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Do I file with the SOS my LLC out of DE for a services provided business operating in CA?

Yuba City, CA |

I am unclear about the filing/registering with the CA SOS and a LLC out of DE. The business address is in CA & all services provided from the business are in CA.

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Attorney answers 4

Posted

It sure sounds like you are doing business in California, so you will need to register as a "foreign" LLC (foreign here meaning out-of-state).

www.bayoaklaw.com. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.

Asker

Posted

Andrew, thank you for the answer, it is very helpful. I commented on the answer provided above & would greatly appreciate your feedback as well. Per the website for CA SOS, the rules/law changed just this month. As for the process of service address, I am unsure if I would list the agent in DE, an individual, or my place of actual business address in CA?

Andrew Kevin Jacobson

Andrew Kevin Jacobson

Posted

The process of service address has to be a street address in California at which the agent can normally be found. It cannot be a post office box, or an out of state address, so you cannot use the agent in Delaware. Thus, you can use an individual's residential street address, or the street address of the business if the individual agent is regularly found there. Here is the Secretary of State's explanation: Item 12. Enter the name of the agent for service of process in California. An agent is an individual (manager, member or any other person, whether or not affiliated with the company) who resides in California or a corporation designated to accept service of process if the company is sued. The agent must agree to accept service of process on behalf of the company prior to designation. Note: Before a corporation is designated as agent, that corporation must have previously filed with the California Secretary of State, a certificate pursuant to Section 1505. Note, a limited liability company cannot act as its own agent and no domestic or foreign corporation may file pursuant to Section 1505 unless the corporation is currently authorized to engage in business in California and is in good standing in the records of the California Secretary of State. If an individual is designated as agent, complete Items 12 and 13. If a corporation is designated as agent, complete Item 12 and proceed to Item 14 (do not complete Item 13). Item 13. If an individual is designated as agent for service of process, enter a business or residential street address in California. (A P.O. Box address is not acceptable). Please do not enter “in care of” (c/o) or abbreviate the name of the city.

Asker

Posted

Andrew, again thank you. I am doing a research paper about small businesses; the ins & outs of the different types i.e. LLC, Sole Proprietor, S & C Corp & I'm finding myself getting very confused. Would you be willing to help me understand some of the information I have found to be the most confusing? It seems many small business owners are under the impression if they LLC out of DE or NV, they do not have to pay the CA tax fee? ($800 +) Then I see conflicting information on different websites stating if the place of actual business is in CA, regardless of where the business is registered out of, the business must pay the fee above, not just the State of registration fees (approx $200 for DE). If this is the case, then why would a small business find the need to Register in a different state than the one in which the business is run?

Andrew Kevin Jacobson

Andrew Kevin Jacobson

Posted

Small businesses really shouldn't register in Delaware -- if they become big, then can do so later. See this article for more details: http://www.bayoaklaw.com/entrepreneurial-trap/

Posted

Yes. See the forms under Foreign Limited Liability Companies (LLCs) at

http://www.sos.ca.gov/business/be/forms.htm#llc

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

Asker

Posted

I went to this link and the information is extremely helpful! Thank you I just one question about the information? If my registered agent is an individual in DE, do I use the DE address or my business address in CA for process of service. I see the law/rules just changed on 01/01/2103 & unfortunately, I do not know what it stated prior to this date.

Posted

I agree with my colleagues.

You may find the post at the link below helpful.

This information does not constitute legal advice and does not establish an attorney-client relationship.

Asker

Posted

Dana, fantastic information, thank you. I posted a comment on the post above, I would love your feedback also. Please take a look.

Posted

Yes, you will need to qualify the Delaware company to do business in California. In order to do this, you will need to file the correct form with the filing fee, along with a Certificate of Good Standing, which you'll need to order first from the Delaware Secretary of State.

This is the form you'll need to file: http://www.sos.ca.gov/business/llc/forms/llc-5.pdf

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