How to Form an LLC in New York

What is different about forming an LLC in New York

Forming a New York LLC finishes in two stages, and the second carries a deadline. The Articles of Organization go to the New York Department of State, Division of Corporations, State Records and Uniform Commercial Code, and under LLC Law § 203(d) the company is formed at the time of filing, or at a later date stated in the articles no more than sixty days after filing. LLC Law § 206 then gives it 120 days to publish and to file proof of publication, and a company that misses the window has its authority to do business in the state suspended.

Service of process is the second distinctive feature. Under § 301(a) the secretary of state is the agent of every domestic LLC that has filed articles of organization, and § 203(e)(4) makes that designation a required item of the articles. A separate registered agent is one an LLC may designate under § 302, and the Department's form has no registered agent field.

Two recurring obligations then sit with different agencies: a $9 Biennial Statement to the Department of State, and an annual filing fee to the Department of Taxation and Finance.

Filing the Articles of Organization

The formation document is the Articles of Organization, filed under LLC Law § 203. The Department of State publishes form DOS-1336-f (Rev. 12/22), whose notes say the form need not be used and that a filer may draft their own or use forms sold at legal stationery stores. The same notes add that the filer may not be the limited liability company being formed.

Section 203(e) sets out the contents, among them the name; the county in New York where the office, or the principal office if the company keeps more than one, is to be located; a specific date of dissolution if there is one; the designation of the secretary of state as agent, with the post office address to which process is mailed; a registered agent's name and address if the LLC is to have one; and any other lawful provisions the members include. No member, manager or organizer name is among them. At formation the company must have at least one member, under § 203(c).

The filing fee is $200. The Department accepts filings online, by mail, or in person, and announces that "The Division no longer accepts filings or requests via fax." Filing online, the Department states, brings an email acknowledgement with the filing receipt attached as a PDF within minutes. Paper filings go to the Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231, with payment by money order, MasterCard, Visa or American Express.

Expedited handling is priced in three tiers above the filing fee: $25 for 24 hour service, on requests accepted between 9:00 a.m. and 4:00 p.m. and completed within 24 hours of acceptance, not counting weekends and holidays; $75 for same day service, where the request must reach the Division by 12 noon; and $150 for 2 hour service, a tier that applies to hand delivered or faxed requests and must be received by 2:30 p.m. The expedited fee is charged whether or not the document is accepted for filing.

The publication requirement under LLC Law § 206

Within 120 days after the initial articles of organization take effect, § 206(a) requires that a copy of the articles, or a notice containing the substance of them, be "published once in each week for six successive weeks, in two newspapers of the county in which the office of the limited liability company is located." One is printed weekly and one daily, and both are designated by the county clerk. A copy or notice published in a newspaper the county clerk did not designate "shall not be deemed to be one of the publications required by this subdivision." Where the county sits inside a city with a population of one million or more, the designation is made as though the copy or notice were a notice or advertisement of judicial proceedings.

A notice carries the items at § 206(a)(1) through (7), among them the LLC name, the date the articles of organization were filed, the county where the office is located, the street address of the principal business location if there is one, the designation of the secretary of state as agent with the post office address for process, and the character or purpose of the business.

Proof consists of "the certificate of publication of the limited liability company with the affidavits of publication of such newspapers annexed thereto," filed with the Department of State on form DOS-1708-f (Rev. 03/17) for a $50 fee. A member, manager or authorized person certifies that the published notices contain all the information § 206 requires and that the newspapers satisfy the statute and the county clerk's designation; the LLC name and the filing date "must exactly match the records of the Department of State."

If proof is not filed within the 120 days, § 206(a) provides that "the authority of such limited liability company to carry on, conduct or transact any business in this state shall be suspended, effective as of the expiration of such one hundred twenty day period." The same subdivision limits what the suspension reaches: it does not impair the validity of any contract or act of the LLC, any right or remedy of another party, that party's right to sue, or the company's own right to defend an action in New York, and no member, manager or agent becomes liable for the company's obligations. Filing the certificate with the affidavits later, in substantial compliance with § 206 other than the 120 day period, annuls the suspension. The New York publication requirement page has more.

Naming a New York LLC

Under § 204(a) the name contains, without abbreviation, the words "Limited Liability Company," or the abbreviation "L.L.C." or "LLC." Section 204(b) requires the name to be distinguishable from domestic LLCs, authorized foreign LLCs and the other entity and reserved names on the Department's registers.

Section 204(e) bars eleven words outright: board of trade, chamber of commerce, community renewal, corporation, incorporated, partnership, state police, state trooper, tenant relocation, urban development and urban relocation. The Department's published chart of restricted and prohibited words adds "attorney," under § 204(f) and Judiciary Law § 485, and "cooperative" and "cooperation" under Cooperative Corporations Law § 3(j). Other words are open only with a named consent: bank, insurance, trust and investment among those held by the superintendent of financial services under § 204(f), the education words such as school, college and museum by the commissioner of education under § 204(i), and "exchange" by the attorney general under § 204(h).

Availability is checked in the Department's Corporation and Business Entity Database, and a written name availability inquiry costs $5 per name. A name is held with the Application for Reservation of Name, DOS-1233-f-a, for $20; § 205 runs the reservation for sixty days, and the secretary may grant no more than two extensions of not more than sixty days each. An LLC operating under another name files a certificate under General Business Law § 130 with the Department of State, for $25.

Service of process and registered agent

The secretary of state accepts process for every domestic LLC that has filed articles of organization, mailing it to the post office address given in the articles. Section 302 adds that an LLC may designate a registered agent, who may be a natural person resident in New York or with a business address in the state, a domestic or authorized foreign LLC, or a domestic or authorized foreign corporation; the statute states no age requirement. A certificate of change costs $30 under § 211-A(a) or $5 under § 211-A(b), and a registered agent's resignation is $20. See the New York registered agent guide.

The Biennial Statement

LLC Law § 301(e) requires a Biennial Statement every two years, setting out the address to which the secretary of state mails process accepted on the LLC's behalf. The filing period is the calendar month in which the Articles of Organization were filed, and the fee is $9. Most LLCs file through the Department's e-Statement Filing Service, and expedited handling is not available for Biennial Statements. The Department's LLC fee schedule carries no late fee; its stated consequence for a missed statement is that its records and any Certificate of Status show the LLC as past due, which "may prevent the corporation or LLC from completing certain business transactions."

State taxes and the annual filing fee

Tax Law § 658(c)(3) imposes an annual filing fee on every subchapter K limited liability company, every LLC that is a disregarded entity for federal income tax purposes, and every partnership with income derived from New York sources. The amount steps up with New York source gross income: $25 on income not more than $100,000, $50 above that through $250,000, $175 through $500,000, $500 through $1,000,000, $1,500 through $5,000,000, $3,000 through $25,000,000, and $4,500 over $25,000,000. An LLC that is a disregarded entity for federal purposes pays $25. The fee is due on or before the fifteenth day of the third month following the close of each taxable year, and if it is not paid on time it is paid on notice and demand and "shall be assessed, collected and paid in the same manner as taxes."

New York income tax follows the federal classification. The Department of Taxation and Finance treats a single member LLC that is a disregarded entity as a sole proprietorship, reporting on the member's New York State personal income tax return, and an LLC treated as a partnership may have to file a New York State partnership return. An LLC treated as a partnership, or as a New York S corporation, may elect the optional pass-through entity tax, opting in on or after January 1 and no later than March 15. An LLC making sales subject to New York sales tax registers for a Certificate of Authority at least 20 days before beginning business. See the New York LLC tax guide.

Operating agreement

LLC Law § 417(a) states that the members of a limited liability company shall adopt a written operating agreement covering the business of the company, the conduct of its affairs, and the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents. Under § 417(c) the agreement may be entered into before, at the time of, or within ninety days after the filing of the articles of organization. The Department of State describes it as an internal document that is not filed with the Department. The operating agreement guide covers drafting one.

EIN

An employer identification number comes from the IRS, not from any New York agency. The EIN guide covers the application.

Other filings with the Department of State

A certificate of amendment costs $60. Under § 705, articles of dissolution are filed within ninety days following the dissolution and the commencement of winding up, for $60; see the New York dissolution guide. A foreign LLC files an Application for Authority under § 802, for $250, as the foreign LLC guide describes.

A professional service LLC formed under Article 12 attaches to its articles a certificate from the licensing authority certifying that each proposed member and manager is authorized to practice. The Department's Division of Licensing Services issues the New York licenses for notary public, real estate salesperson and broker, security guard, private investigator, cosmetology and barber, among others.

Frequently asked questions

What is the New York LLC publication requirement?

Within 120 days after the Articles of Organization take effect, LLC Law 206 requires a copy of the articles, or a notice containing their substance, to be published once in each week for six successive weeks in two newspapers of the county where the LLC's office is located, one printed weekly and one printed daily, both designated by the county clerk. Proof is the Certificate of Publication, form DOS-1708-f, filed with the Department of State with the newspapers' affidavits annexed and a $50 fee.

What happens if a New York LLC does not file proof of publication?

LLC Law 206(a) suspends the LLC's authority to carry on, conduct or transact any business in New York, effective as of the expiration of the 120 day period. The suspension does not limit the validity of any contract or act of the LLC, any right or remedy of another party, or the LLC's right to defend an action in the state, and it does not make a member, manager or agent liable for the company's obligations. Filing the certificate later annuls the suspension.

How much does it cost to file New York Articles of Organization?

The filing fee is $200. Expedited handling costs an added $25 for 24 hour service, $75 for same day service where the request reaches the Division by 12 noon, or $150 for 2 hour service, a tier that applies to hand delivered or faxed requests received by 2:30 p.m. Expedited fees are non-refundable and are charged whether or not the document is accepted for filing.

Does a New York LLC need a registered agent?

Under LLC Law 301(a) the secretary of state is the agent of every domestic LLC that has filed articles of organization, and the articles must designate the secretary of state along with a post office address for mailing process. LLC Law 302 says an LLC may also designate a registered agent, which can be a New York resident or a person with a business address in the state, a domestic or authorized foreign LLC, or a domestic or authorized foreign corporation.

How often does a New York LLC file with the Department of State?

Every two years. LLC Law 301(e) requires a Biennial Statement setting out the address to which the secretary of state mails process accepted for the LLC. The filing period is the calendar month in which the Articles of Organization were filed, the fee is $9, and most LLCs file online through the Department's e-Statement Filing Service. Expedited handling is not available for Biennial Statements.

Does New York require an operating agreement?

LLC Law 417(a) states that the members of a limited liability company shall adopt a written operating agreement covering the business of the company, the conduct of its affairs, and the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents. Section 417(c) says the agreement may be entered into before, at the time of, or within ninety days after the filing of the articles of organization. It is kept by the company and is not filed with the Department of State.