The Honorable Mark Alan Smith State Representative 4103 Lynn Drive El Dorado, Arkansas 71730-8668
Dear Representative Smith:
I am writing in response to your request, on behalf of the "Felsenthal Promotional Association," for an opinion on the proper distribution of assets of that entity. Specifically, you indicate that the Association "was an entity incorporated several years ago without any by-laws. Currently, there are six members and $6,000 left." Your question is this regard is "[w]hat is the legal and proper way to dispose of the money that is left?"
RESPONSE
I must decline to issue an opinion on this question as I am prohibited by statute from the private practice of law. See A.C.A. § 25-16-701. The entity you describe is presumably a private non-profit corporation. The person to whom the corporation normally looks for legal advice must be consulted on this question.
There are at least two different acts codified in the Arkansas Code of potential applicability. Former Ark. Stat. Ann. §§ 64-1901 to -1924, now codified as A.C.A. §§ 4-28-201 to -206, and 4-28-209 to -223 (1987) is the old "Arkansas Nonprofit Corporation Act," first enacted in 1963. There is also a newer "Arkansas Nonprofit Corporation Act of 1993," codified at A.C.A. §§ 4-33-101 to -1707. Generally, nonprofit corporations formed prior to January 1, 1994 are governed by the 1963 act and nonprofit corporations formed after that date are governed by the 1993 act. A nonprofit corporation incorporated prior to the enactment of the new "Arkansas Nonprofit Corporation Act of 1993" may, in any event, however, elect to be covered by the provisions of the new act by an amendment to its articles of incorporation (see A.C.A. § 4-33-1701). Determining which one of these acts is applicable and determining the procedure for distribution of the assets on what I assume is to be a dissolution will entail an analysis of the particular facts surrounding the corporation in question. Again, private counsel must be consulted for this purpose.
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh