To form a corporation in New York, you need to take the steps set forth below. You can also use Nolo's Online Corporation service, which will form a corporation for you with everything you need.
Your corporation's name must include the word "Incorporation," "Incorporated," or "Limited," or an abbreviation.
Your corporation's name must be recognizably different from the names of other business entities already on file with the New York Secretary of State. Names may be checked for availability at the New York Department of State Division of Corporations business name database.
You may reserve a name for 60 days by filing an Application for Reservation of Name with the New York Department of State Division of Corporations. The application must be filed by mail.
Your corporation is legally created by filing a Certificate of Incorporation with the New York Secretary of State (SOS). The certificate must include the corporation's name; the corporate purpose; the county in New York in which its main office is located; the stock structure (see "Issue Stock"); the designation of the SOS as the corporation's agent for service of process; and the name and address of the person to whom the SOS should mail any process received.
The SOS has developed an optional Certificate form that includes a general purpose clause and authorizes the corporation to issue 200 shares of common stock with no par value. If more shares and/or a par value are desired, rewrite this portion of the form to insert the desired number of shares and a statement of their par value or that they are without par value.
The certificate may be filed online or by mail. The fee for filing the Certificate of Incorporation is $125.
Every New York corporation must appoint the New York Department of State as its registered agent for service of process in the state. The Department will accept and forward legal papers on the corporation's behalf if it is sued.
Bylaws are an internal corporate document that set out the basic ground rules for operating your corporation. They are not filed with the state. Your corporation is not legally required to have corporate bylaws, but you should adopt them because they establish your corporation's operating rules, and help show banks, creditors, the IRS, and others that your corporation is legitimate. For corporate bylaw forms, see Nolo's website or Incorporate Your Business, by Anthony Mancuso (Nolo).
Keep your bylaws, meeting minutes, and other important corporate papers in a corporate records book. This can be a simple three ring binder or corporate records kit you order through a corporate kit supplier. Keep it at your corporation's principal office.
The incorporator—the person who signed the articles—must appoint the initial corporate directors who will serve on the board until the first annual meeting of shareholders (when the board members who will serve for the next term are elected by the shareholders). The incorporator must fill in an "Incorporator's Statement" showing the names and addresses of the initial directors. The incorporator must sign the statement and place a copy in the corporate records book. The statement need not be filed with the state.
You should hold your first meeting of the corporation's board of directors at which the directors can appoint corporate officers, adopt bylaws, select a corporate bank, authorize the issuance of shares of stock, set the corporation's fiscal year, and adopt an official stock certificate form and corporate seal. The directors' actions must be recorded in corporate minutes prepared by the incorporator or any of the directors and approved by the board of directors. Additionally, if the corporation will be an S corporation, the directors should approve the election of S corporation status. For corporate meeting minute forms, see Nolo's website or refer to Incorporate Your Business, by Anthony Mancuso (Nolo).
Issue stock to each shareholder in return for their capital contributions of cash, property, services, or all three. Small corporations usually issue paper stock certificates. Enter each shareholder's name and contact information in the corporation's stock transfer ledger.
New York corporations may issue stock with a par value or no par value. The certificate of formation must indicate which option is chosen. Par value is a set amount below which the stock cannot be sold--it has nothing to do with the stock's actual value. Shares without par value may be issued or sold at any price. See Nolo's article "What is Par Value Stock." Most small corporations issue no par value stock. This is reflected in the SOS certificate of incorporation form.
A share of stock in your corporation is classified as a security under state and federal securities laws that regulate the offer and sale of corporate stock. However, federal law exempts "private offerings:" a non-advertised sale to a limited number of people (generally 35 or fewer). See Nolo's Corporations FAQ for more details.
New York requires anyone selling securities to the public to register as a broker-dealer with the Investor Protection Bureau of the New York Attorney General. However, it is generally understood that this registration requirement does not apply to a small corporation planning the unadvertised private offering and sale of its initial shares that are exempt from federal registration. If you are unsure whether your corporation should register in New York, consult a qualified securities law attorney. For more information about New York registration requirements, see the Investor Protection Bureau Broker-Dealer and Securities Registration and Information Sheet.
All corporations doing business in New York must file a Biennial Statement with the Department of State every other year. The statement is due during the calendar month in which the corporation's original certificate of incorporation was filed. The statement is filed online.
Additional tax and regulatory requirements apply to your corporation. These include:
New York State Taxes: New York State Tax Law requires a corporation to file franchise tax reports and pay franchise taxes annually even if the corporation does not conduct business or loses money. Franchise tax requirements begin the date the corporate existence begins and continue until the corporation is legally dissolved by the Secretary of State. For more information, visit the New York Department of Taxation and Finance website.