How to form an LLC in New York
Updated: Aug 27, 2020
First, you need to Choose a Name for Your LLC: Check name availability at the New York Department of State Division of Corporations business name database, https://www.dos.ny.gov/corps/bus_entity_search.html (even if the name you want is not exactly the same as anyone existed, your application may still be rejected due to “too similar” and hence “conflict with” an existing company); if needed, you can even reserve a name for 60 days, https://www.dos.ny.gov/corps/dom_llcfile.html
Appoint an Address to Which Legal Papers Can Be Forwarded: In New York, the New York Department of State is by-default every LLC's "agent for service of process." The Department will accept legal papers on the LLC’s behalf if it is sued, and then forward the legal papers to your LLC. You must give the Department of State a name and address to which process (the summons and complaint for a lawsuit are called "process") and other legal papers can be forwarded. You can also appoint an individual New York resident or commercial registered agent as an additional agent to receive service of process.
Draft and File Articles of Organization: File online: https://appext20.dos.ny.gov/ecorp_public/f?p=201:17;
Prepare and adopt an LLC Operating Agreement: New York's LLC law requires LLC members to adopt a written operating agreement within 90 days after filing the Articles of Organization.
Publication Requirements: Within 120 days after its articles of organization become effective, the LLC must publish in two newspapers (one daily and one weekly) a copy of the articles or a notice related to the formation of the LLC once a week for six consecutive weeks. The newspapers must be designated by the county clerk of the county in which the office of the LLC is located, as stated in the articles of organization. After publication, the printer or publisher of each newspaper will provide you with an affidavit of publication. A Certificate of Publication, with the affidavits of publication of the newspapers attached, must be submitted to the New York Department of State, Division of Corporations.
Obtain EIN: If your LLC has more than one member, it must obtain its own IRS Employer Identification Number (EIN), even if it has no employees. If you form a one-member LLC, you must obtain an EIN for it only if it will have employees or you elect to have it taxed as a corporation instead of a sole proprietorship (disregarded entity). Apply online: https://www.irs.gov/businesses/small-businesses-self-employed/employer-id-numbers
PLLC (besides the basic steps of forming a normal LLC): also need to provide the Dept. of Education with the Professional Service Articles of Organization for the proposed professional entity, comply with their business naming restrictions, pay fees associated with their authorization process and credential checking process, and complete a certificate of authorization form and/or other preliminary documents depending on the profession. PLLC articles of organization, https://www.dos.ny.gov/forms/corporations/1374-f-l.pdf; Once their authorization is obtained, file it with the New York Dept. of State along with your organizational documents. https://www.dos.ny.gov/corps/llccorp.html#artorgps; Then, these documents must be certified and filed back with the Dept. of Education. Attorneys who seek to form a professional entity will need a certificate of good standing from their governing bar association, but do not need to receive authorization from the New York State Education Department.
Foreign LLCs must register with the New York Department of State Division of Corporation: Foreign LLCs must appoint a registered agent for service of process physically located in New York. To register, file an Application for Authority with the Division of Corporations. File online: https://www.tax.ny.gov/pit/ads/efile_addit204ll.htm
** This blog provides general information for educational purposes only. It is not intended to constitute specific legal advice and does not create an attorney-client relationship.