Business and public filings division
Download
1 / 70

Business and Public Filings Division - PowerPoint PPT Presentation


  • 133 Views
  • Updated On :

Formation Filings. Business and Public Filings Division. Certificates of Formation. Domestic filing entities are formed by filing a certificate of formation with the filing officer. Any certificate of formation filed with an effective date on or after January 1, 2006: creates a BOC entity

Related searches for Business and Public Filings Division

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Business and Public Filings Division' - fonda


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
Business and public filings division l.jpg

Formation Filings

Business and Public Filings Division


Business and public filings division2 l.jpg

Certificates of Formation

  • Domestic filing entities are formed by filing a certificate of formation with the filing officer.

  • Any certificate of formation filed with an effective date on or after January 1, 2006:

    • creates a BOC entity

    • must comply with BOC filing requirements

    • is subject to the new BOC fee schedule

Business and Public Filings Division


Business and public filings division3 l.jpg

  • Certificates of formation are governed by § 3.001 et seq.

  • Every certificate of formation must contain:

    • The name of the filing entity to be formed

    • The type of filing entity to be formed (e.g., for-profit corp)

    • Purpose (except for LPs)

    • Duration, if not perpetual (except for LPs)

    • Registered office street address; registered agent’s name

    • Name and address of organizers (e.g., general partner, or trust manager)

Business and Public Filings Division


Business and public filings division4 l.jpg

  • Supplemental requirements for certificates of formations are set out for:

    • For-profit corporations § 3.007

    • Close corporations § 3.008

    • Nonprofit corporations § 3.009

    • Limited Liability Companies § 3.010

    • Limited Partnerships § 3.011

    • Real Estate Investment Trusts § 3.012

    • Cooperative Associations § 3.013

    • Professional Entities § 3.014

    • Professional Associations § 3.015

Business and Public Filings Division


Business and public filings division5 l.jpg

Names are set out for:

  • Name availability standards and rules remain the same. § 5.001 et seq.

  • LP name can include name of limited partner.

  • “Limited” and “Ltd.” are acceptable organizational indicators for for-profit, nonprofit, and professional corporations. § 5.054(1)

Business and Public Filings Division


Business and public filings division6 l.jpg

Business and Public Filings Division are set out for:

Names Cont’d

  • LPs that are registered as LLPs can use “limited liability limited partnership” or “LLLP” in their name. §§ 5.055(b) & 5.063.

  • For LP named ABC, SOS accepts the following, on the theory that the LP might register as LLP:

    • ABC Limited Partnership, ABC Ltd., or ABC LP

    • ABC Limited Liability Partnership or ABC LLP

    • ABC Limited Liability Limited Partnership or ABC LLLP

    • ABC Limited Partnership Limited Liability Partnership, ABC Ltd, Limited Liability Partnership, or other abbreviations.


Business and public filings division7 l.jpg

Duration are set out for:

  • A domestic entity’s duration is assumed to be perpetual unless stated otherwise in its governing documents. § 3.003

  • If a domestic entity’s duration is not perpetual, its certificate of formation must state the period of duration. (Except for LPs) § 3.005(4)

  • SOS forms for certificates of formation do not include a duration clause. Limited durations can be set out in the “Supplemental Text” area of the forms.

Business and Public Filings Division


Business and public filings division8 l.jpg

Purpose are set out for:

  • LPs still do not have to state a purpose. § 3.005(3)

  • Joint practice between optometrists, therapeutic optometrists, medical doctors, and doctors of osteopathy is specifically allowed. § 301.012(c)

  • Professional entities can provide more than one professional service only if specifically authorized by law governing professions.

Business and Public Filings Division


Business and public filings division9 l.jpg

Purpose Cont’d are set out for:

  • LLCs can have a specific nonprofit purpose. §§1.002(60), 2.002 et seq.

    • An LLC with a nonprofit purpose is distinct from a nonprofit corporation or other nonprofit association.

    • SOS will not distinguish between LLCs created for a for-profit purpose and LLCs created for a nonprofit purpose. (LLC fees apply to all LLCs regardless of purpose.)

Business and Public Filings Division


Business and public filings division10 l.jpg

Purpose Cont’d are set out for:

  • Nonprofit corporations can state a general nonprofit purpose. Specifying the nonprofit purpose is no longer required for formation. § 22.051

  • BOC provisions specifically applicable to nonprofit corporations do not apply to other nonprofit entities.

    • Power to act as trustee in § 2.106

    • Default tax provisions of § 2.107

Business and Public Filings Division


Business and public filings division11 l.jpg

Registered Agent Requirements are set out for:

  • Registered Agent may be:

    • an individual resident of Texas, or

    • a domestic or foreign entity that is registered to do business in Texas.

  • Registered agent’s business office address must be the same address as the registered office.

Business and Public Filings Division


Business and public filings division12 l.jpg

Registered Office Requirements are set out for:

  • Registered Office:

    • Must be located at a street address where process may be personally served on the registered agent;

    • Is not required to be the business office address of the represented entity; and

    • May not be solely a mailbox service or telephone answering service.

Business and Public Filings Division


Professional entities under the boc l.jpg

Professional Entities Under the BOC are set out for:

Business and Public Filings Division


Professional entities under the boc14 l.jpg

Professional Entities Under the BOC are set out for:

Each professional entity is governed by title 1, title 7 and the title(s) applicable to the entity type.

Business and Public Filings Division


Professional entities under the boc15 l.jpg

Professional Entities Under the BOC are set out for:

Professional Corporations, Title 1, Title 2, and Title 7.

Professional Associations, Title 1, Title 2, and Title 7.

Professional LLCs, Title 1, Title 3, and Title 7.

Title 7 provisions will prevail over a conflicting provision of Titles 1, 2, or 3.

Business and Public Filings Division


Professional entities under the boc16 l.jpg

Professional Entities Under the BOC are set out for:

Title 7 (Chapters 301-304) of the BOC contains specific provisions relating to professional entities.

Definitions that specifically apply to professional entities are found in Title 7 rather than Title 1 of the BOC.

“Professional Entity” means a professional association, professional corporation, and a professional limited liability company. This does not include partnerships.

Business and Public Filings Division


Professional entities definitions l.jpg

Professional Entities--Definitions are set out for:

“Professional Corporation” means a corporation formed for the purpose of providing a professional service that by law a for-profit corporation is prohibited from rendering.

“Professional LLC” means a LLC formed for the purpose of providing a professional service.

Business and Public Filings Division


Professional entities definitions18 l.jpg

Professional Entities--Definitions are set out for:

“Professional Service” means any type of service that requires, as a condition precedent to the rendering of the service, the obtaining of a license in Texas.

Professional Services

Services provided by architects, lawyers, dentists, physicians, veterinarians, CPAs, optometrists, nurses, audiologists, etc.

Business and Public Filings Division


Professional associations l.jpg

Professional Associations are set out for:

Prior to 1999, the only professionals permitted to form PAs were doctors of medicine, osteopathy, and podiatry.

Due to the progressive legislative expansion of permitted professionals authorized to form PAs, many of the conversions seen in recent years have been conversions from a professional corporation to a professional association.

Business and Public Filings Division


Professional associations20 l.jpg

Professional Associations are set out for:

As of June 20, 2003, the following professionals were authorized to form professional associations: doctors of medicine; doctors of osteopathy; podiatrists; dentists; mental health professionals (such as psychologists and family therapists); optometrists and therapeutic optometrists; chiropractors, and veterinarians.

Business and Public Filings Division


Professional associations21 l.jpg

Professional Associations are set out for:

Existing law (article 1528f, TPAA) did not specifically define a “professional association.” Section 2 of the TPAA merely states that “any one or more persons duly licensed to practice a profession, including podiatry... ...may form a professional association.”

Business and Public Filings Division


Professional associations22 l.jpg

Professional Associations are set out for:

Title 7 of the BOC contains a specific definition of a professional association that defines a domestic “professional association” as:

An entity formed “for the purpose of providing the professional service rendered by a doctor of medicine, doctor of osteopathy, doctor of podiatry, dentist, chiropractor, optometrist, therapeutic optometrist, veterinarian, or licensed mental health professional.”

Business and Public Filings Division


Professional associations23 l.jpg

Professional Associations are set out for:

Formation Issues--Changes

1. Filing fee increased to reflect the fact that these entities do not pay state franchise tax. $750.

2. There are still limitations on the perpetual duration of a professional association; however, these limitations are set forth as a matter of law and are not required to be stated in the certificate of formation.

Business and Public Filings Division


Professional associations24 l.jpg

Professional Associations are set out for:

Formation Issues--Changes

3. Certificate of formation of a professional association is not required to provide an association address, but we will continue to accept a certificate of formation that provides this information.

4. Organizational designators are “professional association,” “associated,” “associates” or “association.”

Business and Public Filings Division


Professional associations25 l.jpg

Professional Associations are set out for:

Formation Issues--Changes

5. Certificate of formation of a professional association is not required to provide information relating to the initial management structure of the professional association.

However, a certificate of formation still requires name, address, and execution of each original member.

Business and Public Filings Division


Professional associations26 l.jpg

Professional Associations are set out for:

Formation Issues--Changes

The SOS Form (204) still includes an article to provide initial management structure and information for purposes of generating the initial annual statement sent to the professional association.

Business and Public Filings Division


Limited legal purposes l.jpg

Limited Legal Purposes are set out for:

  • Existing law permits a professional entity to render only one type of professional service (and any ancillary services).

  • This is still the general rule under the BOC.

Business and Public Filings Division


Joint practice provisions l.jpg

Joint Practice Provisions are set out for:

  • Under the TPAA and the TLLCA, doctors of medicine, osteopathy, and podiatry can form a PA or a PLLC and have a joint practice. This is also permitted by the BOC.

  • Under the TPCA and TLLCA, persons in a related mental health field (e.g., psychologists and licensed professional counselors) can have a joint practice. This is also permitted by the BOC.

Business and Public Filings Division


Joint practice provisions29 l.jpg

Joint Practice Provisions are set out for:

  • Under the Occupations Code, a physician, an optometrist, and a therapeutic optometrist may have a joint practice. However, neither the TPAA nor the TLLCA authorized this joint practice.

  • The BOC implements the provisions of the Occupations Code and specifically authorizes this as a permissible joint practice.

Business and Public Filings Division


Joint practice provisions30 l.jpg

Joint Practice Provisions are set out for:

  • Section 301.012 of the BOC lists various professionals that are authorized to have a joint practice as a professional entity.

  • This is not intended to be an exclusive list.

Business and Public Filings Division


Joint practice provisions31 l.jpg

Joint Practice Provisions are set out for:

  • Section 2.004 of the BOC states that a professional entity may engage in only type of professional service unless the entity is expressly authorized to provide more than one type of professional service under the state law regulating the professional services.

Business and Public Filings Division


Joint practice provisions32 l.jpg

Joint Practice Provisions are set out for:

  • SOS will not be in the business of researching what is specifically permissible under the state law regulating the various professions.

  • If a formation document contains a joint practice purpose not specifically provided for in the BOC, the legal practitioner should be prepared to provide reference to the specific law permitting the joint practice.

Business and Public Filings Division


Limitations restrictions l.jpg

Limitations/Restrictions are set out for:

  • Under existing law, ownership in a professional corporation (other than a professional legal corporation), is limited to individualswho are licensed to render the same professional purpose as the PC.

  • Ownership of a professional corporation formed under the BOC may be held by a “professional organization.”

Business and Public Filings Division


Limitations restrictions34 l.jpg

Limitations/Restrictions are set out for:

  • A “professional organization” is a foreign or domestic legal entity (whether for-profit or nonprofit) that renders the same professional service as the professional corporation or professional limited liability company only through owners, members, managerial officials, employees, or agents, each of whom is a professional individual or professional organization.

Business and Public Filings Division


Other limitations restrictions l.jpg

Other Limitations/Restrictions are set out for:

  • A professional corporation’s officers and directors must still be licensed individuals.

  • Ownership and management in a professional association is still limited to individuals who are licensed to perform the professional service for which the professional association is formed.

Business and Public Filings Division


Existing law foreign professional entities l.jpg

Existing Law are set out for:Foreign Professional Entities

  • Only a foreign professional legal corporation could obtain a certificate of authority to transact business in Texas. Tex. Att’y Gen. Op. JM-7 (1983)

  • Those foreign professional entities that were not professional legal corporations that desired to transact business in Texas qualified as foreign professional limited liability companies.

Business and Public Filings Division


Foreign professional entities l.jpg

Foreign Professional Entities are set out for:

  • The BOC requires a foreign professional entity to register under Chapter 9 of the BOC.

  • Under the BOC, a foreign professional corporation providing accounting services qualifies as a foreign professional corporation and not as a foreign LLC.

Business and Public Filings Division


Foreign professional entities38 l.jpg

Foreign Professional Entities are set out for:

  • The SOS has promulgated application for registration forms for use by foreign professional entities.

  • An application for registration must state that the jurisdiction of formation of the foreign entity permits reciprocal admission of a professional entity formed under the BOC.

  • Filing fees similar to foreign for-profit corporation or foreign LLC.

Business and Public Filings Division


Foreign professional associations l.jpg

Foreign Professional Associations are set out for:

  • If the professional entity is characterized in its home jurisdiction as a professional association, it should identify itself as a foreign professional association in its application for registration.

  • A foreign professional association:

    • Will be required to file an annual statement in the same manner as a domestic professional association.

    • May be subject to franchise tax.

Business and Public Filings Division


Foreign professional associations40 l.jpg

Foreign Professional Associations are set out for:

  • The SOS will not determine whether the foreign professional association is classified as a corporation in its home jurisdiction.

  • The determination of whether the foreign professional association is to be taxed as a corporation for franchise tax purposes will be left to the Comptroller of Public Accounts.

Business and Public Filings Division


Foreign professional pc filed as llc l.jpg

Foreign Professional PC Filed as “LLC” are set out for:

  • A foreign professional corporation that previously qualified as a foreign professional limited liability company may:

    • File an early election to adopt the BOC ($15), and

    • File an application for amended registration to identify itself as it is characterized in its home jurisdiction ($150).

Business and Public Filings Division


Slide42 l.jpg

Foreign Entities are set out for:

Doing Business in Texas After January 1, 2006

Business and Public Filings Division


Slide43 l.jpg

Foreign Entities are set out for:

Title 1, Chapter 9 of the BOC

New terminology, such as “registration” and “foreign filing entity.”

Simplifies the test of the type of entity required to register and makes it mandatory.

Business and Public Filings Division


Slide44 l.jpg

Foreign Entities Required to Register are set out for:

  • A foreign entity must register to transact business in Texas if:

  • The entity affords limited liability under the laws of its jurisdiction of formation for any member or owner, unless the foreign entity is authorized to transact business under other state law.

Business and Public Filings Division


Slide45 l.jpg

What is “Transacting Business” ? are set out for:

  • Terminology is not defined. We can’t say.

  • List of “not-transacting business” activities same as those provided under prior law.

  • We do not issue formal legal opinions.

Business and Public Filings Division


Slide46 l.jpg

What is Considered Foreign in Texas? are set out for:

A. Anything outside of Austin.

B. Anything outside of Texas.

C. Anything outside of the United States.

D. Both B & C.

Business and Public Filings Division


Slide47 l.jpg

What is Considered Transacting Business are set out for:

in Texas?

  • Employee residing in Texas.

  • Pursuing its purpose in Texas.

  • Owning & receiving income from property in Texas.

Business and Public Filings Division


Slide48 l.jpg

How Does the SOS Know? are set out for:

  • Public Information Reports

  • Competitors or unhappy customers

  • Questions from the business

  • Other state agencies require registration

Business and Public Filings Division


Slide49 l.jpg

Our Response are set out for:

  • Over 1,000 letters sent out 2005

  • Over 200 entities filed in Texas

  • $140,785 in filing fees collected for the general revenue

  • Current database of letter recipients is 2,086 businesses

Business and Public Filings Division


Slide50 l.jpg

Foreign Entities Now Required to File are set out for:

Foreign cooperatives

Foreign business trusts

Foreign real estate investment trusts

Foreign public and private limited company

Foreign professional corporations & associations

Business and Public Filings Division


Slide51 l.jpg

Foreign Entities Now Required to File are set out for:

  • Currently

  • Foreign organized entities of a type not authorized to qualify under any other statute in Texas qualified as foreign LLCs.

  • Under the BOC

  • Foreign entities of a type that have no counterpart in Texas (e.g. business trusts) register as the entity type they are in their home state.

Business and Public Filings Division


Slide52 l.jpg

Foreign “LLCs” That Are Not “LLCs” are set out for:

  • A foreign entity that registered as a foreign LLC, but that is not characterized as an LLC in its home jurisdiction does not need to re-qualify or re-register.

  • These foreign entities need only:

    • File an early election to adopt the BOC, and

    • Amend its COA to correctly identify its organizational form and to be BOC compliant.

Business and Public Filings Division


Slide53 l.jpg

Foreign Entities Not Required to Register are set out for:

Foreign general partnerships.

Unincorporated nonprofit associations.

Unless registration with SOS required:

To comply with applicable requirements under other state law.

Business and Public Filings Division


Slide54 l.jpg

Foreign Corporation Changes are set out for:

Business Corporation Certificate of Authority

App. for Registration of a Foreign For-Profit Corporation

Must state date entity began transacting business in Texas

Penalties administered by Attorney General

If entity transacts business without registration for more than 90 days, late filing fee equals $750 per year.

No preclearance fee

$50 preclearance fee

No provisions for abandonment

Can be abandoned prior to effectiveness.


Slide55 l.jpg

Changes cont’d are set out for:

Officers/Directors

Each person serving as part of the “governing authority” of the foreign corporation. Generally, the board of directors. A minimum of one governing person is required

Form provided an option for a delayed effective date.

Form will provide Option C to delay effectiveness until the occurrence of a future event or fact.


Slide56 l.jpg

Changes to Foreign Limited Liability Companies are set out for:

App’n for COA pursuant to Art. 7.01 of TLLCA

App’n for Registration of Foreign LLC

Filing fee: $500

Filing fee: $750 (to match corporation fees)

No fee for preclearance

$50 fee for preclearance

Names & addresses of Managers or Members.

Name and address of each person serving as part of the governing authority. A minimum of one governing person is required.


Slide57 l.jpg

Foreign LLC Changes are set out for:cont’d

Must state date entity began transacting business in Texas

No late filing fees

If entity transacts business without registration for over 90 days, late filing fee of $750 per year.

Form provided an option for a delayed effective date.

BOC provides Option C to delay effectiveness until the occurrence of a future event or fact.


Slide58 l.jpg

Foreign LLC Changes, cont’d are set out for:

Foreign entities of a type not authorized to qualify in Texas qualified as foreign LLCs.

  • Foreign entities of a type that have no counterpart in Texas (e.g. business trusts) or that could not qualify under existing law now register as the entity type they are in their home state.

  • An existing entity that qualified as a Foreign LLC that is not an LLC in home state can adopt BOC and amend COA to correctly identify its entity type.


Slide59 l.jpg

Foreign PLLC Changes are set out for:

App’n for COA pursuant to Art. 11.07 of TLLCA

App’n for Registration of Foreign PLLC

Filing fee: $500

Filing fee: $750 (to match corporation fees)

No fee for preclearance

$50 fee for preclearance

Must state date entity began transacting business in Texas

No late filing fees

If entity transacts business without registration for over 90 days, late filing fee of $750 per year.


Slide60 l.jpg

Foreign Limited Partnership Changes are set out for:

App’n for Registration pursuant to Art. 9.02 of the TRLPA.

App’n for Registration of a Foreign LP

LP name could not include name of one of its limited partners.

Name of the LP can include name of one of its limited partners.

Non-U.S. LPs can register

Form provided an option for a delayed effective date.

Form also provides Option C to delay effectiveness until the occurrence of a future event or fact.


Slide61 l.jpg

Foreign Limited Partnerships, cont’d are set out for:

The name, mailing address AND street address of the business or residence of each general partner.

Name and the address (only one address required) of each person serving as part of the governing authority. A minimum of one governing person is required.If the governing person is an organization, provide the legal name of the organization.


Slide62 l.jpg

Foreign Limited Partnerships are set out for:

  • Provisions of the TRLPA do not authorize the cancellation of registration of a foreign limited partnership that fails to maintain a registered agent/office in Texas.

  • Change

  • BOC authorizes the revocation of registration of a domestic or foreign LP that fails to maintain a registered agent and/or registered office in Texas.

Business and Public Filings Division


Slide63 l.jpg

Foreign Entities Filing Fees are set out for:

For all foreign entities (other than nonprofit corporations and cooperatives):

$750--application for registration

$150--amended registration

$ 15--certificate of withdrawal

$ 15--certificate evidencing entity no longer exists in home state (notice of termination).

$ 75--reinstatement

Business and Public Filings Division


Slide64 l.jpg

Changes to the Name or Purpose are set out for:

  • Requires an amendment to to be filed within 90 days.

  • Prior law did not specify a time frame for filing.

Business and Public Filings Division


Slide65 l.jpg

Foreign Entities are set out for:

  • BOC permits a foreign entity to amend its registration:

    To disclose a change that results from a conversion from one type of filing entity to another type of filing entity (NV LLC to NV LP).

    To disclose a merger of the entity into another foreign filing entity in order to have the foreign entity succeed to the registration held by the merging entity.


Slide66 l.jpg

BOC--Foreign Entities are set out for:

Amend

Registration

80009817

Registered Nevada,

LLC

80009817

Merger

Delaware Survivor, LP

Delaware Survivor, LP


Slide67 l.jpg

Grace Period of 30 Days to Register are set out for:

  • Entities not required to file before BOC

  • Entities that should have filed, but didn’t

  • REITs and Foreign Business Trusts

Business and Public Filings Division


Slide68 l.jpg

Foreign Entities--Failure to Register are set out for:

  • Attorney General may enjoin entity from

  • transacting business.

  • Entity cannot maintain an action or proceeding

  • in court until registered.

  • Civil penalty in an amount equal to all fees

  • and taxes that would have been imposed.

Business and Public Filings Division


Slide69 l.jpg

Foreign Entities--Failure to Register are set out for:

  • Late filing penalty equal to registration fee for

  • each year of delinquency.

  • Application for registration must be filed within

  • 90 days of the beginning date of doing business

  • in the state.

  • Late filing penalty currently exists for foreign limited partnerships.

  • Business and Public Filings Division


    Slide70 l.jpg

    Transacting Business in Texas? are set out for:

    Angleton, TX business incorporated in Delaware in 1995.

    The business files a certificate of authority in Dec. of 2005.

    Fees paid to qualify in 2005 $ 750.00

    Fees if qualified in July 2006 $9,000.00

    Memories of being a Delaware corporation… priceless.

    Business and Public Filings Division


    ad