1.
Is it true that only a church or church denomination can
start a church?
No, that is not true. Although churches
and church denominations start new churches all the time, it
is not necessary to already have a church in order to start
a new one. Any group of people that wants to worship
together, even a small group, may start a church. In
addition, an individual may start a church on behalf of a
group.
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2.
Does a person have to be an ordained minister to start a
church?
No, a person
does not need to be an ordained minister prior to starting a
church. The Bible doesn’t teach that only currently
ordained clergy may start a church. Anyone who has
been called by God into the ministry is qualified to start a
church, and may thereafter be ordained through that church.
Individuals who were previously ordained through a church or
church denomination may start a church even if their
ministerial credentials have been revoked. If you believe
that you've been called by God to enter the full-time
ministry but you'd like to be ordained in a new church that
you start or help to start, rather than in an existing one,
you may be ordained in that new church.
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3.
Is a layperson (someone who is not an ordained minister)
qualified to start a church?
Yes, a
layperson is qualified to start a church for at least two
reasons. First, the Bible does not prohibit it but
more likely encourages it. The scriptures teach that we are
all ministers of the Word of God. And we’re all called
to spread the gospel of Jesus Christ and to “seek and save
the lost.” Second, starting a church is a personal
expression of the religious freedom that is guaranteed to
all citizens under the First Amendment of the United States
Constitution. Anyone who has been inspired by God to help
start a ministry, is qualified to start a church and may
thereafter help ordain someone else through that church.
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4.
Does any government body have authority to legislate where,
why, how or who may start a church?
No,
absolutely not! Contrary to what some may believe, no
government body in America, whether local, state or federal,
has authority to legislate where, why, how or by whom a
legitimate church may be started. Such legislation would clearly
be unconstitutional under the First Amendment. Imagine
a small town in America where most of the residents believe
in Jesus Christ, but where no “church" currently exists.
Consider the absurdity of a law that forbade the community
from starting a church unless it was done in a certain way,
at a certain time and place, or by someone with certain
credentials. If those requirements couldn’t be met,
the people would effectively be prohibited from worshipping
together. That happens in other countries. But it
doesn’t, or shouldn’t, happen here. When it comes to
erecting an actual church building, zoning codes are
important to keep in mind. But starting a legitimate church is
not the same thing as erecting a building. Those whom God has called into the ministry or
inspired to help start one, may start a
church without "state" sanctioning or involvement.
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5.
Can a church have just one member, or one family as its sole
members?
This is an interesting
question whose answer is "Yes" and "No." As a matter
of
constitutional and religious freedom, a church can
have only one member, or one family as its sole members.
One of the most wonderful things about living in America is
that we are free to believe anything we want, and act on
those beliefs, as long as they are not harmful or dangerous
to ourselves or to others, or violate any laws or any
clearly established public policy.
However, as a matter of tax
law - where a church takes the position that it should be
tax-exempt - a church may NOT have only one member, or
one family as its sole members. If that were allowed,
then anyone could call himself, or any family could call
itself, a church and stop paying taxes. But that is
not allowed. Therefore, any individual or family
attempting to start a "church" should not expect to secure
tax-exempt status, or to otherwise reduce or eliminate their
tax liability, in connection with that "church."
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6.
Why does every state have a nonprofit corporation law that
also governs "church corporations?"
The purpose
of the nonprofit corporation statutes of each state and the
District of Columbia is to give churches the opportunity to
incorporate
if they so desire. There are certain benefits
and advantages to incorporating a church. States
decided some time ago to allow churches to incorporate so
they could enjoy the many benefits and limited liability
that is afforded other corporations. Virginia and West
Virginia began allowing churches to incorporate only
recently. Among other advantages, the corporation
serves as a vehicle for promoting and carrying out the
activities of a church with more seamless participation in
our modern, business-oriented society. It also helps
protect church members from legal liability. Having said
this, it's important to understand that churches do not have
to incorporate.
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7.
Is church
incorporation a requirement?
No, church
incorporation is not a requirement. A church may
instead be formed as an unincorporated association of
individuals who come together for a common religious
purpose. Churches that choose to not incorporate will
still be able to secure federal tax exemption under IRC
Section 501(c)(3), if they so desire. The Internal Revenue
Code includes unincorporated association in the definition
of a "corporation" for the purposes of securing IRS
recognized tax exemption. Some churches may
choose to neither incorporate nor file the IRS exemption
application. I support and assist churches that choose to
take this route.
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8.
Do
you recommend church incorporation?
The vast
majority of churches choose to incorporate because of
the many benefits and advantages of doing so. For
example, a church corporation shields individual church
members from risks and liabilities that may be incurred by
the church. In addition,
a church corporation is qualified to own property in its
name, while an unincorporated association is not.
Also, a church corporation may sue and be sued. Which
is less risky than having the individual members of an
unincorporated association be sued for acts or omissions of
the church.
If individual
church members want to feel free to worship without the threat
of personal liability hanging over them, then I recommend
incorporation.
Anyone whom God has called to start a church
should carefully consider the pros and cons of forming a
religious corporation in their particular state. Anyone who
prefers to not incorporate or file IRS tax exemption forms
because it is contrary to their beliefs, I support those
views and stand prepared to assist them in starting a church
with little or no "state" involvement.
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9.
Is it possible to form a church as an association of
individuals and completely forego incorporating it?
Yes.
Churches may elect to organize as an
unincorporated association. While that isn’t prohibited,
ministries that choose that form potentially face risks and
liabilities in connection with the acts or omissions of the
association. The most common potential risk is that
each member of the association could face personal
responsibility for the debts and liabilities of the church.
In addition, an unincorporated association cannot legally do
many things that a corporation may do, such as own property
in its name. Having said this, I support new churches that
elect not to "request state approval" based on their beliefs
or personal convictions.
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10.
Is starting a church a constitutionally guaranteed act of
religious freedom?
Yes, starting
a church is most definitely a constitutionally guaranteed
act and expression of religious freedom. However, for
the purposes of tax law, which is a very important matter
for every church to consider, not just every "church" will
be considered tax exempt. The state has a compelling
interest in making sure that only "bona fide"
churches--those that are not formed solely for the purpose
of skirting the tax laws--secure tax-exempt status.
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11.
Why does the federal government have a test for what a
church is or is not?
The federal
“church” test is applied by the Internal Revenue Service
when it reviews the Section 501(c)(3) tax-exemption
applications of religious organizations. The test is
not meant to infringe on religious freedoms. Rather,
its intent is to help define a bona fide church for tax law
purposes only. A tax-exemption application is filed by
religious groups that want the IRS to recognize them as
churches, and therefore, exempt from federal income taxes.
If the IRS
does not receive an application from a religious group, it
does not automatically apply the test to that organization.
But when it does receive an application, it wants to make
sure that the applicant is a legitimate church, and not just
a scheme to avoid paying taxes. The criteria used to
evaluate church status are imperfect and even
short-sighted. They may even be legally challenged on
several constitutional grounds. But the goal of the test is
to help the IRS define the term “church” in a way that
doesn’t restrict religious freedoms, and yet prevents abuses
by groups, families or individuals that may want to unfairly
avoid taxation. If the “church test" did not exist,
then anyone, including individuals, families, and commercial
and social enterprises could claim “church” status to avoid
paying taxes. And that would harm legitimate churches.
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12.
Isn’t a church automatically tax exempt?
Yes, a
legitimate church is automatically tax exempt under federal
law and there is no requirement that it file Form 1023, the
501(c)(3) application for recognition of tax-exemption.
But an organization that would not pass the federal "church
test" is
NOT
automatically tax exempt, even if it elects not to file a
501(c)(3) tax-exemption application. Individuals,
families, commercial endeavors, or any other enterprise that
creates a scheme to reduce or eliminate their tax
liabilities under the guise of a "church," may be prosecuted
and required to pay taxes.
It isn't as
clear whether a church is automatically tax exempt under
state laws. Many states will automatically exempt a church
from taxation upon receiving an IRS "Determination Letter"
indicating that the church has been recognized as tax exempt
for federal tax law purposes. Many states require a separate
application together with an IRS Determination Letter. Each
new church start-up has to be evaluated on a case-by-case
basis to evaluate the prospects of securing local, state and
federal tax exemption without having to file any
applications at all.
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13.
Is filing an application with the IRS for 501(c)(3) tax
exemption required for churches?
No, a bona
fide church is not required to file a Section 501(c)(3)
tax-exemption application (IRS Form 1023) to be recognized
either as a church or as tax exempt. However, many churches
choose to file the tax-exemption application because of the
advantages they see in doing so. For example, a
tax-exemption determination letter makes it clear to church
members that their contributions are tax deductible.
Otherwise, members could never be sure, and that uncertainty
could discourage their willingness to make contributions,
especially substantial contributions, to the church.
In addition, every state and the District of Columbia, have
a set of laws that allow churches to secure exemptions from
some or all of the following taxes: corporate, income,
sales, use, personal property, and real property taxes.
Without an IRS determination letter, it could be difficult
to secure some of those exemptions. Also, vendors that
are asked to forego sales taxes for churches usually require
proof in the form of a determination letter.
Otherwise, they are hesitant to give a sales tax break to an
organization that may not be a legitimate church.
With
respect to ministers, religious organizations whose status
and ordination practices the IRS has evaluated and
recognized as tax-exempt, make it easier for their clergy to
claim “parsonage” or “housing allowance” exclusions on their
personal income tax returns, as well as other special clergy
tax privileges. Overall, a tax-exemption determination
letter from the IRS gives churches a stamp of legitimacy.
Not because the government has the right to approve of
churches, because it doesn't. But rather, because
Christian churches have good reason to claim all the
advantages of the tax laws, and to allow reasonable scrutiny
into their legitimacy in doing so.
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14.
Are churches free to ordain anyone they see fit to be in the
ministry?
Yes, churches
are absolutely free to choose whom they believe is fit for
ordination into the ministry. In fact, churches may
ordain many different kinds of ministers, including
ministers of music, of education, of youth activities,
etc…as well as ministers for the pastoral ministry.
When churches ordain their ministers, they do so in
accordance with their religious doctrine and principles.
That expression of religious freedom is a
constitutional right. However, a church's "ordained"
minister may not necessarily be considered a "minister" for
federal tax law purposes. To take advantage of the
special federal tax benefits that are available to clergy, a
minister must meet the requirements of the federal "minister
test."
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15.
Why is there a federal test for who is a "minister?"
The federal
test of who is a “minister” is strictly for federal tax
law purposes. The IRS has no right telling a
church who or how to ordain. But the IRS is not
required to extend the special tax privileges for bona fide
ministers to every person ordained by a church. Otherwise, a
church could literally ordain all of its employees, officers
and directors for the purpose of helping them avoid the
payment of taxes. That would be illegal under the tax
laws and potentially subject those individuals to
prosecution for tax evasion. It would also harm
legitimate churches.
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16.
Why is it important to be very careful about who we entrust
our church start-up to?
You will find that some of the
vendors and so-called "experts" who sell books and services
to assist a church start-up carefully omit specific
information about their credentials. They create the
impression that they're knowledgeable by repeating and
restating some facts about church-startups. They even peddle
resources that require legal expertise for their
effectiveness, but never mention where those resources came
from, or who wrote them. They speak as "pseudo-authorities"
hoping you'll simply ignore the fact that legally sound
resources should be written by legal professionals with
experience and expertise in the specific area of law. Some
hope you won't notice that their resources may have been
"hired out" to generic lawyers.
Despite their shortcomings and
lack of authority they boldly give legal advice, even on
their websites, much of which is ill-advised and plain
wrong. For example, when it comes to church-related policies
and procedures, constitutions and bylaws, and similar
documents, you should take special care not to be fooled.
Some of these vendors seem well-intentioned even if they
lack competence. Others seem to care less.
I have separately detailed
The
Five Most Important Things To Look For In Choosing A Book Or
Consultant To Use In Starting A Church. I highly
recommend that you read it carefully.
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17.
Is it true that we should include as many biblical concepts
as possible in our constitution or bylaws because we are
prohibited from bringing our Bibles into a courtroom?
No. Those are two of the most
dangerous fallacies that some non-authoritative vendors
create as they peddle their resources on the internet. It is
NOT true that we cannot bring or use our bibles in an
American courtroom. I can think of few suggestions more
absurd than that. If we find ourselves in a courtroom having
to convince a court that it should not entertain a
plaintiff's claim because it involves purely religious
matters, we would most definitely use our bibles to assert
that argument. This is one of the most obvious ways to help
a court understand what our specific religious convictions
are based on.
It is also NOT true that you
should include as many biblical concepts in your
constitution or bylaws as possible. That suggestion is based
on pure ignorance and a blatant lack of competence in
advising churches. You should never accept such advice from
anyone other than a legal professional with extensive
experience and expertise in working with churches. The
danger in throwing as many biblical concepts as possible
into a constitution or bylaws is that you cannot predict the
religious or biblical issues you may have to tackle in a
courtroom. But, in trying to be exhaustive, you end
up being exclusive. In other words, if you overlook
and fail to include a certain concept in your constitution
or bylaws, you give the opposition an opportunity to argue
that by not including it you intended to exclude it. This
can be very hard to overcome.
There are certain biblical
concepts that are important to include in a constitution /
bylaws. But, you should rely only on competent, experienced
guidance for these matters. Courts will not entertain claims
that require them to adjudicate purely religious matters.
Instead, they consider claims that are based on the
neutral (i.e., not religious) principles of law. A main
goal of your constitution / bylaws should be to define
relationships, duties and responsibilities in biblical or
religious terms for the specific purpose of insulating them
from legal scrutiny. Merely throwing as many biblical
concepts as possible into the document can be
counter-productive to that goal.
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