Opinion No. 71-114 (1971) Ag ( 1971 )

** NOTE: Overruled or withdrawn by Opinion No. 87-135 (1987) ** CORPORATION — CHANGE OF STATUS (1) A corporation formed under the Business Corporation Act cannot file amended articles to change to a non-profit or charitable corporation nor can a non-profit or charitable corporation file amended articles to become a business corporation. (2) Non-profit, religious, educational or benevolent corporations are not required to adopt and file a corporate name ending in the word "corporation", "company", "incorporated" or "limited" or an abbreviation of one of these words. We have considered your request for an official opinion on the following questions: 1. "Can a corporation filed in this office under the Business Corporation Act, Title 18, file amended articles to change over to a nonprofit corporation? Could this also be done vice-versa?" 2. "Is a non-profit corporation required to file a corporate name ending in the word `corporation, company, incorporated, or limited', or an abbreviation of one of these words?" DISCUSSION OF QUESTION NO. 1: Neither the provisions respecting the formation of a religious, educational or benevolent corporation at 18 Ohio St. 541 [18-541] — 18 Ohio St. 594 [18-594] (1961) nor the provisions respecting the formation of a non-profit corporation, 18 Ohio St. 851 [18-851] (1970) et. seq., provide that a charitable or non-profit corporation it may be created by amending the articles of incorporation of a corporation organized under the Business Corporation Act. The Business Corporation Act nowhere provides that a corporation may be organized by the filing of amended articles of incorporation of a non-profit or charitable corporation. Under the general authority that a corporation may only be formed by the authority of the legislature and by the similar rule that a corporate charter may be amended only by statutory authority there would be no power to amend the corporate charter to change from a non-profit or charitable corporation to a business corporation or in the alternative to change from a business corporation to a non-profit or charitable corporation. OPINION, QUESTION NO. 1: It is, therefore, the opinion of the Attorney General that the answer to your first question is in the negative. That a corporation formed under the Business Corporation Act cannot file amended articles to change over to a non-profit or charitable corporation and that a non-profit or charitable corporation cannot amend its articles to become a business corporation. DISCUSSION OF QUESTION NO. 2: Subsection (a) of 18 Ohio St. 1.11 [18-1.11](a) (1961) provides that the name of any corporation formed under this Act may be in any language, but shall be expressed in letters or characters of the English language and shall end with the word corporation, company, incorporated or limited or an abbreviation of one of these words." A footnote to the word "act" in the above quotation states that the Act referred to is the Business Corporation Act. Therefore, it would appear that a corporation which is formed under any provisions not contained within the Business Corporation Act will not be bound by the language of Subsection (a) above. In addition, the provisions with respect to the formation of a religious, educational or benevolent corporation at 18 Ohio St. 541-594 [18-541-594] (1961), and the provisions respecting non-profit corporations at 18 Ohio St. 551 [18-551] (1970) et seq. do not provide that the corporate name of a non-profit corporation or charitable corporation contain any of the above terms as a part of the corporate name. Since there are no specific provisions requiring the use of any of the terms in the corporate name of a charitable or non-profit corporation and since Subsection (a) of 18 Ohio St. 1.11 [18-1.11](a) (1961) does not apply to corporations formed under provisions not contained within the Business Corporation Act, it would appear that such terms would not be required in the name of a charitable or non-profit corporation. OPINION, QUESTION NO. 2: It is, therefore, the opinion of the Attorney General that the answer to your second question is in the negative and that a non-profit corporation or a religious, educational or benevolent corporation would not be required to adopt and file a corporate name ending in the word corporation, company, incorporated or limited or an abbreviation of one of these words. (Gary M. Bush)