Find out how to qualify your LLC to conduct business in New York.
If you own a company that was founded in a state other than New York, you must qualify or register it in New York in order to conduct business there. The requirements for qualifying your international (non-New York) limited liability corporation (LLC) to conduct business in New York are summarized below.
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What exactly is a Foreign LLC?
If your LLC was founded in another state, it is referred to as a foreign LLC in New York. In other words, being foreign does not imply being from another nation. Instead, it signifies that your company was formed under the laws of another state. A domestic LLC, on the other hand, is one that is created in the state in which it operates. This is a prevalent phrase in the United States. In Mississippi, for example, an LLC founded in Alabama is a foreign LLC.
Doing Business in New York
If you are “transacting business” or “doing business” in New York, you must register your foreign company with the state of New York, according to the LLC Act. (Both terms are used throughout the Act.) What exactly does this mean? Well, New York’s LLC Act, like most others, does not define “transacting business” or “doing business” with connection to international registrations.
State regulations determining when foreign enterprises must collect state sales tax in their state, on the other hand, give some advice on the subject. To be obligated to collect state sales tax on sales to citizens of a state, a firm must have a physical presence in, or nexus with, that state. In general, physical presence and nexus are synonymous and refer to:
a storage facility in the state
A shop in the state, an office in the state, or a sales representative in the state are all examples of state-based businesses.
Certain exclusions may apply, and the regulations become more convoluted in situations such as Internet sales. However, if you have an office, a shop, a warehouse, or workers in another state, you must register your LLC as a foreign corporation in that state.
Some Activities Are Exempt
The LLC Act in New York, as in other states, stipulates specific acts that do not constitute conducting business in the state. Among the objects mentioned are:
litigating or resolving a lawsuit; dealing with internal business activities, such as conducting member or management meetings; having a bank account in the state; and having an office, agency, or personnel in the state to handle your company’s own securities.
Check Section 803 of New York’s LLC Act for the exact legal explanation of each of these elements. This website contains an index to all of New York’s state statutes.
If your LLC’s only operation in New York is one or more of the activities mentioned above, you should not be required to register with the state.
Request for Authority
You must submit an Application for Authority with the New York Secretary of State to register your business in New York (SOS). The application form may be downloaded on the SOS website.
To complete the form, you must supply the same information that you would need to incorporate an LLC in your home state. However, since each state is different, there may be materials that New York requires that you did not need to submit when you initially formed your LLC. More precisely, for a New York registration application, you must provide:
your LLC’s name as it is registered in the state where it was founded
If your LLC’s original name does not include one of the phrases or abbreviations required by New York LLC laws (such as “Limited Liability Company” or “LLC”), you must indicate that you are adding one of those phrases or abbreviations to the LLC name for use in New York if the original name (also known as its “true name”) is not available in New York. the false name under which your LLC will do business in New York (you may require a fictitious name if the genuine name of your LLC is currently being utilized by another registered New York firm)
the state in which your LLC is formed the date your LLC was formed a statement that the New York Secretary of State is designated as the agent that will accept service of process (basically, legal filings) against your LLC in New York, as well as the address to which the SOS should mail any such process to your LLC if required by the state in which your LLC was formed If you are not required to maintain an office in the state where your LLC was formed, then the address of your LLC’s principal office a statement that your LLC is in existence in the state where it was formed at the time you are filing your application for registration the name and address of the authorized office or agency in the state where your LLC was formed that has a copy of your LL
You must additionally include one of the following:
a certificate of existence issued by the state in which your LLC is formed, or, if that state does not issue certificates of existence, a copy of your LLC’s articles of organization, or, if no articles of organization have been filed, a certified copy of the certificate filed as your LLC’s organizational base.
The blank application form that may be downloaded contains an extra section where you can submit information about who is filing the application. The filing cost for an application is $250.
In addition to submitting the application with the SOS, you must publicize the information included in the application once a week for six weeks in two newspapers in the New York county where the foreign limited liability company’s office is situated. The county clerk will pick one newspaper that will be printed weekly and one that will be produced daily. Section 802(b) of the New York LLC Act or this SOS FAQ page provide further information on this requirement.
What Happens If You Do Not Sign Up?
If your LLC does business in New York without a certificate of authority, it cannot sue in any New York court. However, the lack of a certificate of authority does not render your LLC’s contracts null and void or preclude your LLC from defending a case in New York. Furthermore, a member or management of an LLC is not accountable for the LLC’s contractual commitments or other liabilities just because the firm is or has been conducting business in New York without a certificate of authority.
Forming a Foreign Corporation
The regulations and standards for international qualifying in New York are identical whether your company is structured as a corporation rather than an LLC. However, you must use a separate application form, DOS-1335-f-a, Application for Authority. Forms and filing instructions are available on the website of the New York Secretary of State.