New York Incorporation, LLC, and Not-for-Profit Information

The formation document required to file a corporation in New York is called the Certificate of Incorporation. The information listed in the Certificate of Incorporation includes, but not limited to, the name of the company, purpose, county in which the office of the corporation is to be located, shares, par value, service of process address and registered agent address.

New York law does allow for the formation of Professional Corporations (PC's). The company name must include the profession being practiced and can include the abbreviation P.C. in the company name. Consent from the Department of Education is required for most PC's. PC's formed for attorneys will only require a certificate of good standing from the associated appellate division.

Corporations are managed by their Board of Directors. The minimum number of directors required in New York is 1 and they must be 18 years old. The Board of Directors elects the company officers, President, Vice President (if applicable), Secretary and Treasurer. The terms of office are stipulated in the company bylaws.

The company bylaws regulate the way in which your company will be run. The bylaws are adopted at the initial meeting of the directors and are updated as needed. Included in the bylaws will be information on director/shareholder meetings, voting responsibilities, stock issue procedures and other operating procedures.

Corporations may be required and should keep the bylaws available for review at their principal place of business along with the names and addresses of directors, officers and shareholders, minutes of all director and shareholder meetings, records of actions taken by directors or shareholders without a meeting, record of all shareholders and their number and class of shares, a copy of the formation document and any amendments thereto, and the company’s most recent annual report.

All New York corporations will be required to file a biennial statement every two years with the Department of State. The statement will request updated information on the name and address of the chief executive officer, the principal executive office, and the address for service of process. The statement is due during the month of formation starting the second year after formation. Failure to file the statement within 60 days of its due date will result in the company being marked as delinquent in its filing.

Note: The New York Department of State has the statutory right to charge a $250 penalty to entities that do not file the biennial statement on time. It is not currently being enforced but may change without notice.

Corporations can register an Assumed Name (DBA) with the Department of State Division of Corporations. If a corporation desires to conduct activities under a name other than its true legal name, a certificate complying with Section 130 of the General Business Law must be filed with the New York State Department of State. The DBA name must meet the same name availability requirements as a newly formed entity, however, cannot include the corporate endings "corporation", "incorporated" or "limited" or an abbreviation of one of such words.

All other entities such as general partnerships, sole proprietorships, and limited liability partnerships file an Assumed Name Certificate directly with the county clerk in each county in which the entity conducts or transacts business.

The Business Corporation Law provides a procedure for voluntarily dissolving a domestic corporation by filing a Certificate of Dissolution pursuant to Section 1003 of the Business Corporation Law with the New York Department of State.

All Corporation Certificates of Dissolution must be submitted with the consent of the New York State Department of Taxation and Finance.

If the corporation has done business in and incurred tax liability to the City of New York the consent of the New York City Commissioner of Finance must be attached to the Certificate of Dissolution as well.

New entities should obtain a Federal Tax Identification Number (FTIN), also known as an Employer Identification Number (EIN), from the IRS. This number will be required to open bank accounts, have employees, apply for business licenses, file tax returns, etc.

Further, if your corporation wants to apply for S-Corporation Election it should be applied for right after formation. In New York an application for S-Corporation Election is required to be filed with the IRS and the New York Department of Taxation and Finance. Visit http://www.irs.gov for more information on federal tax requirements.

As all companies are different and have specific filing requirements we suggest that you speak with a tax professional to provide you with tax advice prior to organizing your company. For general tax information you can contact the New York Department of Taxation and Finance at http://www.tax.ny.gov.

The formation document required to file an LLC in New York is called the Articles of Organization. The information listed in the Articles of Organization includes, but not limited to, the name of the company, purpose, county in which the office of the corporation is to be located, service of process address and registered agent address.

New York LLC's are required to complete a mandatory publication process after the company is formed. Legal notice of the formation must be run in two newspapers, as designated by the county clerk, for six consecutive weeks. After the publication has run affidavits of publication and the associated certificate of publication must be filed with New York Department of State Division of Corporations.

Note: An LLC that is a theatrical production company is exempt from the publication requirement provided the words "limited liability company" appear in its name.

New York law does allow for the formation of Professional LLC's (PLLC's). The company name must include the profession being practiced and can include the abbreviation PLLC in the company name. Consent from the Department of Education is required for most PLLC's. PC's formed for attorneys will only require a certificate of good standing from the associated appellate division.

LLC's are managed by one or more members/managers. The members are like the shareholders of a corporation and are the owners of the company. The managers are like the officers of a corporation and run the company on behalf of the members. The minimum number of members required in New York is 1 and the company can be member managed. The terms of office of the members/managers are stipulated in the company operating agreement.

The company operating agreement regulates the way in which your company will be run. The operating agreement is adopted at the initial meeting of the members and is updated as needed. Included in the operating agreement will be information on member/manager meetings, voting responsibilities, membership interest and other operating procedures.

All New York LLC's will be required to file a biennial statement every two years with the Department of State. The statement will request updated information on the address for service of process. The statement is due during the month of formation starting the second year after formation. Failure to file the statement within 60 days of its due date will result in the company being marked as delinquent in its filing.

Note: The New York Department of State has the statutory right to charge a $250 penalty to entities that do not file the biennial statement on time. It is not currently being enforced but may change without notice.

The LLC must also keep detailed records of the company members, managers, articles of organization, operating agreement and tax returns for inspection at its principal office.

LLC's can register an Assumed Name (DBA) with the Department of State Division of Corporations. If an LLC desires to conduct activities under a name other than its true legal name, a certificate complying with Section 130 of the General Business Law must be filed with the New York State Department of State. The DBA name must meet the same name availability requirements as a newly formed entity, however, cannot include the LLC ending "Limited Liability Company" or the abbreviation "L.L.C." or "LLC".

All other entities such as general partnerships, sole proprietorships, and limited liability partnerships file an Assumed Name Certificate directly with the county clerk in each county in which the entity conducts or transacts business.

Within 90 days following the dissolution and the commencement of winding up the limited liability company, or at any other time that there are no members, a domestic limited liability company shall file Articles of Dissolution pursuant to Section 705 of the New York State Limited Liability Company Law. .

Tax clearance from the New York State Department of Taxation and Finance is not required.

New entities should obtain a Federal Tax Identification Number (FTIN), also known as an Employer Identification Number (EIN), from the IRS. This number will be required to open bank accounts, have employees, apply for business licenses, file tax returns, etc. Visit http://www.irs.gov for more information on federal tax requirements.

As all companies are different and have specific filing requirements we suggest that you speak with a tax professional to provide you with tax advice prior to organizing your company. For general tax information you can contact the New York Department of Taxation and Finance at http://www.tax.ny.gov.

The formation document required to file a Not-For-Profit corporation in New York is called the Certificate of Incorporation. The information listed in the Certificate of Incorporation includes, but not limited to, the name of the company, specific purpose, county in which the office of the corporation is to be located, names and addresses of the initial directors, service of process address and registered agent address.

Not-For-Profit corporations are managed by their Board of Directors. The minimum number of directors required in New York is 3 and they must be 18 years old. The Board of Directors elects the company officers, President, Vice President (if applicable), Secretary and Treasurer. The terms of office are stipulated in the company bylaws.

You can choose to have a members for your Not-For-Profit organization. The members have the exclusive right to elect directors, amend articles and bylaws, and vote on a merger or dissolution of the corporation. A membership structured Not-For-Profit organization normally benefits the members of the organization, such as a club or social organization. A Not-For-Profit organization that does not have members will be governed by its board of directors as is the case with most charitable organizations.

The company bylaws regulate the way in which your company will be run. The bylaws are adopted at the initial meeting of the directors and are updated as needed. Included in the bylaws will be information on director meetings, voting responsibilities, membership requirements and other operating procedures.

NFP corporations may be required and should keep the bylaws available for review at their principal place of business along with the names and addresses of directors and officers, minutes of all director meetings, records of actions taken by directors without a meeting, a copy of the formation document and any amendments thereto, and the company’s most recent annual report.

New York Not-for-profit corporations are not required to file Biennial Statements with the Department of State.

NFP Corporations can register an Assumed Name (DBA) with the Department of State Division of Corporations. If a corporation desires to conduct activities under a name other than its true legal name, a certificate complying with Section 130 of the General Business Law must be filed with the New York State Department of State. The DBA name must meet the same name availability requirements as a newly formed entity, however, cannot include the corporate endings "corporation", "incorporated" or "limited" or an abbreviation of one of such words.

The Business Corporation Law provides a procedure for voluntarily dissolving a domestic corporation by filing a Certificate of Dissolution, pursuant to Section 1003 of the Not-for-Profit Corporation Law, with the New York Department of State.

All Corporation Certificates of Dissolution must be submitted with the consent of the New York State Department of Taxation and Finance. Consent of the Attorney General is required for all Type B, C and D corporations and Type A corporations that holds assets at the time of dissolution legally required to be used for a particular purpose.

If the corporation has done business in and incurred tax liability to the City of New York the consent of the New York City Commissioner of Finance must be attached to the Certificate of Dissolution as well. Taxation

New entities should obtain a Federal Tax Identification Number (FTIN), also known as an Employer Identification Number (EIN), from the IRS. This number will be required to open bank accounts, have employees, apply for business licenses, file tax returns, etc.

In order to apply for tax-exempt status under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3) of the IRS code, and none of its earnings may inure to any private shareholder or individual. The company must file Form 1023 for charitable organizations or Form 1024 for other types of tax exempt organizations in order to apply for tax-exempt status. Visit http://www.irs.gov/Charities-&-Non-Profits for additional information.

As all companies are different and have specific filing requirements we suggest that you speak with a tax professional to provide you with tax advice prior to organizing your company. For general tax information you can contact the New York Department of Taxation and Finance at http://www.tax.ny.gov.