If you own a business that was created in a state other than New York, you will need to qualify or register that business in New York if you want to do business there. Here is an overview of the rules on how to qualify your foreign (non-New York) limited liability company (LLC) to do business in New York.
For New York purposes, if your LLC is formed in another state, then it is known as a foreign LLC in New York. 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 York's LLC Act, you are required to register your foreign company with the state of New York if you are "transacting business" or "doing business" in New York. (The Act uses both phrases.) What does this mean? Well, like most states, New York's LLC Act does not specifically define either "transacting business" or "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 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 York'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 803 of New York's LLC Act. You can access an index to all of New York's state laws through this website.
If your LLC's only activity in New York is one or more of the listed items, you should not need to register with the state.
To register your business in New York, you must file an Application for Authority with the New York Secretary of State (SOS). You can download a copy of the application 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 New York asks for that you did not need to provide when you first organized your LLC. More specifically, for a New York application for registration, you need to provide:
You also must attach one of the following:
The blank application form available for download includes an additional sheet where you can provide information about who is filing the application. The application filing fee is $250.
Apart from filing the application with the SOS, you also must publish the information contained in the application once in each week for six successive weeks, in two newspapers of the New York county where the office of the foreign limited liability company is located. One newspaper must be printed weekly and one newspaper must be printed daily, and the newspapers will be designated by the county clerk. For more detailed information about this requirement, check Section 802(b) of the New York LLC Act or this SOS FAQ page .
If your LLC does business in New York without a certificate of authority, it cannot bring a lawsuit in any New York court. However, not having a certificate of authority does not invalidate your LLC's contracts or prevent your LLC from defending a lawsuit in New York. Also, a member or manager of the LLC is not liable for the LLC's contractual obligations or other liabilities solely because the company is doing or has done business in New York 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 New York are similar. You will, however, have to use a different application form, Form DOS-1335-f-a, Application for Authority. See the New York Secretary of State website for forms and filing instructions.