New York business owners are required to keep the state updated regarding any changes to their limited liability company (LLC). Updates are provided by filing amendments to the LLC’s Articles of Organization. The process by which to amend articles varies from state to state which oftentimes leaves business owners confused about which actions to take.
In this article, we discuss what Articles of Organization are and the reasons to amend them, outline how to amend Articles of Organization and the consequences of not doing so, and detail the benefits of hiring an attorney when managing your New York Articles of Organization.
What are Articles of Organization?
Articles of Organization is the document filed to form a Limited Liability Company (LLC) in New York. The document renders a business valid and grants it the rights and privileges of operating as an LLC. An LLC does not legally exist until the forms are filed with and approved by the New York state. This is required regardless of whether it is a single-member or multi-member LLC. Some information contained within the Articles of Organization include:
- The name of the company
- The mailing address of the LLC
- The effective start date for the LLC
- The principal place of business for the LLC
- A description of the LLC’s business activities
- The name and registered office of the Registered Agent for the LLC
- Names and addresses of LLC owners and managers
- Signatures from LLC organizers or managers listed in the document
The information contained within the Articles of Organization must be made public and always kept up to date. When an LLC is required to make changes to its formation documents, this is known as an amendment. Businesses in New York must inform the Department of State by filing formal paperwork. The state allows companies to file amendments electronically, thereby speeding up the process.
Reasons to amend Articles of Organization
There are several instances where an LLC is required to make changes to its Articles of Organization, including:
- Change in address: A New York LLC must inform the State Department if it changes its registered office or operating address. Doing so means it can continue to receive all legal documents.
- Change in purpose: If the LLC changes the nature of its operations, it must notify the state. This allows for proper categorization of the business.
- Change in the company name: Going through the amendment process is necessary when changing an LLCs name. The LLC must check the naming regulations of the state beforehand.
- Change in contact information: Notifying the state of any changes to contact information ensures they are always able to reach the business. Ensure that the registered agent acting as the point of contact always has up-to-date contact information on file.
- Change in members: The New York State Department does not require LLCs to document the names, addresses, and contact information of managers and members. Nonetheless, if the LLC chooses to document them regardless or wants to remove them, an amendment is necessary. LLCs can also update this information using a Biennial Statement Report.
- Change in tax election: An LLC can change its tax status and elect to be taxed as an S corporation. Such corporations do not generally pay taxes. Upon completing this change, LLCs must amend their Articles of Organization.
Other circumstances that warrant an amendment to the Articles of Organization include changes in the number of authorized shares, changes in the number of directors, change in financial structure, and a change from member-managed to manager-managed.
What happens if you don’t change your Articles of Organization?
If a New York LLC fails to keep its Articles of Organization up to date, it will not qualify for a Certificate of Incorporation. This certificate is a document issued by the state which indicates that the LLC has paid all of its state-required fees and filed all required documents. If a company fails to obtain a Certificate of Incorporation, its growth is limited. This is due to:
- An inability to obtain business licenses
- An inability to open a business bank account or get credit
- An inability to raise capital
- An inability to do business across the state (or international) lines
In short, keeping LLC information up to date is important for auditing purposes upon expanding the company in the future. This cannot be achieved without an authorized Certificate of Incorporation.
How to change Articles of Organization in New York
Where an amendment is necessary to ensure formation documents match current company information, LLCs may follow the below steps:
1. Determine whether an update is needed
Ascertain whether it is necessary to file a New York Articles of Amendment before doing so. Consider what information is necessary to include in the change document. Articles of Amendment are also necessary where the company intends to add or delete information from any of the original articles. Remember that LLCs can, but are not required to, inform the New York Department of State regarding management or member changes. This is due to such change being considered an internal business record.
2. Complete Government forms
Complete and file the Certificate of Amendment form with the Department of State. This form is available on the Department of State website. It is recommended that you report and file amendments to original articles immediately upon their implementation. The New York state does not require LLCs to publish notice of changes to its Articles of Organization. General information typically required on a Certificate of Amendment includes the date of filing, the exact text of each amendment, and an authorized signature. The NY Certificate of Amendment form is open-ended, meaning it is up to the company to be specific about the changes being made. Unlike other US states, New York does not require companies to issue a business ID number when completing government forms. Instead, a signature from an authorized manager or member is the only identifying information necessary.
3. File amended articles
Upon completing the Certificate of Amendment form, New York LLCs must be forwarded to the Department of State by mail, fax, or in person. Make sure to review the changes before sending them. The address is as follows:
New York State Department of State Division of Corporations One Commerce Plaza 99 Washington Avenue Albany, NY 12231 Phone: (518) 473-2492 Fax file: (518) 474-1418
4. Pay fees
The New York State Department requires a filing fee to be submitted with the amended forms. These fees may change periodically, so it’s important to check the fee schedule before completing a Certificate of Amendment for an LLC. Currently, there is a mandatory $60 filing fee for the Certificate of Amendment in New York. The state accepts fee payment in the form of:
- Money order
- American Express
Nonetheless, do not send cash if you submit the certificate by mail. If you submit payment by debit or credit card, include a Credit Card/Debit Card Authorization Form alongside the Certificate of Amendment. Ensure that checks are payable to the Department of State before issuing them.
The New York Department of State also offers expedited processing of time-sensitive document changes. To have documents processed within 24 hours, LLCs can pay an additional $25.00 per document for expedited processing on top of the original $60 fee. Alternatively, the company must pay an additional $75 fee for same-day expedited processing. For expedited processing within two hours, an additional $150 fee is required. To qualify for expedited processing, companies must submit a separate, non-refundable fee and note on an envelope titled “Expedited Processing.” If paying by debit or credit card, indicate the level of expedited service required in the designated space on the Credit Card/Debit Card Authorization Form.
5. Update company documents with changes
Once changes have been authorized by the New York Department of State, update information on other forms used by the LLC. This includes:
- Operating agreements
- Leases and contracts
- Marketing materials
- Banking information
Address and name changes typically require the most amount of document modifications.
Why you should contact a business
attorney before amending
It is not mandatory for LLC members to recruit the help of an attorney when amending Articles of Organization. However, it is advisable to seek legal counsel in order to guarantee correct filing and documentation.
Wyoming Trust & LLC Attorney supports LLCs in all areas of businesses, from starting up to filing changes. We assist individuals with matters related to successfully operating an LLC – such as submitting a Certificate of Amendment. We can help you determine when a Certificate of Amendment is required and support businesses in preparing and filing change documents. We pride ourselves on our commitment to ensuring all LCCs under our protection are formed as legal entities and remain compliant with state law.