corporation"—mission-oriented, responsible to consumers and society at large, limited in profit capacity, but financially secure as grant magnets with federal tax-exempt status.

Although there is truth to these impressions, key aspects of nonprofits are often misunderstood. Technically, most nonprofits are a kind of corporation. They are seen as a particularly friendly kind of organization in that their mission, generally, is to serve the public interest. A nonprofit can, in fact, make a profit from its activities, but all profits must be used to further the nonprofit’s mission. Nonprofits also may pay "reasonable compensation" to those who run it (directors, officers, staff, etc.). A nonprofit’s primary limitation is that it can't distribute its net earnings to individuals, like a regular business would distribute profit at the end of the year to owners or shareholders.

Most people think of nonprofits as being tax exempt, but this isn’t the case for all nonprofits. Creating a tax-exempt nonprofit involves two steps. The first is forming a nonprofit corporation at the state level. The second step is filing paperwork with the federal Internal Revenue Service (IRS). When many people think of the advantages of a nonprofit—the ability to accept tax deductible donations and avoid taxation on profit—they are thinking of the IRS status. Incorporating as a nonprofit under state law doesn't guarantee federal tax-exempt status. After incorporating with the state, a nonprofit may apply to the IRS for federal tax exemption. The IRS then assesses the nonprofit’s actual or intended mission, activities, and revenue sources to determine if it qualifies for tax-exempt status. While nonprofits with a primarily commercial mission (like marketing food to consumers) may have a challenging time qualifying for tax-exempt status with the IRS, they will have no problem structuring themselves as a state-level nonprofit corporation.

Some nonprofits are not incorporated. They are structured as “unincorporated nonprofit associations,” or UNAs. For farmers markets that want to remain strictly informal the UNA is an option.

Despite the additional steps and obligations that a tax-exempt nonprofit corporation encounters, many farmers markets find the nonprofit in general to be a wise choice to structure their operations.

Key Characteristics

Key characteristics that distinguish the nonprofit from other for-profit business structures:

  • Limited ownership and control. Nonprofits cannot have owners. Ownership and control are handled by a board of directors—a group of people appointed to the governing body of the nonprofit. These individuals may in some cases appoint themselves and set their own operating rules, but limits apply.
  • Can’t distribute profits to individuals. Although a nonprofit may generate profit, it must use the profit to advance its mission. While a nonprofit can pay reasonable compensation to employees, it cannot distribute profits to individuals, like a business might do for owners.
  • Potential for tax-exempt status. A nonprofit corporation can apply to the IRS for tax-exempt status. The 501(c)(3) tax-exempt status is the most common tax-exempt status, but there are others (e.g., (c)(4), (c)(5), and (c)(6)). An unincorporated nonprofit association cannot receive IRS tax-exempt status.
  • Potential to accept tax deductible donations and become eligible for grants. A nonprofit farmers market that applies for and receives tax-exempt status with the IRS may accept tax deductible donations. These organizations also become eligible for grants from foundations and organizations that are restricted to giving to tax-exempt organizations.
  • Mission integrated into structure: A for-profit business can have a mission and dedicate profits toward that mission as the owner may choose. Nonprofits, especially those with tax-exempt status, are required to adhere to their mission by limiting the distribution of profits. This lends credibility to the mission.
  • Eligibility to use volunteers. Nonprofits will have a much easier time utilizing unpaid volunteers and staff persons within the letter of the law. This can be quite difficult for a for-profit business. For more on labor law, click here.

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Getting Started

A farmers market that wants to operate as a nonprofit can choose to be an unincorporated nonprofit association or a nonprofit corporation. This section discusses both options.

There are no steps to forming an unincorporated nonprofit association (UNA)

An unincorporated nonprofit association (UNA) can be the right choice for farmers markets prioritizing a quick start-up phase, simple operating structure, and the credibility that comes with being a nonprofit.

Any time a group of farmers gathers intentionally to vend their product at an agreed upon place and time, an entity exists and there are legal ramifications that follow. If the group of farmers hasn’t taken any action to form a corporation or limited liability company (LLC), then the group is either a for-profit sole proprietorship or partnership, or it is an unincorporated nonprofit association. If no one intends to generate any profit from the market and the vendors act for their mutual benefit, they are likely a UNA.

To reiterate, there are no steps to forming a UNA. When a group of individuals gathers together for an activity to benefit themselves or the public, but does not intend to make a profit, they may have formed a UNA. A sports club is a classic example. Let’s say a group of friends gathers every Saturday to play soccer. They each contribute a participation fee, and that money is used to rent facilities, have T-shirts printed, and pay tournament or travel costs for the group. The group nominates a person or two to manage the funds and sign paperwork on behalf of the group. The soccer club as a whole doesn’t intend to make any profit; they are only intending to cover costs while working together to have a fun time and stay fit. In a legal sense, the soccer players have all formed a UNA.

Certainly, many farmers markets operate as UNAs. Forming a UNA can be quite unintentional—many farmers markets may not realize that, legally speaking, they are classified as a UNA. Let’s say a group of farmers decides to gather together on a Saturday at a specific location. They do not intend to generate a profit and they are operating the market for the benefit of their community, not themselves. They each contribute a modest fee to cover rent and perhaps some advertising or a banner. Some of the farmer-vendors manage the bank account and sign the lease on behalf of all the vendors. If the vendors haven’t done anything else to form an entity, they are, legally speaking, a UNA.

Note, however, that if the market does intend to generate a profit or if one or more persons is operating the market for their exclusive benefit, then the entity is likely a sole proprietorship or a partnership. Sometimes it’s not always clear whether the market is acting for mutual benefit or whether a profit is intended. An attorney can help sort these things out where it’s unclear.

Forming a nonprofit corporation requires additional steps

For many farmers markets, forming a nonprofit corporation is worth the additional steps involved. The process breaks down into six basic steps. These steps are very similar to forming a regular corporation, except that nonprofits can apply for tax-exempt status with the Internal Revenue Service (IRS) and their state tax divisions:

  1. File articles of incorporation with the state, generally with the secretary of state’s office
  2. Create corporate bylaws which establish the rules by which the nonprofit corporation will operate
  3. Appoint the initial directors
  4. Hold the first meeting of the board of directors
  5. Optional: apply for federal and state tax exemptions
  6. Apply for an EIN (employment identification number)

A) Filing the articles of incorporation

To form a nonprofit corporation, the incorporators must prepare and file articles of incorporation with the secretary of state or other state agency that handles business organization. Most states make it quite easy to draft and file the articles of incorporation with an online form; however, some states only accept paper articles of incorporation. Articles of incorporation are relatively straightforward and require basic information about the name, location, registered agent, and board members (also known as directors and officers). Articles of incorporation also generally ask if the nonprofit is a membership organization.

Note: Not every organization that accepts members may be a membership organization for the purposes of the articles of incorporation! From a legal perspective, “members” are people able to elect the officers and change the bylaws of the organization. If the farmers market chooses to have a board of directors who elect themselves or have sole authority to change the bylaws, the farmers market is likely not a “membership organization.” The farmers market can still call its supporters, vendors, and businesses “members” without being a membership organization, legally.) These people can participate in the market and provide input, they just don’t have rights to vote under the bylaws like they would if it was a “membership organization.”

Completing articles of incorporation for a nonprofit is not necessarily as easy as it seems, even when a form is provided. Many groups will benefit from the careful advice of an attorney or person experienced with forming nonprofits. Especially if the group intends to receive tax-exempt status from the IRS, they should be cautious about relying too heavily on state-provided forms. The forms provided by the state often contain only the information the state requires. The IRS has additional requirements that the state isn’t responsible to inform on.

For example, the IRS requires that a 501(c)(3) organization’s purpose be limited to a qualifying purpose—such as an educational or charitable purpose—and that this purpose be identified within the articles of organization. Some state forms provide a line for “purpose” and others do not; most do not tell the user that the purpose line must meet the IRS’ requirements to get 501(c)(3) status. To use another example, the articles of incorporation must limit the distribution of the nonprofit’s assets if the organization terminates. Many state-provided forms do not have an easily fillable line to enter this IRS-required statement. For more information on completing nonprofit articles of incorporation that will meet IRS rules, check out resources such as How to Form a Nonprofit Corporation by Nolo Publishing or a Complete Guide for Starting a Non-Profit Organization the website form1023.org.

B) Electing directors, appointing officers, and adopting bylaws

Once the secretary of state approves the articles, the nonprofit corporation is formed. If the articles name the nonprofit’s initial directors, those directors must complete the organization of the nonprofit by electing directors, appointing officers, and adopting bylaws. If the articles do not name the initial directors, the incorporators must complete the process of elections and bylaws approval. “Incorporators” are the people who filed the articles of organization and were named as the incorporators in that document.

After addressing state-level business, the nonprofit corporation must address business with the IRS. The nonprofit must apply for an employer identification number (EIN) by filing Form SS-4 with the IRS.

A nonprofit corporation may also choose to apply to be recognized as exempt from federal income taxation. To apply for recognition under section 501(c)(3) of the Internal Revenue Code, a nonprofit must file Form 1023; to be recognized under any other category listed in section 501(c), a nonprofit must file Form 1024. The EIN application may (but need not) be filed at the same time as the application for tax-exempt status.

C) Maintaining a nonprofit corporation

All nonprofit corporations must prepare two types of annual reports. First, a nonprofit corporation that chooses to be a membership organization in its articles of incorporation must submit annual financial statements to its members consisting of a balance sheet and a statement of operations for the year. Second, a nonprofit corporation must file an annual report with the secretary of state that generally includes the following:

  1. Name of the corporation and the state or country where it is incorporated
  2. Address of its registered agent
  3. Address of its principal office
  4. Names and addresses of its directors and officers

Some states may require additional information or financial reports in the annual report.

In addition, if the nonprofit corporation is tax exempt, it must file an annual information return with the IRS, normally by returning IRS Form 990. Nonprofits with gross earnings less than $50,000 per year may be eligible to file a shorter, electronic report such as Form 990-N or Form 990EZ.

D) Amending the articles of incorporation

It’s not uncommon for a nonprofit to amend the articles of incorporation. For example, the required IRS statements may not have been included or the organization’s status as a legal “membership organization” may have changed. Generally, a nonprofit corporation may amend its articles of incorporation at any time as long as the amendment is adopted by the board of directors and approved by the members, if any, entitled to vote on that type of action. Similarly, unless the articles of incorporation provide otherwise, general amendments to the nonprofit’s bylaws may be adopted by the board of directors. The IRS requires tax-exempt nonprofits to report any material changes in their purpose, character, or methods of operation as they occur.

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Liability

This section addresses both Unincorporated Nonprofit Associations (UNAs) and incorporated nonprofits.

Incorporated nonprofits

As a general rule, the personal assets of those who participate in an incorporated nonprofit (either as members, volunteers, participants, directors, officers, or otherwise) are protected from liabilities that the nonprofit incurs. Many vendors will find this an attractive benefit of incorporation.

Unincorporated nonprofit associations

Although a UNA is an incredibly fast and easy option for organizing a farmers market, it may come with a steep cost. If the organization incurs a liability or debt that it cannot pay, the personal assets of each member of the UNA are generally at risk. For example, a court could decide that the creditor may pursue the assets of all or any of the farmers market members personally in return for the debt. There are exceptions to this general rule—California and Texas UNAs may be at less risk, for example, because those state laws explicitly limit the personal liability of UNA members.

The risk can be magnified in a loosely organized UNA. Let’s say one person causes the liability or incurs the debt. For example, one of the UNA members signs an agreement on behalf of the farmers market to lease a parking lot on Saturdays for $500 each week. Given this act was done on behalf of the organization, all the other UNA members could be personally liable for that debt—not just the person who signs it. Many states have created exceptions to this rule—only the person responsible for the injury or debt will be personally liable for it in many cases. It’s also worth remembering that some states limit personal liability for UNA members, so the point may be moot anyway. UNA laws vary by state and individual research is necessary.

Either way, a farmers market can limit the potential impact of personal liability by purchasing insurance that will cover some or most of the farmers market’s liabilities. However, insurance isn’t available to cover debts an organization can’t pay off. In addition, insurance coverage is generally not available for unincorporated entities and would instead have to be purchased by the individual owners. Farmers markets that choose to operate as a UNA can control this risk somewhat with clear operating procedures that grant authority to take specific actions only to specific persons under specific circumstances. However, for many vendors, the possibility of being at personal risk for the liabilities and debts of the farmers market is too much to bear. These markets will likely consider incorporation as a form of protection.

An example of liability protection

Examples are the best way to illustrate the difference in liability between an unincorporated and incorporated nonprofit. Let’s say that a customer trips and falls while purchasing a T-shirt from the station where the farmers market sells tote bags, T-shirts, and gift certificates for the farmers market itself. If the farmers market is unincorporated, the injured person would file the lawsuit in the name of each vendor individually. If the farmers market is incorporated, the lawsuit would be properly filed in the name of the farmers market itself.

crowd of people at the capital city farmers market in montpelier, vermont

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In both cases, the farmers market will ideally have an insurance company that will defend the case and pay on any judgment that results. But, say the judgment for the injury exceeds the policy limits. The injured person could go after individual vendors of a UNA for more compensation. In an incorporated farmers market, the injured person could only go after the assets of the farmers market itself for more compensation. In both cases, insurance is the primary risk management strategy. Incorporation is an excellent secondary risk management strategy to further protect individual vendors.

The nonprofit corporation is on the hook for civil and criminal wrongs of its agents

An incorporated nonprofit itself is always liable for actions taken by its members, directors, officers, volunteers, and employees. For example, if a board member, volunteer, or employee violates a law, causes an injury, enters into a debt, or does something else legally wrong in the course of their duty to the nonprofit, the nonprofit will be responsible to satisfy the judgment. Again, nonprofits carry insurance and have carefully written and enforced operating procedures to protect against these risks. If the nonprofit does not have insurance to cover a judgment against it, the aggrieved person can take the assets of the nonprofit.

For a detailed discussion on when a corporation may generally be held liable for actions taken by members, directors, officers, volunteers, and employees, see Corporations page.

Directors and officers are on the hook if they breach fiduciary duties

There is an exception to the general rule that incorporated nonprofit directors, officers, and employees are not personally liable for their actions on behalf of the nonprofit. Circumstances exist where board members and employees could become personally liable for actions they take while fulfilling their duties to an incorporated nonprofit. A nonprofit’s directors and officers may be held personally liable for any harm to the corporation resulting from his or her breach of fiduciary duty. As in the for-profit context, the directors and officers of a nonprofit owe a “duty of care” and a “duty of loyalty” to the corporation.

For a detailed discussion of fiduciary duties, see the Liability tab under Corporations.

Duty of care means acting appropriately

Briefly, the duty of care requires a nonprofit’s directors and officers to act in good faith and with the care that a person in a simliar position would reasonably believe appropriate under similar circumstances. In making decisions on behalf of the corporation, directors and officers may rely on information provided by officers, employees, legal counsel, and accountants, so long as the director or officer reasonably believes the individual is competent to provide such information. What does this mean? Basically, it means that the directors must make rational and informed decisions.

Examples can illustrate the duty of care. Let’s say that a farmers market is considering entering into an expensive lease at a fancy shopping center. The monthly lease rate is more than double the farmers market’s profits. But, the board of directors doesn’t even consider whether the market can pay before they authorize signing the lease—they don’t look at the budget or cash flow, they don’t ask how much the monthly lease rate is, they simply tell the executive director to sign the lease. This board of directors may have violated their duty of care: They didn’t make a rational, informed decision about the lease obligation. The nonprofit’s individual directors could potentially be personally responsible for making the lease payments should the farmers market be unable to make the payments.

Duty of loyalty means avoiding conflicts of interest

The duty of loyalty requires that a director not engage in transactions in which he or she has a personal financial interest. It also requires that directors ensure no “insiders” are benefitting personally from the nonprofit’s actions. All nonprofits are prohibited from benefitting specific persons individually. To make sure that doesn’t happen, most nonprofits have a conflict of interest policy. In fact, a conflict of interest policy is required to earn Internal Revenue Service (IRS) tax exemption. Such a policy typically requires directors to recuse themselves from voting on a matter where they have a specific interest. If an individual director violates the conflict of interest policy or if the board of directors disregards the policy, individual directors can become personally liable for the harm that results to the nonprofit.

Again, examples are helpful. Let’s say a farmers market seeks bids from contractors to build a new farmers market pavilion with restrooms and a certified kitchen. The board of directors is responsible for selecting the winning contractor. One of the board members submits a bid on behalf of the construction company he owns to do the work. That board member must reveal that he owns the company doing the bidding. And, the other members must evaluate bids fairly, inquire as to whether any other member has a personal interest in the bid, and, ideally, seek multiple bids on any significant project. Each of these actions ensure that the board members are making sure their activities don’t unduly benefit one person, especially one with influence over the organization.

If a director or officer acts consistently with the fiduciary duties of care and loyalty, he generally will not be personally liable for actions taken on behalf of the corporation. A nonprofit corporation may further limit directors’ and officers’ personal liability for acts done in good faith and in the best interest of the corporation by:

  1. choosing to indemnify the directors and officers for costs and liabilities incurred in their service to the organization, or
  2. purchasing liability insurance for directors and officers to reimburse the charitable organization for indemnification payments, to compensate injured third parties, or to reimburse directors and officers for liability payments not indemnified by the organization.

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Control & Decision-Making

In a nonprofit organization, there is no single owner who controls decision-making on behalf of the business. The following discusses how decision-making and control are handled for unincorporated nonprofits and nonprofit corporations.

Members are responsible in an unincorporated nonprofit association (UNA)

In a UNA, the members themselves are responsible for decision-making and control, and that can take on a wide variety of forms and structures. The members may simply decide everything by consensus. Or, all decisions might be made by a single person charged with serving the UNA’s mutual or public purpose. The varieties are infinite in a UNA. This is not necessarily the case in an incorporated nonprofit.

Incorporated nonprofits must start with a board of directors

Note that there may be relevant legal requirements for who may serve on a board of directors. For example, a 501(c)(3) charity must include independent board members to maintain its tax-exempt status.

As a 2008 Internal Revenue Service (IRS) guide for 501(c)(3) charities puts it: "Irrespective of size, a governing board should include independent members and should not be dominated by employees or others who are not, by their very nature, independent individuals because of family or business relationships. The Internal Revenue Service reviews the board composition of charities to determine whether the board represents a broad public interest, and to identify the potential for insider transactions that could result in misuse of charitable assets." 

An incorporated nonprofit must have a board of directors, which is generally in charge of high-level decisions. The board may delegate most day-to-day decision-making responsibility to officers and employees. (For example, for a market to become an authorized retailer for SNAP, the board would designate a responsible official to ensure that the market complied with relevant laws and regulations. The board would maintain a duty to oversee the responsible official. For more on a board's SNAP-related responsibilities, click here.)

Further, a nonprofit may elect to have voting members who participate in the governance and control of the organization by electing officers. These rules are written into the organization’s bylaws, with a few decisions being outlined in the articles of incorporation. The following provides an overview of the governing documents—articles of incorporation and bylaws—and the governing people—directors, officers, committees, and members.

Articles of incorporation

As discussed in more detail in the “Getting Started” section, articles of incorporation generally include key elements: a name for the nonprofit corporation; the address of the nonprofit corporation’s registered office and the name of the registered agent at that office; and the names of incorporators or initial directors.

The articles may include additional provisions regarding the organization’s purpose, the names and addresses of the initial directors, whether the organization will have voting members, and the rights and responsibilities of the directors and voting members, among other topics. Because articles of incorporation are difficult to alter or amend, they generally only contain those provisions that are unlikely to change during the organization’s existence.

A nonprofit may name its initial directors in the articles of incorporation. After filing the articles with the secretary of state, the initial directors must hold an organizational meeting to complete the organization of the nonprofit by choosing permanent directors, appointing officers, and, potentially, adopting bylaws. If the articles of incorporation do not name the initial directors, the incorporators must hold a meeting to elect directors and complete the organization of the nonprofit.

Bylaws help the nonprofit run smoothly

The wide majority of the rules that affect the governance of the nonprofit are written into the bylaws. To be clear, state law typically does not require that nonprofits have bylaws;  however, thorough bylaws help the nonprofit operate smoothly, while ensuring the organization has procedures in place to make sure state and federal obligations are met annually.

If a nonprofit corporation wants to apply for tax-exempt status, the Internal Revenue Service (IRS) will be looking for specific things, such as the organization’s conflict of interest policy. These are not necessarily required by the IRS as bylaw provisions, but many organizations choose to put such things in the bylaws. The website form1023.org is a helpful resource for creating bylaws that address IRS obligations.

If the nonprofit does not write detailed bylaws addressing procedural rules, default state law fills in. The Revise the Model Nonprofit Corporation Act (2008 RMNCA) sets forth a model that many states follow. Among other topics, these default rules address where board meetings may take place, whether directors may participate in meetings remotely, methods for taking board action without meeting, notice requirements, and quorum and voting requirements.

Succession Planning

It’s important for markets to think proactively about leadership changes before they happen. Keeping files organized and in one place can help create an easy, go-to spot for finding answers about the market and for ensuring continuity during transitions.  Learn more about how you can prepare for smooth transitions in Recordkeeping.

Both directors and officers are required

Nonprofit corporations are required to have two groups of governing people: directors and officers. Directors are the group of individuals responsible for the management of the activities and affairs of the nonprofit corporation. Most nonprofits refer to this group as their board of directors, their board members, or simply their board.

The nonprofit is also required to have officers. Officers are directors with specific roles within the board’s governance. (All officers are directors, but not all directors are also officers.) Generally, state laws require that the offices of president, treasurer, and secretary be filled. Two of the offices can be held by the same person, except the president and secretary must be held by different people. Officers are appointed or elected in accordance with the articles of incorporation and the bylaws, or as authorized by the board of directors.

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Legally speaking, the officers ensure that the directors’ legal obligations are met. For example, the board has a legal obligation to make informed decisions, and the treasurer is often responsible for reporting to the board on how decisions might affect the organization’s fiscal health. All nonprofits must assign one of the officers the responsibility for supervising the preparation of the minutes of the meeting and for maintaining and authenticating the records of the corporation. Typically, the board member who performs these duties is referred to as the secretary. The bylaws usually describe the exact role of the officers, which may vary across organizations.

Overall, the board of directors plays an organizational oversight role and delegates day-to-day responsibilities to officers or staff. Board responsibilities typically include establishing the nonprofit’s mission and purpose, providing financial oversight, engaging in strategic planning, and monitoring whether the nonprofit is achieving its mission and goals. Nonprofit boards may choose to elect an executive director to oversee the day-to-day implementation of the organization’s strategy; however, whether or not to have an executive director is entirely within the organization’s discretion.

Committees may be created for certain tasks

Nonprofit boards may create committees to perform tasks that are better suited to smaller groups of people. Under the 2008 RMNCA, the board may only create committees and appoint committee members upon approval from “a majority of all directors in the office when the action is taken,” or some other number of directors as specified in the organization’s governing documents. Also, the 2008 RMNCA subjects committees to the same procedural and voting requirements as those applicable to the board as a whole.

Board committees may be standing committees or ad hoc committees, and may or may not include staff or other non-board members. Standing committees are “permanent groups established in the bylaws as part of the board structure” (Managing Nonprofit Organizations, by Mary Tschirhart, Wolfgang Bielefeld, John Wiley & Sons, Inc., 2012. p. 221). In contrast, ad hoc committees are generally organized to handle short-term projects. Typical standing committees include audit and finance committees, human resource committees, and executive committees “made up of officers of the board to make decisions between board meetings” (Managing Nonprofit Organizations, by Mary Tschirhart, Wolfgang Bielefeld, John Wiley & Sons, Inc., 2012. p. 221). While committees may serve a broad range of functions and roles, under the 2008 RMNCA, they are prohibited from taking certain major actions, including authorizing distributions, electing or removing directors, and adopting or amending bylaws.

Members are legally defined as voting members

A nonprofit corporation may also choose to have voting members who, together with directors and officers, participate in the governance and control of the organization. Whether a nonprofit chooses to have voting members is entirely up to the nonprofit itself.   In general, a “member” is a person who has a right to vote to elect the organization’s directors. A nonprofit’s board of directors may adopt bylaw provisions granting members additional rights and responsibilities, possibly including the right to vote on major decisions like bylaw amendments, mergers, and dissolution of the nonprofit.

The appearance of the term “member” in the phrase "voting members" is potentially confusing because nonprofit organizations often call their donors “members” as well. Notably, although donors may receive special privileges associated with their “membership,” their donation does not confer any corporate responsibilities or voting rights. Thus, individuals who become “members” of a nonprofit by donating to the organization are distinct from “members” as legally defined in most nonprofit corporation statutes.

Deciding on a decision-making and governance structure

Models can be incredibly helpful as a nonprofit prepares its own bylaws. However, organizations should be cautious about relying too heavily on a model. There is no single correct way to structure decision-making and control within any organization. Often, the procedures evolve as the organization develops. For example, a farmers market may need more elaborate procedures for selecting and prioritizing vendor applicants as a market becomes more popular. The “right” procedure depends on the market’s specific needs, concerns, and goals or mission. A board of directors that represents the varied concerns and interests of a farmers market is often in the best position to create solid bylaws that work for everyone.

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Unincorporated nonprofit associations (UNAs) and the $5k threshold

As with any business operation, for-profit or nonprofit, a UNA is required to report activities to the IRS in an annual return. A UNA is allowed to file as if it has applied for and received tax-exempt status (even if it has not) so long as the nonprofit has annual revenues of less than $5,000. In this case, the nonprofit will complete the Form 990-N just as a tax-exempt incorporated nonprofit.

If the UNA generates more than $5,000 in annual revenue, it must still file a tax return. If it intends to be eligible for tax exemption, the organization must follow the formal process to become eligible. If it does not seek tax exemption, it must file tax returns as a partnership, with each member of the UNA receiving a share of any profits to report on personal tax returns. This outcome isn’t as significant if the nonprofit has no profit to report. But if the farmers market earns revenue above expenses and UNA members must pay taxes on it, the UNA will likely be motivated to do one of two things: manage revenue and expenses to eliminate profit, or apply for and receive tax-exempt status.

UNAs are eligible to apply for tax-exempt status with the Internal Revenue Service (IRS), just as regular corporations and Limited Liability Companies (LLCs) are, alongside nonprofit corporations. However, the paperwork required to file and maintain tax-exempt status can be a bit more streamlined if the organization forms a nonprofit corporation first.

Incorporated nonprofits

All incorporated nonprofits must file a tax return with the IRS. Which form the organization files depends on the nonprofit’s tax-exempt status. If the organization has earned tax exemption, it will complete Form 990 or, if eligible, a simplified version. If the organization has not earned tax exemption, it will file taxes as a corporation.

For instance, Wyoming Ave. Farmers Market is classified as a state nonprofit corporation and taxed as a corporation at the IRS level. Penny Shore, the original owner, originally incorporated as a for-profit corporation to protect her personal assets from liability. After a year, the market was transferred from that corporation to a new one that is a nonprofit corporation, primarily for the purpose of grant eligibility. Although the market does not currently receive grant funding, at the time that it incorporated as a nonprofit it was considering pursuing a Farmers Market Promotion Program grant. Additionally, Penny says that because the market's profits are not distributed to anyone, as they are reinvested in the market's mission, "it didn't make sense not to be a nonprofit." For this market, applying for federal tax-exempt status is cost prohibitive, so it has not been pursued. Furthermore, Penny does not foresee applying in the future—the market does not solicit donations from individuals, so deductibility is not an applicable benefit. Sponsoring businesses that have worked with the market are able to count financial contributions as business expenses, so deductibility is not a benefit there either.

Tax-exempt status

Technically, any entity can apply for and receive tax-exempt status if it meets the criteria laid out in the tax code. The nonprofit corporation is the most streamlined choice, but it’s not legally required for IRS tax-exempt status. States vary with respect to their tax treatment of nonprofits. In some states, incorporating as a nonprofit automatically qualifies an organization for exemptions from various state taxes, including income, property, and sales taxes. Other states only offer tax exemptions to those nonprofits that have already obtained a tax-exempt status from the federal government. Farmers markets organized as nonprofits will need to do state-level research to discover their state tax obligations. The remainder of this section focuses on federal IRS tax-exempt status.

With respect to federal IRS tax-exempt status, farmers markets have a few different options. The IRS recognizes several different categories of organizations as being tax exempt (including cooperatives). The categories of exemptions that apply to nonprofit corporations are listed in section 501(c) of the Internal Revenue Code.

Under section 501(c), there are four primary tax-exempt categories that may be applicable to farmers market organizations:

  • 501(c)(3) charitable organizations
  • 501(c)(4) social welfare organizations
  • 501(c)(5) labor, agricultural, and horticultural organizations
  • 501(c)(6) business leagues

These options are summarized in the table and discussed in detail below.

Table 1: Four primary tax-exempt categories

Table adapted from the Farmers Market Coalition.

IRS Status 501(c)(3) 501(c)(4) 501(c)(5) 501(c)(6)
Type Charitable Social Welfare Agricultural Business League
Exclusive Purpose of the Organization Public education; poverty relief; erecting public structures; lessening burdens of government; combating neighborhood tensions, community deterioration, and delinquency. Furthering the common good and general welfare of the organization’s local community (not only a specific group of people). Membership organizations must demonstrate that member services benefit the community as a whole. Promoting the interests of people raising livestock or growing crops through better conditions, improved products, or occupational efficiency. Improving business conditions for people with a common business interest. Must be an open membership organization providing membership support and collecting member dues.
Example of Qualifying Markets A market that serves as a public venue in a food desert, publishes a newsletter, does cooking demonstrations, offers nutrition education for schools and low-income populations, establishes SNAP programs, or donates excess produce. A market that improves/beautifies public areas, creates better community shopping opportunities, and attracts people to business district; recruits and supports vendors to revive local economy; donates to (c)(3)s. A market whose activities include promotion and education about local farm products, business strategy training for farmer vendors, or providing new marketing outlets for farmers. An organization whose activities include securing space for a farmers market, promoting a farmers market, providing vendor education and training services.
Donations Tax Deductible Yes No No No
Lobbying Allowed Yes, but it must be small legislation only, no elections. Yes Yes Yes
Primary Example Market Bellevue Farmers Market in Bellevue, WA, donates over $4,000 of produce each year to Hopelink, accepts WIC coupons, and offers free children’s entertainment and other community services. Palo Alto Farmers Market donates proceeds to an organization serving seniors. Heart of the City Farmers Market in San Francisco’s Tenderloin neighborhood provides fresh food to low income residents. Franklin Farmers Market’s first goal is to “provide a venue for family farms to sell what they produce”; this market distributed 27,000 lbs. of excess produce to food-insecure Franklin, TN, residents in 2008. Portland Farmers Market in Portland, OR, which operates four markets with vendor sales in excess of $5 million and is run by paid staff and an all-volunteer board, receives no city, state, or federal funding.
Additional Example Markets Webb City Farmers Market in MO, Hub City Farmers Market in SC, Tower Grove Farmers’ Market in  MO, Houston, TX. Tenino Farmers Market in WA Memphis Farmers Market in TN,  Rochester Farmers Market in NY, New Hope Community Farmers Market in MN, Hillsdale Farmers’ Market in OR, Portland Farmers Market in OR. The Bath Farmers Market aims to “provide a direct venue” for Maine farmers. Concho Farmers Market in AZ, Pendleton Farmers Market in OR, Athens Farmers Market in OH.

Note that the qualifying purpose—i.e., charitable or educational, etc.—must be exclusive, not primary. Just because the farmers market does public cooking demonstrations, offers education, and establishes itself in a food desert is not alone sufficient to qualify it for 501(c)(3) status. Similarly, donating produce, accepting WIC payments, and offering free children’s education may not alone be sufficient. In such cases, the exclusive purpose of the market must be devoted to education and alleviating the food desert status with product sales being a side note (and which would be taxable).

Below, we discuss each of these categories in turn, analyzing their requirements, restrictions on organizational purpose, and potential applicability to farmers markets.

Limitations on tax-exempt status

Nonprofit corporations may lose their tax-exempt status by engaging in commercial activities

Nonprofits, including those with tax-exempt status, are allowed to sell goods and services, and even to generate a profit. Having the flexibility to generate revenue in this manner may be relevant to many farmers market organizations: according to the USDA, the majority of farmers markets cover their operating expenses through fees for service.  That is, market leaders provide the service of coordinating and promoting farmers market events, and participating vendors pay fees to the organization in exchange for this service. However, if the farmers market has tax-exempt status, the market needs to be aware of very important limitations on their commercial activity.

Nonprofits with tax exempt status face two legal issues related to their commercial activities. First, if a nonprofit’s commercial activities are substantial, the nonprofit may lose its federal tax-exempt status. Second, even if a nonprofit’s commercial activities are very occasional or limited, the proceeds from those activities could still be taxed under IRS rules as “unrelated business income.”

To be tax exempt, a nonprofit organization must be organized and operated exclusively for exempt purposes. And, a nonprofit organization’s tax exemption may be denied or revoked if its activities are commercial in nature. Courts consider various factors to determine whether an activity is commercial in nature, including whether the nonprofit corporation

  1. is in direct competition with for-profit counterparts;
  2. sets its prices on the basis of formulas common in the for-profit retail context;
  3. engages in marketing;
  4. has hours of operation that are the same as those of comparable for-profit organizations;
  5. has employees;
  6. has employees that are trained; and
  7. does not receive charitable contributions.

For example, one court held that a religious organization that operated a vegetarian restaurant and health food store to advance its beliefs could not be tax-exempt because its activities were in direct competition with for-profit restaurants and health food establishments.

To apply this to a farmers market, let’s say the farmers market looks a lot like a grocery store. Perhaps it is open regular hours on each day of the week. Perhaps it has employees who assist customers and it does marketing in the community to attract buyers. The market may also assist vendors in setting prices that will be competitive as compared to grocery store prices for a similar locally grown product. This farmers market may be commercial in nature. Thus, tax exemption may be denied or revoked.

The purpose for this rule is to prevent regular for-profit businesses from the unfair advantage of nonprofits. If the nonprofit doesn’t have to pay taxes on profit and can use more favorable labor laws, it can undercut businesses. Policy makers have felt this is not good for the economy as a whole and have prohibited it through this restriction.

Nonprofits may be taxed on unrelated business income

Although a nonprofit may lose its tax-exempt status if a substantial portion of its activities are commercial in nature, federal tax law does allow exempt entities to engage in a certain amount of income-producing activity that is unrelated to its exempt purposes.   However, that income is taxable just as it would be if a regular business earned it.

Revenue from a nonprofit activity is taxable if:

  1. the activity is generally done within a trade or business;
  2. the activity is a regular, consistent part of the nonprofit’s operations; and
  3. the activity does not directly further the organization’s exempt purpose, such as education or relief of the poor.

For example, many farmers markets sell tote bags and T-shirts with their logo. Selling tote bags and T-shirts is generally something that regular businesses do. In fact, selling tote bags and T-shirts is primarily done by regular businesses, so the first criterion is met. Second, most farmers markets sell tote bags and T-shirts every time the market is held, so that means it’s a regular, consistent part of their operations. As to the third criterion, say the market earned its tax-exempt status because it educates the public about healthy foods and provides affordable food in a low-income area. Selling tote bags and T-shirts does not educate the public about healthy foods or directly contribute to the ability of low-income area residents to purchase healthy food. It might make the market more financially viable so it can continue to operate, but that’s not what the third criterion is about. The sales need to directly advance the exempt purpose. In this case, the market would need to count the sales as “unrelated business income” on its Form 990, and potentially pay taxes on that income.

If a nonprofit is simply incorporated under state law and doesn’t have federal tax-exempt status, the restrictions on commercial activity do not apply.

501(c)(3): Charitable organizations

The purpose

First, 501(c)(3)-qualifying organizations must be organized and operated exclusively for educational or charitable purposes (among others, with these purposes being the most relevant to farmers markets). Charitable purposes are defined as one of the following:

  • relief of the poor, the distressed, or the underprivileged
  • advancement of religion
  • advancement of education or science
  • erection or maintenance of public buildings, monuments, or works
  • lessening the burdens of government
  • lessening neighborhood tensions
  • eliminating prejudice and discrimination
  • defending human and civil rights secured by law
  • combating community deterioration and juvenile delinquency

The definition of a charitable purpose may seem straightforward but often is not. For example, “relief of the poor” can mean many different things to different people. The IRS has a long line of rulings that carefully articulate what is and is not relief of the poor. This is where receiving tax-exempt status becomes complicated. Markets that hope to be successful on the first try will greatly benefit from working closely with an attorney, advisor, or other advocate who has done detailed research into the qualifying purposes for a farmers market operation.

The organizational and operational tests

Second, the regulations provide that to obtain 501(c)(3) status, an organization must satisfy two tests: the organizational test and the operational test. The organizational test considers whether the organization’s articles of incorporation limit the purposes of the organization to exempt purposes and do not allow the organization to substantially engage in activities outside the exempt purposes. The operational test considers whether an organization, in practice rather than in official documents, engages primarily in activities which accomplish one or more exempt purposes.

Under the organizational test, a farmers market organization must write and enact its mission carefully in its application to the IRS. It is critical to finesse the mission. On at least one occasion, the IRS found that a farmers market organization did not possess a charitable purpose when the organization helped facilitate the sale of produce for the benefit of sellers because such activity was similar to a commercial enterprise.

Under the operational test, the Internal Revenue Code provides that to qualify for 501(c)(3) status, an organization must demonstrate that no part of its net earnings benefit a specific, private individual. Finally, 501(c)(3) organizations are prohibited from engaging in activities with the purpose of influencing legislation.

The public support test

A 501(c)(3) organization must also meet the “public support test.” This test is designed to separate private foundations from public entities. Most organizations would like to be public entities since they enjoy fewer restrictions and greater tax benefits. Generally, this test focuses on identifying where the organization gets its money—if revenue is largely from the public as a whole, the organization meets the test; however, the details are a bit more complex.

Organizations can meet either of two versions of the public support test. Both tests are measured over a five-year period. The first version of the public support test can be met in two ways. First, the test is met if an organization receives a substantial part (more than a third) of its total income from government grants, grants from other charities, and donations from the public. However, if more than 2% of the organization’s total support comes from a single individual, the portion above 2% does not count toward the one-third measure of public support. Alternatively, an organization which does not meet the one-third threshold may meet the public support test through “facts and circumstances.” The organization’s percentage of income from public sources may be as low as 10% if it is organized and operated in a manner to attract public support and if other circumstances—such as the makeup of the board of directors, its programming, and its accessibility to the public—all demonstrate that it is a public entity. The second public support test includes two elements. The organization must receive more than a third of its support from contributions from the general public, membership fees, and gross receipts from activities directly related to its tax-exempt purpose. Then, the organization must also receive no more than a third of its support from investment income and sales from activities unrelated to its tax-exempt purpose.

Examples of the public support test

Let’s explore a few basic situations where the various public support tests are NOT met. Let’s say a farmers market generates all of its revenue from the sale of merchandise. Another market might have a single benefactor that donates 95% of the organization’s revenue each year. A third market might receive the bulk of its income from leasing space to vendors. These farmers markets would likely fail the public support test because their income doesn’t come from a spectrum of the public at large. Instead, it comes from unrelated sales, a single benefactor, and fees for service. These tests can be difficult and complex, especially for organizations that don’t yet know where their support will come from! Markets going down this path should seek information from the IRS and from organizations that support nonprofit entities.

Benefits of 501(c)(3) status

The primary benefit of the 501(c)(3) classification is that only donations to 501(c)(3) charitable organizations are tax deductible. Therefore, if a farmers market hopes to rely on contributions from individual donors as one source of revenue, it may be at a disadvantage if it does not qualify as a 501(c)(3).

In general, only 501(c)(3) charitable organizations and government agencies can use volunteer labor without triggering minimum wage and overtime requirements under the Fair Labor Standards Act. Because a significant number of farmers markets depend on volunteer labor, this is a particularly significant benefit. For more information, see the employment and labor law risks page.

501(c)(4): Social welfare organizations

Social welfare organizations are entities that focus on advancing some type of social need. Specifically, social welfare organizations function to advance the common good and general welfare civic betterments and social improvements. They are expected to engage in activities that benefit the community in its entirety, rather than merely its own membership or other select groups of individuals or organizations. Accordingly, the Internal Revenue Code provides that only the following types of organizations are eligible for tax exemption under section 501(c)(4):

  • Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare
  • Local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes

In addition, to qualify for 501(c)(4) tax-exempt status, an organization must demonstrate that no part of its net earnings inure to the benefit of any private shareholder or individual.

A farmers market may be eligible for 501(c)(4) status to the extent that it is operated exclusively for the promotion of social welfare. Arguably, farmers markets promote the common good and general welfare of the community by increasing farmer profits, facilitating consumer access to affordable, fresh, and nutritious agricultural products, and generating economic benefits for local communities. Thus, tax exemptions under 501(c)(4) may apply to farmers markets. Moreover, 501(c)(4) organizations are not subject to the organizational and operational tests, and, thus, may have more flexibility to pursue a range of purposes.

501(c)(5): Labor, agricultural, or horticultural organizations

The purpose of 501(c)(5) organizations is to better the conditions of workers, improve the grade of their products, or improve labor efficiency. As Treasury Department regulations explain (26 CFR 1.501(c)(5)-1):

The organizations contemplated by section 501(c)(5) are those which: (1) have no net earnings inuring to the benefit of any member, and (2) have as their objects the betterment of the conditions of those engaged in labor, agricultural, or horticultural pursuits, the improvement of the grade of their products, and the development of a higher degree of efficiency in their respective occupations.

The IRS explains that if an agricultural or horticultural organization’s activities are directed toward the improvement of marketing or other business conditions as opposed to developing better agricultural and horticultural products, it will not qualify for exemption under section 501(c)(5). Because many farmers markets are organized primarily for marketing purposes, they may be ineligible for 501(c)(5) tax-exempt status.

501(c)(6): Business leagues

A business league is an association of persons having some common business interest, which conducts activities to improve business conditions of one or more lines of business, but which does not perform particular services for individual persons. Common examples of business league organizations are chambers of commerce and trade associations in which no part of the net earnings benefits particular individuals.

IRS regulations (7.25.6.1.1 (10-19-1998)) explain:

A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. Thus, its activities should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons. An organization whose purpose is to engage in a regular business of a kind ordinarily carried on for profit, even though the business is conducted on a cooperative basis or produces only sufficient income to be self-sustaining, is not a business league.

Although it may seem that farmers markets are associations of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit, at least three IRS rulings reached contrary decisions. For example, the IRS found that a small group of vendors that wanted a place to sell their produce as well as stimulate interest in and demand for locally grown products, was not a “business league” for purposes of 501(c)(6) because their activities were not aimed at the improvement of business conditions of one or more lines of business. Rather, the group was performing particular services for members—in other words, the farmers market served only as a convenience to those vendors who sold at the market.

The IRS declined two additional 501(c)(6) applications from farmers market organizations that were not entirely vendor-run. Specifically, the IRS found that the applicants did not improve business conditions of one or more lines of business generally, but rather improved the specific business conditions of participating farmers. Under current IRS precedent, 501(c)(6) tax-exempt status may not apply to farmers market organizations.

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State and Federal Laws Governing Nonprofits

When it comes to how nonprofits allocate responsibilities and make decisions, each organization has wide latitude to create systems that work for them. The bylaws are each nonprofit’s opportunity to write the rules that govern its internal operation. Incorporated nonprofits are generally required to write basic bylaws according to state law. Further, the Internal Revenue Service (IRS) also requires a copy of the organization’s specific policies, often included in the bylaws, in any tax-exemption application. Many nonprofits do not take the time to write thorough bylaws or consider what will work best for their operation. This might meet the organization’s legal obligation but it sacrifices smooth operations. Utilizing the bylaws to create efficient governance is discussed in the Leadership section.

State laws provide a backup to bylaws

Where nonprofit bylaws are unclear or absent, state law provides a “back-up” set of rules that will govern how the nonprofit should operate. The UNA is a bit unpredictable when it comes to “back-up” rules. Only a few states have created a specific set of laws that govern UNA administration. Most states leave the issue to “common law,” which is the body of law that has emerged through court decisions and precedent rather than by the creation of a legislative body. These laws can be harder to summarize, find, and apply than statutory laws.

Nonprofit corporations are governed by statutes in every state, which vary from state to state. The two most common sources of nonprofit corporation law are the 1952 Model Nonprofit Corporation Act (1952 MNCA) and the 1988 Revised Model Nonprofit Corporation Act (1998 RMNCA). There’s also the 2008 Revised Model Nonprofit Corporation Act (2008 RMNCA). The 1988 RMNCA is the most widely used by states and accordingly, this toolkit's descriptions of nonprofit law refer to it unless stated otherwise.

For example, the RMNCA states that if the bylaws don’t specify where an annual and regular meeting shall take place, then the meetings shall take place at the corporation’s principal office. This may not be very convenient for a nonprofit. The corporation’s principal office as registered with the state is probably the home of one of the original employees or board members of the nonprofit, which may not be where meetings actually take place! To use another example, the RMNCA states that an act of the nonprofit is approved if 80% of the members/directors approve of the action. Some nonprofits prefer 100% approval of actions, while others are content with the approval of a simple majority of members or directors.

State law also sets some baseline rules with which all nonprofits must comply. Bylaws cannot override these state laws. For example, nonprofits are prohibited from using their resources and programs to benefit specific persons individually. If a nonprofit writes bylaws that allow this, those sections of the bylaws are invalid. Each state’s association of nonprofits can provide more information on state-specific laws. For example, the Minnesota Council of Nonprofits publishes sample bylaws for a Minnesota nonprofit that are annotated with the specific provisions Minnesota law requires.

Federal laws provide additional limits

Notably, once incorporated at the state level, a nonprofit may choose to apply for federal tax-exempt status under Section 501 of the Internal Revenue Code. If a nonprofit successfully obtains federal tax-exempt status, it becomes subject to additional limitations on its mission and activities, as discussed in the Taxation section.

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Frequently Asked Questions

  1. How does this legal information apply to farmers markets that are programs of an existing or new nonprofit organization, such as an umbrella organization?
  2. What about benefit corporations? Are they nonprofits?
  1. How does this legal information apply to farmers markets that are programs of an existing or new nonprofit organization, such as an umbrella organization?

    Many farmers markets are not stand-alone enterprises. Rather, the farmers market is just one of perhaps a few programs run by a nonprofit. This can be a terrific arrangement, both for the farmers market and for the nonprofit host or umbrella organization. The farmers market doesn’t have to go through the work of forming a separate entity and the existing nonprofit gets another way to meet its mission. Many farmers markets start this way out of convenience— it’s a quick, easy way to access the infrastructure (bookkeeping and accounting support, especially) necessary to running a good market. Eventually, some farmers markets later separate from their “parent” nonprofit and form their own, once they have the staff and revenue to build their own nonprofit framework. Other farmers markets are happy to exist indefinitely as a program of a nonprofit organization. Still other farmers markets start out as their own nonprofit and later decide to merge with another organization. These arrangements all come with the same legal obligations described in this section.

    Legally speaking, the parent nonprofit is responsible for all the business entity and tax issues of their individual programs, including any farmers markets they support. This means that the parent nonprofit is responsible for:

    • determining if the farmers market fits within the parent organization’s tax-exempt purpose
    • accounting for any unrelated business income and pay the appropriate taxes on that income
    • ensuring that the assets of the nonprofit are not used to benefit any specific individual, as required by their status as a nonprofit corporation

    Parent nonprofits handle these obligations in a wide variety of ways. They may be heavily involved on a day-to-day basis in the farmers market operations or they may take a hands-off approach, perhaps by asking for annual reports regarding activities and financials. Neither approach is right or wrong, provided that the nonprofit is ensuring its legal obligations are met.

    For more general information on the relationship between farmers markets and umbrella organizations, click here.

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  3. What about benefit corporations? Are they nonprofits?

    Benefit corporations have social or environmental purposes in addition to a profit motive, but they are still for-profit companies.

    Key differences between a benefit corporation and a non-profit corporation

    Although the benefit corporation has a social purpose, it is a for-profit business. As with any for-profit business, the owners have exclusive rights to all profits or losses that the farmers market as whole generates (not the profits or losses generated by individual vendors). Any donations would not be tax deductible, and, like any for-profit business, the benefit corporation is limited in its ability to legally use volunteers or unpaid staff. More on that here.

    For more information on benefit corporations, click here.

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Farmers Market Legal Toolkit