Taking Care of the LLC Publication Requirement

Setting up a limited liability company in New York requires you to jump through one additional hoop: Publication of a notice of the LLC formation in two newspapers (See Section 206 of the Limited Liability Company Law for exact legal requirements).  Unfortunately, this adds about $1000 to your formation costs.   Forming a foreign LLC (Nevada, Delaware or any other state) won't save you the expense.  As soon as your LLC does business in New York, your foreign LLC has to publish too (See Section 802 (b) of the Limited Liability Company Law).

Anyway, here is what you need to do for a newly formed New York Limited Liability Company:   

1.  Locate your LLC's "filing receipt"

If you don't have your filing receipt, ask the person or company that formed your LLC.  The Department of State will not issue a copy of your filing receipt.

2.  Call the county clerk of the county where your LLC has its principal office

Where is your principal office?  Look in your "Articles of Organization" (Again, you or the formation company/person should have that).  The articles of organization should have language along the lines of "the county within this state in which the office of the limited liability company is to be located is: ______." 

The county clerk will give you the names of two newspapers in which to publish.  If the county is New York (i.e. your principal office is in Manhattan), the county clerk will ask you to fax them your filing receipt before giving out the names of the newspapers. 

3.  Contact the newspapers

The newspapers will usually send you a sample notice, so that you know what to write for publication.  But also check the law to make sure that they got it right.  If one of the publications is the New York Law Journal, you can take care of that notice online. 

4. File a Certificate of Publication

After the publication notices have run for the required time, the newspapers will send you affidavits of publication, i.e. official looking pieces of paper stating that they published your notices.  You have  to send the affidavits of publication to the Department of State along with a "Certificate of Publication".  The Department of State has more information on this, including a form Certificate of Publication for download.

5.  When do you have to accomplish the above steps?

Within 120 days after the formation of your LLC.

6.  What happens if you don't publish?

Your LLC looses the authority to do business in New York State.

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**This post is for informational purposes only and does not constitute legal advice**

Comments

[Philip James]

If i own an LLC just to protect the company name and i don't file the newspaper ad's, is the only issue that i lose the ability to do business in NY?

If the company serves no other purpose can i let it lapse, and then if desired later on, dissolve and re-incorprate with the same name?

[Todd]

What if a company were to fulfill the NYS publishing requirement under one name (e.g. Acme, LLC) and then later adopt a "DBA" name for the business and use the DBA name (e.g. ABC Capital) for all state correspondence and other business activities? Would a separate and additional publication requirement have to be filed under the DBA name?

[Jeff]

This is very helpful information for the DIY business owners out there. Thank you for your advice!

[Kevin D. McInroy, Esq.]

Very helpful indeed. Thank you very much.

[BrodskyLawFirm]

Or, for about the same price, you can have a lawyer take care of this major headache for you.

[Joe C]

I agree with the others. Please keep the articles coming. These are a VERY big help for me. You break it down in an orderly fashion so you always know what steps to take next. Thanks for all you do. Joe C

[Eric]

Thanks, this is the only article on this subject I could find that's not trying to sell me an LLC publishing service.

!

-E

[jay blue]

what happens if you publish after the 120 days?
what happens if you change your the name of the LLC (everything staying the same): do you need to re-publish?
Are foreign LLC subject to the 120 day rule from the date of organisation or the day they start operating in NY?
Thanks much for helping small business owners who are badly in need of assistance!
Jay

[Interview]

This is helpful information - thank you.

It is so hard to do business in New York with their extra hoops to jump through. This publication thing is just one of them. Not to mention the taxes are ridiculous here.

[NS]

There is ambiguity regarding "principal office" and the need to identify its location. Notice that section 203 (Formation) only requires the Articles to state the "county" in which LLC will operate, and only include the "location" of the principal office if there is more than one office for the LLC. Hence, the publication requirement, if consistent with the filing of the articles, may only require identifying the county unless you have more than one office (and the words "principal" office are meaningful: if you have only one office, it may be argued that subsection 3a of Section 206 is inapposite).
In any event, the law is clear that you DO NOT have to "start over" any publication if after the first week's publication, the facts contained in the original publication have changed. Hence, if you start with one office, and then open another office (in a more expensive county viz. publication costs), you do NOT have to restart the publication. (Although you may want to file an amendment to the Articles of Organization. cf. s.211)