Business Formations 102 – Limited Liability Companies - Tully Rinckey PLLC CLE
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1 Graig F. Zappia, Esq. Tully Rinckey PLLC 441 New Karner Road Albany, New York 12205 518-218-7100 [email protected] Business Formations 102 – Limited Business Formations 102 – Limited Liability Companies Liability Companies ©2015
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Transcript of Business Formations 102 – Limited Liability Companies - Tully Rinckey PLLC CLE
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Graig F. Zappia, Esq.Tully Rinckey PLLC
441 New Karner RoadAlbany, New York 12205
Business Formations 102 – Limited Business Formations 102 – Limited Liability CompaniesLiability Companies
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About Your Presenter
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Tully Rinckey PLLC Partner. Graig represents small businesses, including medical
professionals, in their asset acquisitions and sales, corporate formations, corporate governance, commercial matters and succession planning.
He also represents private real estate owners, developers and financial institutions in all aspects of real estate transactions including closings, title review, contracts, zoning, and leasing, among other areas.
He represents employers and employees in public and private sector discrimination lawsuits, Fair Labor Standards Act and Family Medical Leave Act cases.
Graig received his juris doctorate from Albany Law School of Union University in Albany, N.Y. He received a bachelor’s degree from Siena College in political science.
Overview of Corporate Formation – The Overview of Corporate Formation – The LLCLLC
Relatively new form of legal entity that combines the limited liability of a corporation and the tax advantages of a partnership. Very flexible: can have various forms of management, free transferability, etc.
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All about taxation. Corporations and LLCs are different in how they are taxed. Because corporations are separate entities, they are taxed at the corporate rate, while LLCs are taxed based on Adjusted Gross Income of the owners.
A LLC can offer certain tax advantages over a corporation, including the availability of more deductions.
A LLC is not required to be a separate tax entity like a corporation; instead it can be a "pass-through entity" so that the LLC owners report business losses or profits on their personal tax returns, like a partnership.
LLC vs. Corporation - BasicsLLC vs. Corporation - Basics
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Professional LLCsProfessional LLCs One or more professionals may form a professional
service limited liability company (PLLC). A PLLC is formed by filing Articles of Organization pursuant to §1203 of the Limited Liability Company Law. “Profession,” as defined in §1201(b) of the Limited Liability Company Law, includes any practice as an attorney and counselor-at-law, or as a licensed physician, and those occupations designated in Title VIII of the Education Law.
For a listing of professional services, refer to the NYS Department of Education, Office of the Professions.
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The NYS Division of Corporations will reject any name for an LLC that is not distinguishable enough from existing names on file.
Records within the New York State Division of Corporations can be searched for availability. The DOS website (www.dos.ny.gov/corps/bus_entity_search.html) is a good resource to check out first to see if anyone else has the name, although it may not be all-encompassing.
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Choose the name of your LLCChoose the name of your LLC
Choose the name of your LLCChoose the name of your LLC Better option: ask the DOS - submit a written
request to the Department of State (“DOS”) in Albany to reserve your name.
There is a difference between available name vs. approved name.
Once approved, good idea to attach the name availability determination with your application when the rest of the LLC paperwork is filed.
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Federal Tax Identification NumberFederal Tax Identification Number• Your LLC may need to obtain a federal tax
identification number (also known as an employment identification number/EIN), which is similar to an individual's social security number.
• Generally, you will not need a separate EIN number for your LLC as long as you are the sole owner and the LLC has no employees.
• Check out the IRS website that has the necessary forms to file. It can all be done online at: http://www.irs.gov/businesses/small/article/0,,id=97860,00.html
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Articles of OrganizationArticles of Organization
Under §203 of the NYS Limited Liability Company Law, you are required to file the Articles of Organization with the state in order to form your LLC.
Fillable forms may be found online at: www.dos.ny.gov/forms/corporations/1336.pdf
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Articles of OrganizationArticles of Organization• Make sure you are using the name that was
approved by the DOS. You are required to fill in that name in three different spots – they MUST all match.
• The Articles of Organization must designate the county within New York State where the LLC’s office will be located. Enter only the name of a county in New York State. Do not include the street address.
• Who’s getting served? While it is alright to name the Secretary of State to be served on behalf of the LLC, choose someone (their attorney?) to receive a copy of any legal process.
• Who organized the company?• $200 fee to file. Can be expedited for an additional
fee depending upon the timeframe – same day, within 24-hours, etc.
• Credit Card Authorization Form can be used as well: http://www.dos.ny.gov/forms/corporations/1515-f-l.pdf
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Publication of the LLCPublication of the LLC Under §206 of the NYS Limited Liability Company Law, LLCs are
required to publish a copy of the articles of organization or a notice related to the formation of the LLC in two newspapers.
Which newspapers? Check with the county clerk for the newspapers that are designated for use within the county the LLC’s office is located.
Choose the publication correctly…may be costly. Affidavits of publication: the publisher of the notice of publication will
provide an affidavit of publication verifying the articles were in fact published and the date of publication. A Certificate of Publication, with the affidavits of publication of the newspapers attached, must be submitted to the New York Department of State
The fee for filing the Certificate of Publication is $50.
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Pursuant to §417 of the LLC Law, the members of an LLC are required to adopt a written operating agreement. This agreement sets forth the rights and obligations of the members and the LLC.
This document is drafted with the memberships’ recommendations and is not filed with the State.
Under the statute, the agreement may be entered into before, at the time of, or within 90 days after the filing of the Articles of Organization.
No penalty for not having an operating agreement.
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Operating Agreement of the LLCOperating Agreement of the LLC
Certificate of Amendment Domestic Certificate of Amendment Domestic Limited Liability CompaniesLimited Liability Companies
A domestic limited liability company may amend its Articles of Organization from time to time by filing a Certificate of Amendment pursuant to §211 of the New York State Limited Liability Company Law.
The completed Certificate of Amendment, together with the $60 filing fee, should be forwarded to the New York Department of State.
http://www.dos.ny.gov/forms/corporations/1358-f-l.pdf
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Certificate of Change Domestic Limited Certificate of Change Domestic Limited Liability CompaniesLiability Companies
A domestic limited liability company may change the name and address of its designated address to mail service of process, change its county location or make, revoke or change the designation of a registered agent by filing a Certificate of Change pursuant to §211-A of the New York State Limited Liability Company Law.
The completed Certificate of Change, together with the statutory fee of $30, should be forwarded to the New York Department of State.
http://www.dos.ny.gov/forms/corporations/1359-f-l.pdf
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Articles of Dissolution Domestic Limited Articles of Dissolution Domestic Limited Liability CompaniesLiability Companies
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 §705 of the New York State Limited Liability Company Law.
The completed articles of dissolution, together with the statutory fee of $60, should be forwarded to the New York Department of State, Division of Corporations.
http://www.dos.ny.gov/forms/corporations/1366-f-l-a.pdf
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Graig F. Zappia, Esq.Tully Rinckey PLLC
441 New Karner RoadAlbany, New York 12205
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