Form a New York LLC

At LawInc we can help you form your New York LLC, the right way. We file the New York LLC Articles of Organization with the New York Department of State and prepare the operating agreement. We can also obtain the New York LLC’s EIN, in as quickly as 24 hours. Furthermore, we can assist with the NY LLC publication requirement.

New York LLC Name

The first step in forming a New York Limited Liability Company (LLC) is selecting the business name. New York LLC names:

• Must include the words “Limited Liability Company” or the abbreviation “LLC” or “L.L.C.”
• Must be distinguishable from the names of other LLC’s, corporations or limited partnerships on file with the New York Department of State. Section 204 of the Limited Liability Company Law contains a list of words and phrases that are prohibited in the name of an LLC. In addition, certain words and phrases require the consent or approval from other state agencies prior to filing the Articles of Organization with the Department of State. The following names must be approved by both the Banking and Insurance Departments: acceptance; bank; finance; investment; loan; mortgage; savings; trust and guaranty.

An available New York LLC name may be reserved for a 60-day period.

We can search name availability for you, prior to LLC formation.

New York LLC Formation

New York LLC Filing Procedure: When forming a New York LLC, the New York Articles of Organization must be filed with the New York Secretary of State. The New York Articles of Organization must state:

• The New York LLC name.
• The county within New York in which the office of the LLC is to be located.
• Whether the LLC is to have a registered agent, including the name and address, or whether the LLC will designate the secretary of state as agent and the address to which the process must be served.
• A statement as to whether all or specific members are to be liable for the LLC’s debts, obligations, & liabilities
• New York LLC duration, if it is not formed to exist perpetually.
• Name and address of each New York LLC organizer.

New York LLC Organizers: An New York limited liability company can be formed by one (1) or more individuals, 18 years or older.

New York LLC Members: New York LLCs require 1 or more members. There is no residence or age requirement. New York LLC members are not required to be listed in the Articles of Organization.

New York LLC Duration: The period of duration of a limited liability company shall be perpetual unless the New York Articles of Organization place a limitation on the company’s existence or until dissolution or termination.

New York LLC Registered Agent: An New York LLC must maintain a registered agent and office to receive service of process in New York. The New York registered agent should be available, at an New York physical address, during normal business hours to accept important legal and tax documents on behalf of the New York LLC. The registered agent must sign and state that he/she is familiar with and accepts the obligations of the position.

New York LLC Operating Agreement: After filing, it is highly advised that an operating agreement is drafted which dictates the LLC internal affairs and management. There is no set criteria, but an New York LLC operating agreement should reference how the New York LLC is managed, allocation of profits and losses and member capital contributions. The New York LLC operating agreement does not need to be filed.

New York Professional Limited Liability Company (PLLC): The following licensed professionals are required to form a “professional” Limited Liability Company (PLLC) in New York: Acupuncturist, Architect, Athletic Trainer, Attorney, Audiologist, Certified Clinical Laboratory Technician, Certified Dental Assistant, Certified Public Accountant, Certified Shorthand Reporter, Chiropractor, Clinical Laboratory Technologist, Creative Arts Therapist, Cytotechnologist, Dental Hygienist, Dentist, Dietitian/Nutritionist, Interior Designer, Landscape Architect, Land Surveyor, Licensed Clinical Social Worker, Licensed Master Social Worker, Licensed Practical Nurse, Marriage and Family Therapist, Massage, Therapist, Medical Physicist, Mental Health Counselor, Midwife, Nurse Practitioner, Occupational Therapist, Occupational Therapy Assistant, Ophthalmic Dispenser, Optometrist, Pharmacist, Physical Therapist, Physical Therapist Assistant, Physician, Podiatrist, Professional Engineer, Psychoanalyst, Psychologist, Public Accountant, Registered Physician Assistant, Registered Professional Nurse, Registered Specialist Assistant, Respiratory Therapist, Respiratory Therapy Technician, Speech-Language, Pathologist, Veterinarian or Veterinary Technician.

The New York Department of State, Division of Corporations, requires proof of licensure before forming a professional LLC. Accordingly, New York professional LLCs must submit either a Certificate of Authority (for licensed professionals – except attorneys) under seal from the New York State Department of Education, Division of Professional Licensing Services, or a Certificate of Good Standing from the appropriate Appellate Division (for attorneys), along with the initial filing with the New York Department of State.

Most professionals may obtain a New York Department of Education Certificate of Authority here: http://www.op.nysed.gov/prof/resources.htm.

For attorneys, to obtain a NY Appellate Division Certificate of Good Standing, you must choose the appropriate appellate division: http://www.nycourts.gov/courts/appellatedivisions.shtml.

Then request a Certificate of Good Standing from the appropriate appellate division:

• 1st Appellate Division: http://www.nycourts.gov/courts/ad1/committees&programs/cfc/index.shtml#CertificatesOfGoodStanding.
• 2nd Appellate Division: http://www.nycourts.gov/courts/ad2/attorneymatters_CertificatesofGoodStanding.shtml.
• 3rd Appellate Division: http://www.nycourts.gov/ad3/Admissions/RequestforAdditionalCertificates.pdf.
• 4th Appellate Division: http://www.nycourts.gov/courts/ad2/attorneymatters_CertificatesofGoodStanding.shtml.

For more information on New York Professional LLCs, visit: http://www.op.nysed.gov/corp/pcorpdompllc.htm

New York LLC Post-Filing Requirements

New York LLC Publication:

• New York LLCs and foreign New York LLCs are required to publish a Notice of Formation in 2 different newspapers, in the county in which the office of New York LLC is located.
• The publication must take place for 6 consecutive weeks.
• One of the newspapers must be “printed daily” and the other must be “printed weekly.”
• 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 filed with the Department of State, Division of Corporations.
• The fee for filing the Certificate of Publication is $50.
• The Certificate of Publication forms are available on the Department of State’s website.
• A New York LLC failing to comply with the publication requirements, within 120 days of formation or qualification, will have its authority to carry on, conduct or transact any business in the state suspended. At any time following the suspension of a New York LLC’s authority to carry on, conduct or transact business, the limited liability entity may file the certificate of publication with the affidavits of publication of the newspapers annexed thereto, at which time the suspension of such LLC’s authority to carry on, conduct or transact business shall be annulled.
• The notice of formation must contain the following information (may be abbreviated):
  • New York LLC name;
  • New York LLC effective (or qualification) date;
  • New York County where the New York LLC office is;
  • Physical street address of the principal business location, if there is one;
  • A Statement that the New York Secretary of State is named as the registered agent;
  • Name of the New York registered agent (if applicable); and
  • The business purpose.

New York LLC Biennial Statement/Report: The New York Department of State, Division of Corporations, requires that Corporations and LLCs file a Biennial Statement. The Biennial Statement is due on the anniversary date of filing of the company. The filing fee is $9 and the Statement can be filed online. Failure to file the Biennial Report form will result in the administrative dissolution or revocation of the New York LLC. To file online, please visit: https://appext20.dos.ny.gov/corp_ebiennial_public/corp_app.e_biennial.main_page. To receive automatic reminders from the NY Dept. of State, visit: https://appext20.dos.ny.gov/corp_ebiennial_public/corp_app.e_biennial.email_maint_page.

New York LLC Taxes

New York State Income Tax: The LLC tax rate for New York is variable, depending on New York taxable net income.

Federal Income Tax: An advantage of the LLC is its tax flexibility. LLC members are allowed to select how the entity will be taxed. An LLC may be classified for federal income tax purposes as either a:

• Sole proprietorship
• Partnership, or
• Corporation.

Single member LLCs are treated the same as sole proprietorships. Profits are reported on Schedule C as part of your individual 1040 tax return. Self-employment taxes on New York LLC net income must be paid just as you would with any self-employment business.

Most New York multi-member LLCs elect to be treated as partnerships by the IRS and file IRS Form 1065. On this form, New York LLC profits are reported and allocated to each of the owners according to the New York LLC’s operating agreement. Each owner is given a Schedule K-1, which shows each owner’s share of LLC income or loss. The owner then reports and pays taxes on this income on the owner’s annual 1040 income tax return. It is important to note that as with sole proprietorships, all New York LLC profits are taxed to the owners, even if they are not actually distributed by the LLC. This situation can arise when the LLC needs to use its profits to pay ongoing expenses.

If pass-through taxation is not desired, an LLC may elect to be taxed as a corporation by completing IRS Form 8832. If this election is made, the LLC is taxed as a C corporation by the federal government. Because the corporate income tax rates for the first $75,000 of corporate taxable income are lower than the individual income tax rates that apply to the taxable income of non-corporate taxpayers, it is possible a net income tax savings can result from this tax election. Additionally, an LLC can be taxed like an S corporation by filing IRS Form 2553.

Federal Tax Identification Number/Employer Identification Number (EIN): The Federal Tax Identification Number, also known as the Employer Identification Number (EIN) is a number that is assigned to a business by the Internal Revenue Service. An EIN is like a Social Security Number for a business. It is a requisite for certain business functions such as opening bank accounts or hiring employees. An EIN is typically required if the New York LLC has more than one owner, or any employees.

New York LLC Dissolution

In order to dissolve or cancel an New York LLC, the members or managers must provide completed Articles of Dissolution form to the Department of State by mail, fax or in person. A Department of Revenue clearance is not needed for dissolution of New York LLC. The fee for filing a New York Articles of Dissolution is $60.

Acts Triggering New York LLC Dissolution: A New York LLC can be dissolved upon the happening of one of the following:

• At a time specified in the Articles of Organization or operating agreement;
• Upon occurrence of events specified in the Articles of Organization or operating agreement;
• Consent by the specific number or percentage of members indicated in the operating agreement; or
• At any time there are no members;
• Judicial decree to dissolve by a Court.