If you own a business that was created in a state other than New Hampshire, you will need to qualify or register that business in New Hampshire if you want to do business there. Here is an overview of the rules on how to qualify your foreign (non-New Hampshire) limited liability company (LLC) to do business in New Hampshire.
For New Hampshire purposes, if your LLC is formed in another state, then it is known as a foreign LLC in New Hampshire. 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 Alabama is a foreign LLC in Mississippi.
According to New Hampshire's LLC Act, you are required to register your foreign company with the state of New Hampshire if you are "doing business" in New Hampshire.What does this mean? Well, like most states, New Hampshire's LLC Act does not specifically define thephrase "doing business" 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 can 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, New Hampshire's LLC Act specifies certain activities that do not constitute doing business in the state. The items listed include:
For the actual legal description of each of these items, check Section 304-C:174 of the New Hampshire Limited Liability Company Act.
If your LLC's only activity in New Hampshire is one or more of the listed items, you should not need to register with the state.
To register your business in New Hampshire, you must file an APPLICATION FOR REGISTRATION AS A FOREIGN LIMITED LIABILITY COMPANY with the New Hampshire Department of State (DOS). You can download a copy of the application form from the DOS 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 New Hampshire asks for that you did not need to provide when you first organized your LLC.More specifically, for a New Hampshire application for registration, you need to provide:
The DOS form also includes a statement that offer or sale of LLC membership interests will comply with specific New Hampshire securities laws. If you are registering a professional LLC, you must use a different application form. The filing fee is $100. The filing fee for a trade name application, if necessary, is $50.
If your LLC does business in New Hampshire without being registered, it cannot bring a lawsuit in the state. It also will be liable for fees and penalties. However, not being registered does not invalidate your LLC's contracts or prevent the LLC from defending a lawsuit in the New Hampshire. Also, a member or manager of the LLC is not liable for the LLC's obligations solely because the company did business in New Hampshire without registration.
If your business is organized as a corporation rather than an LLC, the rules and requirements for foreign qualification in New Hampshire are similar. You will, however, have to use a different application form, Form 40,Application for Certificate of Authority - For Profit Foreign Corporation. See the New Hampshire Department of State website for forms and filing instructions.