If you own a business that was created in a state other than Nebraska, you will need to qualify or register that business in Nebraska if you want to do business there. Here is an overview of the rules on how to qualify your foreign (non-Nebraska) limited liability company (LLC) to do business in Nebraska.
For Nebraska purposes, if your LLC is formed in another state, then it is known as a foreign LLC in Nebraska. In other words, foreign doesn't mean from another country. Instead, it means your business was organized under the laws of another state. A domestic LLC, on the other hand, is one that is formed in the state where it is doing business. This is common usage throughout the United States. For example, an LLC formed in Tennessee is a foreign LLC in Kentucky.
According to Nebraska's LLC Act, you are required to register your foreign company with the state of Nebraska if you are "transacting business" in Nebraska. What does this mean? Well, like most states, Nebraska's LLC Act does not specifically define what the phrase "transacting business" means in relation to foreign registrations.
However, state laws governing when foreign companies must collect state sales tax in their state provide some guidance on the issue. Under these laws, a business must have a physical presence in—or nexus with—the state in order to be required to collect state sales tax on sales to that state's residents. Generally speaking, physical presence and nexus are synonymous, and mean having:
Certain exceptions may apply and the rules get more complicated with things like Internet sales. Nevertheless, in general, if you have an office, a store, a warehouse, or employees in another state, you will need to qualify your LLC as a foreign company in that state. For more details, including some possible distinctions between physical presence and nexus, check Nolo's articles on Internet Sales Tax: A 50-State Guide to State Laws.
Like most states, Nebraska's LLC Act specifies certain activities that do not constitute transacting business in the state. The items listed include:
For the actual legal description of each of the listed items, check Section 21-157 of the Nebraska Revised Statutes. If your LLC's only activity in Nebraska is one or more of the listed items, you should not need to register with the state.
To register your foreign business in Nebraska, you must file an APPLICATION FOR CERTIFICATE OF AUTHORITY: FOREIGN LIMITED LIABILITY COMPANY with the Nebraska Secretary of State (SOS). You can download a copy of the required form from the SOS website.
To complete the form, you must provide more or less the same information that you need to create an LLC in your home state. However, since every state is a little different, there may be items that Nebraska asks for that you did not need to provide when you first organized your LLC.
For a Nebraska Certificate of Authority, you need to provide:
You also must include an original certificate of existence or equivalent document from the appropriate authority (like the secretary of state) in the state under where your LLC was organized. A certified copy of your articles or organization will not suffice. Submit the application in duplicate. The filing fee is $120.
If your LLC transacts business in Nebraska without a Certificate of Authority, it cannot bring a lawsuit in the state. However, not having a Certificate of Authority does not invalidate any of your LLC's contracts or stop your LLC from defending a lawsuit in Nebraska. In addition, members and managers of your LLC are not liable for the debts, obligations, or other liabilities of the LLC solely because the company transacted business in Nebraska without a certificate of authority
If your business is organized as a corporation rather than an LLC, the rules and requirements for foreign qualification in Nebraska are similar. You will, however, have to use a different application form, Application for Certificate of Authority to Transact Business. See the Nebraska Secretary of State website for forms and filing instructions.