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Biblical Recorder:
Journal of the Baptist State Convention of North Carolina

Friday, April 2, 1999
Lawyers outline list of legal snares for churches
A church must have the consent of a majority of its total membership in order to incorporate.


By Ken Camp
WACO, Texas (ABP) - The day when churches were considered off-limits to lawsuits is gone, meaning congregations need to beware of legal snares, lawyers told participants at a church-state conference held on the Baylor University campus.

Three lawyers from the Ft. Worth, Texas, firm of Bourland, Smith, Wall and Wenzel spoke on "Keeping Your Church Out of Court: Pitfalls to Avoid as Seen From the Pulpit" during a conference sponsored by George W. Truett Theological Seminary and the Baptist Joint Committee on Public Affairs.

The lawyers identified several legal pitfalls common for churches:

  • Incorporation and operation. Neither incorporating nor declining to incorporate insulates a church from legal hassles, Shiela Korb said.

    A church must have the consent of a majority of its total membership in order to incorporate. While that may not be difficult for a new congregation, it can be a major hurdle for a long-standing church that continues to carry many non-resident or inactive members on its rolls, she said.

    Another problem is that unless churches review their articles of incorporation periodically, they may not realize their period of duration has expired.

    "The church's charter can be forfeited if this happens," she said. "It can be corrected by filing articles of amendment and making the period of duration perpetual."

  • Bylaws. Many churches do not understand that bylaws are required whether the congregation chooses to incorporate or remain unincorporated, Korb said.

    Bylaws must stipulate the requirements for a quorum, voting rights of members, information about how business meetings are called, the percentage vote required to approve items and who has authority to conduct business on the church's behalf.

    Bylaws also should clarify procedures for calling and dismissing staff, for disciplining or withdrawing fellowship from disruptive members and for amending the bylaws, the lawyer said.

  • Charitable immunity. A church may open its staff and volunteers to lawsuits if it fails to meet the requirements of laws protecting church workers from liability, Butch Korb told the conference.

  • Child abuse. "Any person who has cause to believe abuse or neglect has occurred has a duty to report," Korb said.

    Another pitfall is the failure of churches to implement prudent policies concerning the prevention of child abuse in a church.

  • Taxes. The IRS "$250-substantiation rule" stipulates that a donor must receive a receipt from the church for all contributions of $250 or more. The receipts must be provided prior to the filing of the donor's tax return. Otherwise, the IRS will deny the charitable deduction if the donor is audited.

    The "$75-disclosure rule" says the church must provide a donor at the time of a donation a receipt for a "quid pro quo" payment of more than $75. The receipt must state the amount of payment, the value of an item purchased, and stipulate that only the difference is deductible.

    For instance, a church may hold a golf tournament in which participants pay a set amount to participate with the understanding that proceeds go to a charitable cause. The church should provide participants a receipt noting the value of green fees, golf cart rentals and any souvenirs such as shirts or golf balls provided to those who play. The receipt should indicate that only the difference between the total entry fee and the total amount of the itemized list is deductible.

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