WSR 97-16-034

PROPOSED RULES

SECRETARY OF STATE

(Corporations Division)

[Filed July 30, 1997, 9:38 a.m.]

Supplemental Notice to WSR [97-08-076].

Preproposal statement of inquiry was filed as WSR 97-03-014.

Title of Rule: Chapter 434-120 WAC, Charitable solicitation organizations and charitable trust.

Purpose: To revise the form for charitable organization registration.

Statutory Authority for Adoption: RCW 19.09.075.

Statute Being Implemented: RCW 19.09.075.

Summary: There have been requests from constituents to clarify, review and revise the registration form and financial reporting requirements for charitable organizations.

Reasons Supporting Proposal: These rules update the form to comply with other WAC changes and simplify reporting requirements for charitable organizations.

Name of Agency Personnel Responsible for Drafting: Frances Sant, 505 East Union, 1st Floor, Olympia, WA 98504-0234, (360) 753-7120, ext. 261; Implementation and Enforcement: Colleen Kemp, 505 East Union, 1st Floor, Olympia, WA 98504-0234, (360) 586-8465.

Name of Proponent: Office of the Secretary of State, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 434-120-105 Description of the content of the registration form and solicitation report for charitable organizations.

Proposal Changes the Following Existing Rules: Information collected on the registration and renewal forms will facilitate better information for public disclosure. Use of the federal information tax return (990 and 990PF) and use of the uniform registration form, with the required addendum will be accepted.

Note: This information was published under a previous proposal in WSR 97-08-076. This supplemental notice is being filed in order to correct errors in the previous version and to accommodate comments that were received.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no fiscal impact being made on small business by this rule-making order.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Office of the Secretary of State, 505 East Union, 2nd Floor, Olympia, WA 98504-0234, on September 10, 1997, at 8:30.

Assistance for Persons with Disabilities Contact: Frances Sant, by September 8, 1997, TDD (360) 586-4250.

Submit Written Comments to: Frances Sant, P.O. Box 40244, Olympia, WA 98504-0244, FAX (360) 664-4250, by September 8, 1997.

Date of Intended Adoption: September 10, 1997.

July 30, 1997

Tracy Guerin

Assistant Secretary of State

AMENDATORY SECTION (Amending WSR 94-01-004, filed 12/1/93, effective 1/1/94)

WAC 434-120-105 Form. (1) Charitable organizations registering under this act shall use the ((combined charitable organization, charitable trust, and public benefit)) registration form available in the office of the corporations division ((or shall provide, by letter, the required information organized and topically sectioned in exactly the following manner:

(1) Section I. The name, address, and telephone number of the charitable organization; and the name under which the organization will solicit contributions.

(2) Section II. The name, address, and telephone number of the corporate officers, directors of the board, or persons accepting responsibility for the organization; and the names of the three officers, directors, or employees who receive the greatest amount of compensation from the organization. If this is a consolidated registration, then list the names of the three officers or employees of the parent organization.

(3) Section III. The purpose of the charitable organization; the names and addresses of beneficiaries or the selected group of persons or activities which the charitable organization supports; and to whom assets would be given in the event of dissolution.

(4) Section IV. Whether or not the organization has a federal income tax exempt status, and, if so, the basis. Attach a copy of the letter or other written proof of the status declaration if granted under 26 U.S.C. 501 (c)(3) by the Internal Revenue Service. Include the name, address, and telephone number of the entity that prepares, compiles, reviews, or audits the financial statement of the charitable organization.

(5) Section V. A financial statement in the form of a solicitation report, which includes the following information:

(a) From a newly formed entity that has not completed its first accounting year, the annual budget expenditures approved by the board of directors or other responsible person(s), which must clearly identify the reported figures as budget estimates not based upon actual funds expended; or, from an entity that has completed one or more accounting years but has not previously registered under this act, its actual expenditures from the preceding fiscal year, and its proposed budget for the coming fiscal year; and

(i) The number and types of solicitations planned; and

(ii) From the existing entity, total revenue for the preceding year and the amount that was used for the charitable purpose;

In addition, seven months after registration all newly formed entities shall file a six month report containing actual budget figures.

(b) From charitable organizations registering for the second or more years, the following information from the preceding fiscal year:

(i) The number and types of solicitations conducted;

(ii) The total dollar value of gross revenue received from solicitations conducted by or on behalf of the organization and from all other sources (including revenue from activities regulated by the gambling commission) received, which must equal the total revenue of the organization;

(iii) A solicitation report that contains the gross revenue applied to charitable purposes, fund raising costs, and other expenses, which are figured in accordance with WAC 434-120-125, including the amount of any compensation allocated to charitable purposes and paid to a commercial fund raiser or other entity, who is not a bona fide employee, as defined in RCW 19.09.020(1), for fund raising services; and

(iv) The name, physical address, and telephone number of any commercial fund raiser used by the organization.)). The secretary of state shall develop a form in compliance with this rule. The secretary's failure to affirmatively reject or return an incomplete registration or other filing that does not fully comply with these rules or chapter 19.09 RCW shall not excuse the failure to comply. The secretary may accept the Uniform Registration Statement developed by the National Association of State Charity Officials if accompanied by an addendum developed by the secretary for use in Washington, if the uniform form and addendum contain all of the information required by this rule.

(2) A registration form is not complete, and will not be accepted for filing, unless it includes:

(a) The name of the organization, and every address (including both physical address and any mailing address if different), telephone number(s), FAX number(s), and taxpayer identification number, including those of all offices, chapters, branches, and affiliates used in charitable solicitations reflected in the registration including any electronic mail or Internet addresses used by the organization;

(b) All of the names under which the organization will solicit contributions;

(c) If incorporated, the corporate name, unified business identifier number, state and date of incorporation, or if not incorporated, the type of organization and date established;

(d) The end date of its current fiscal year;

(e) The court or other forum, case number and title of all legal actions, if any, in which a judgment or final order was entered, or action is currently pending, against any organization or individual required to be identified in the registration. "Actions" include any administrative or judicial proceeding alleging that the entity has failed to comply with these rules, chapter 19.09 RCW, or state or federal laws pertaining to taxation, revenue, charitable solicitation, or recordkeeping, whether such action has been instituted by a public agency or a private person or entity;

(f) A list of all states where the organization is registered for charitable solicitations, including any other names under which the organization is currently registered or has been registered in the past three years;

(g) The name, address, and telephone number of the officers or of persons accepting responsibility for the organization;

(h) The names of the three officers or employees receiving the greatest amount of compensation from the organization;

(i) The purpose of the charitable organization, including, if applicable, the names and addresses of any specific beneficiaries which the charitable organization supports and to whom assets would be distributed to in the event of dissolution;

(j) Whether the charitable organization is exempt from federal income tax, and, if so, attaching to its initial registration a copy of the letter by which the Internal Revenue Service granted such status;

(k) The name and address of the person or entity with authority for the preparation of financial statements or the maintenance of financial information on behalf of the organization;

(l) The name, address, and telephone number of an individual with expenditure authority who can respond to questions regarding expenditures of funds, and the names and addresses of any commercial fund-raiser and any commercial coventurer who have the authority to expend funds or incur obligations on behalf of the organization;

(m) An irrevocable appointment of the secretary to receive service of process in noncriminal proceedings as provided in RCW 19.09.305;

(n) A solicitation report of the charitable organization for the preceding fiscal year including:

(i) The types of solicitations conducted; and

(ii) The name, physical address, and telephone number of any commercial fund-raiser, including any commercial coventurer conducting solicitations on behalf of the organization in Washington during the period covered by this report; and

(iii) Either:

(A) A copy of the charitable organization's federal informational tax return (Form 990 or Form 990 PF, but not Form 990 EZ) covering the period covered by this report. The form shall include lines on which to report the amounts reported on the return as "program services" and "total expenses"; or

(B) If, for the fiscal year covered by the report, the charitable organization either filed a federal informational tax return using Form 990 EZ, or did not file a federal informational tax return, (I) the total dollar value of all support received from solicitations, (II) the total dollar value of revenue from all other sources, (III) total expenditures, including amounts paid to or retained by a commercial fund-raiser, during the reporting period and (IV) the amount of those expenditures devoted directly to charitable program services. Amounts paid to or retained by a commercial fund-raiser include all revenue, as defined by WAC 434-120-025, including, without limitation, fees for services, contributions, proceeds from the sale of goods or services (including tickets to events), and all other revenue from solicitations;

(o) The form shall also include a space within which any charitable organization may provide additional information which the organization believes would be of assistance in understanding other reported information, or to provide context for reported information.

(3) Solicitation reports shall not report estimates, but shall report actual figures. If the organization did not directly or indirectly conduct any charitable solicitations in the previous accounting year, it shall file a supplemental registration form no later than the end of the ninth month after registering which provides a complete solicitation report with actual figures from the first six months of activity after registering, if its gross revenue from solicitations exceeds twelve thousand five hundred dollars during that six-month period or otherwise ceases to qualify for an exemption under WAC 434-120-100 (2)(c).

(4) A parent organization may file a consolidated registration form, including the solicitation report, when registering including the solicitation information required for each of its related foundations, supporting organizations, chapters, branches, or affiliates in the state of Washington, which are supervised or controlled by the parent organization. A parent organization may report financial information either separately or in consolidated form for all subsidiary organizations. A filing by the parent organization relieves each subsidiary organization identified in that filing of any duty to file independently. ((Alternatively, it may file a single combined solicitation report including funds raised by all such units of the parent organization and listing the individual names of all units who raised five thousand dollars or more in the preceding year.

(6) Section VI: A signed statement from the entity who prepares, compiles, reviews, or audits the financial statement who is listed under the requirement of WAC 434-120-105(4), attesting that the figures of the solicitation report are consistent with the organization's annual financial statement; and a written list of the copies of any annual or periodic reports on file that were made by the charitable organization and its subsidiaries, or affiliates, if any, which substantiate the figures; and

(7) An irrevocable appointment of the secretary to receive service of process in non-criminal proceedings.))

(5) All charitable solicitation organization registrations shall be signed by the president, treasurer, or comparable officer of the organization or, in the absence of officers, person responsible for the organization, whose signature shall be notarized.