INSTRUCTIONS FOR FILING AN APPLICATION FOR REGISTRATION OF A FOREIGN LIMITED PARTNERSHIP

(Forms 306)

 

·         Commentary: A foreign limited partnership is a limited partnership formed under, and the internal affairs of which are governed by, the laws of a jurisdiction other than Texas. Chapter 9 of the Texas Business Organizations Code (BOC) requires a foreign limited partnership that is transacting business in Texas to file an application for registration with the Secretary of State.

The secretary of state does not provide legal opinions as to whether, given a particular set of circumstances, a foreign entity is or will be transacting business in the state and is required to register. Transacting business is not specifically defined by the BOC, but does not include an isolated transaction completed in 30 days or less, doing business in interstate commerce, or merely maintaining a bank account in this state. Generally, a foreign entity is transacting business in Texas if it has an office or an employee carrying on its business in this state or is otherwise pursuing one of its purposes in this state. For example, when the purpose of a limited partnership is to own and receive income from rental properties, it is probably transacting business in this state if it owns an apartment complex in Texas, even if another entity actually manages the property.

Please note that a foreign entity serving as a general partner in a partnership transacting business in Texas is also deemed to be transacting business in Texas and is thus required to register with the secretary of state. See Op. Tex. Att'y Gen. No. JM-7 (1983).

·         Web Form and Content: The web form promulgated by the secretary of state is designed to meet minimum statutory filing requirements and no warranty is made regarding the suitability of this form for any particular purpose. This form and the information provided are not substitutes for the advice of an attorney and it is recommended that the services of an attorney be obtained before preparation of the application for registration.

During the web filing process, you will be directed from screen to screen to provide certain variable information with which to populate the form. After entry of the information, a document image will be displayed for your review. Certain statutorily required provisions have been drafted with standard pre-printed statements. For example, a foreign limited partnership must exist as a valid entity in its jurisdiction of formation at the time of registration. A statement to that effect is included in the application document. The application also contains a statement that the foreign entity consents to the appointment of the secretary of state as an agent of the foreign entity for service of process under the circumstances described by section 5.251 of the BOC. Consequently, please review the document carefully for accuracy since the Texas Business Organizations Code provides that a person commits an offense if the person signs a document the person knows is false in any material respect with the intent that the document be delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

·         Fee: The statutory fee of $750 must be submitted (BOC § 4.155). Payments for web filings may be made by credit card or client account. Selection of the payment method is performed during the subscriber login process. Fees paid by credit card are subject to a statutorily authorized convenience fee of 2.7% of the total fees. To view the available balance in your client account, select the Account tab from the navigation bar and select "Client Account Statements" from the Account Maintenance Menu.

·         Late Filing Penalty: Section 9.054 of the BOC imposes a late filing fee on a foreign entity that has transacted business in Texas for more than 90 days without first having registered with the secretary of state. A foreign entity that has transacted business in the state for more than 90 days is subject to a late filing fee that is equal to the registration fee for each year, or part of a year, that the entity transacted business without being registered.  The late fee is assessed at the time of submission of the document.  The filing fee noted on the document image page at the end of the web filing process is the total of the filing fee for the registration and the late filing fee.

·         Filing Type Selection Screen—Beginning Date of Business Information: Once you have selected "Application for Registration" as the document to be filed, you must provide the date on which the foreign entity first transacted, or the date the entity intends to transact, business in Texas in the field provided in the following format: mm/dd/yyyy (e.g., 12/31/2002).  A foreign entity that has done business for more than 90 days is subject to the late filing penalty.

·         Partnership Name Screen: Enter the legal name of the limited partnership. The partnership name must contain one of the following words of organization or an abbreviation thereof: Limited Partnership or Limited. See the instructions for option A below if the entity name does not contain the words or abbreviations specified.

·         Option A: If the partnership name does not contain one of the words of organization, you must add an appropriate organizational designation to the partnership name for purposes of doing business in Texas by completing Option A. For example, if the name of the partnership in its jurisdiction of formation were Family Ventures Partnership, then the entity would need to complete Option A to qualify the entity under a name such as Family Ventures Partnership, Ltd.

·         Option B: Option B should be used only when the legal name of the partnership is not available for its use in Texas because the entity's name is the same as, deceptively similar to, or similar to the name of an existing domestic or foreign filing entity, or a name reservation or registration filed with the secretary of state. In this case, the entity must obtain its registration and transact business under an assumed name. The assumed name must meet the same requirements of name availability as do entity names. If an assumed name must be used, enter the assumed name in Option B.

After entering a name in a name field, you may wish to conduct a preliminary search of the name by clicking on the "Name Availability Search" button.

·         Name Availability Search Option: Under sections 5.053 and 9.004 of the BOC and the administrative rules adopted by the secretary of state, if the name chosen is the same as, deceptively similar to, or similar to the name of any existing domestic or foreign filing entity, or any name reservation or registration filed with the secretary of state, the document cannot be filed. The administrative rules adopted for determining entity name availability (Texas Administrative Code, title 1, part 4, chapter 79, subchapter C) may be viewed at the secretary of state web site by clicking on the Texas Register icon.

Do not presume that the name searched is "available" and will be approved for filing. Even if you believe the results do not reveal the same or deceptively similar name in use, the Office of the Secretary of State must still perform its own search after receipt of the document. A final determination regarding the entity name is not made until an examiner's review and filing of the document. You are strongly urged not to make financial expenditures or regulatory filings based upon the results of your search.

If you wish our office to provide a preliminary determination on the availability of the proposed name before submission, you may do so by telephone at (512) 463-5555, by dialing 7-1-1 for relay services, or by e-mail to corpinfo@sos.state.tx.us. This is only a preliminary clearance. Also note that the preclearance of a name or the issuance of a certificate under a name does not authorize the use of a name in violation of another person's rights to the name.

·         Jurisdictional Information Screen: You must provide certain information regarding the partnership on this screen.

·         FEIN: If the partnership has obtained a federal employer identification number [FEIN] from the Internal Revenue Service [IRS], enter the tax identification number in the field provided. Enter the nine (9) digit number without punctuation; for example, 123456789. If the partnership has not obtained an FEIN at this time, then move your cursor or tab over to the next field.

·         State/Country: If the foreign entity is formed under the laws of another state of the United States, please enter the two-letter abbreviation used by the postal service to identify the state of formation. After identifying the jurisdiction of formation, you may tab to the date of formation field since the country designation default is set as United States of America.

Non-US Jurisdictions:  If the foreign entity is a non-US corporation, then you may enter a recognized abbreviation or postal code (no more than 3 characters) for the state/province in the state field. For example, a Canadian corporation registered/formed in British Columbia would enter BC in the state code field. You may use the drop down menu to select the appropriate country of formation. If the entity is created under the laws of a foreign jurisdiction for which there is no state or province code, simply select the appropriate foreign country and leave the state field blank.

·         Formation Date: Enter the month, day, and year of formation in the jurisdiction of formation in the following format: mm/dd/yyyy (e.g., 05/15/2002).

·         Principal Office Address Screen: Provide the street or mailing address of the limited partnership’s principal office.

·         Registered Agent And Registered Office Screen: The registered agent can be either: (1) a Texas corporation or other entity such as a limited liability company, limited partnership, partnership, or other legal entity organized under the laws of this state, or a foreign corporation or other foreign entity authorized to transact business in this state; or (2) an individual resident of the state. The foreign entity cannot act as its own registered agent; do not enter the entity name as the name of the registered agent.

Registered Office Address Requirements:  The registered office address must be located at a street address where service of process may be personally served on the entity’s registered agent during normal business hours.  Although the registered office is not required to be the entity’s principal place of business in Texas, the registered office may not be solely a mailbox service or telephone answering service (BOC § 5.201).  The registered office address must be an address that is generally open during normal business hours so that the registered agent may accept service of process. 

·         Consent of Registered Agent Option:  Effective January 1, 2010, a person designated as the registered agent of an entity must have consented, either in a written or electronic form, to serve as the registered agent of the entity.  The designation or appointment of a person as the registered agent by a managerial official is an affirmation by that official that the person named in the instrument has consented to serve as registered agent.  (BOC § 5.2011, effective January 1, 2010)

A copy of the agent’s written or electronic consent does not need to be submitted with the application for registration; however, the foreign entity is provided with the option of including a copy of the agent’s written or electronic consent as part of the application for registration filing.

  • The radio button on the screen is preset to an option that permits the user to continue with the filing without attaching a copy of the registered agent’s consent.  When this option is marked, the application for registration will show selection of a pre-printed statement that indicates that the entity has retained a copy of the consent of registered agent.
  • Select the radio button “Consent Attached” to include a copy of the person’s consent to serve as the entity’s registered agent.
  • If you selected the option “Consent Attached,” the next screen will be the Consent attachment screen.  The copy of the agent’s consent would be attached as an electronic file; the attachment must be in TIF, TXT, or PDF file format to be accepted.
  • If you decide not to include the consent of the registered agent and do not wish to provide an attachment, click Continue to proceed to the next screen. If you proceed to the next screen without providing an attachment, the application for registration will show selection of a pre-printed statement that indicates that the entity has retained a copy of the consent of registered agent.

·         General Partner Screen: A minimum of one general partner is required. A partner may be a natural person, or an organized entity, such as a corporation or limited liability company, or other legal person. If the partnership is to engage in a regulated activity, you may wish to contact the regulatory authority to determine whether the partners need to meet other requirements.

Click on "Add General Partner" to initiate the entry of general partner name and address information. After entering the information, click on "Update" to return to the Partner Screen to continue. You may edit or delete the general partner information displayed in the grid by clicking on the appropriate button.

NOTE: A foreign limited partnership must file an amendment to its registration to reflect the admission of a new general partner; the withdrawal of a named general partner; and to reflect a change of name of a general partner stated in its application for registration.  (BOC § 9.009(a)(3))  The form adopted for this purpose, Form 412, is not available on SOSDirect and must be submitted by mail, by fax, or by personal delivery.

·         Supplemental Provisions and Attachments Screen: Additional space has been provided for the entry of additional text to an article within this form or to provide for additional articles to contain optional provisions. You may enter the additional text in the space provided for "Supplemental Provisions/Information" or you may attach the additional provisions by following the instructions for attaching an electronic file or files as part of the submitted document. If a letter of consent for the use of a similar name has been required, then the letter of consent must be sent as an attachment to the document being submitted. Attachments must be in TIF, TXT, or PDF file format to be accepted.

Reminder

A document filed with the Secretary of State is a public record.  The document, and the information provided in the document, will be available online through SOSDirect for public viewing.  Do not include confidential information, such as social security numbers, within the supplemental provisions section or in an electronic attachment.

·         Execution Screen: Each general partner must sign the application for registration of a foreign limited partnership. A general partner signs the electronic document by typing the general partner’s name in the field provided. If the general partner is a legal entity such as a corporation, a person authorized to execute documents on behalf of such entity must sign the application for registration. In this case, type the name and representative capacity of the person signing on behalf of the entity. For example, Jane Esquire, President of ABC Organizers, Inc., General Partner. If there is more than one general partner, click the "Add Additional Signature" button to display an additional signature field.

·         Delayed Effective Date: An application for registration becomes effective when filed by the secretary of state. However, pursuant to sections 4.052 and 4.053 of the BOC the effectiveness of the instrument may be delayed to a date not more than ninety (90) days from the date the instrument is signed. Please note that on the filing of a document with a delayed effective date, the computer records of the secretary of state will be changed to show the filing of the document, the date of the filing, and the future date on which the document will be effective. In addition, at the time of such filing, the status of the entity’s registration will be shown as “in existence” on the records of the secretary of state.

·         Document Display Screen: After completing the entry screens, the system will display an image of the document for purposes of your review. Please review the document carefully for accuracy. Please note that a person commits an offense under section 4.008 of the BOC if the person signs or directs the filing of a filing instrument the person knows is materially false with the intent that the instrument be delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

·         Edit Filing: If the document must be corrected, click on the "Edit Filing" button to return to the entry screens. Do not use the back button to return to prior screens; using the back button will not update or revise the information contained in the filing. If you wish to retain a copy of the document you are submitting, use the printer function of your browser to print the screen.

·         Cancel Filing: Click on the “Cancel Filing”button to terminate the electronic filing process.

·         Submit Filing: You must click on the "Submit Filing" button to transmit the document. You will receive a message confirming receipt of the filing that contains the session ID and the document tracking number of the document transmitted. You may wish to attach this receipt notice to your retained copy.

  • Franchise Taxes: Limited partnerships are subject to a state franchise tax.  Information on state franchise tax may be obtained from the Comptroller of Public Accounts, Tax Assistance Section, Austin, Texas, 78774-0100, (512) 463-4600 or (800) 252-1381. The Corporations Section home page provides links to the IRS and Texas Comptroller web sites.
  • Assumed Name:  If the partnership obtained its registration under an assumed name, then the partnership is required to file an assumed name certificate in compliance with chapter 71 of the Texas Business & Commerce Code. The assumed name certificate is to be filed with the secretary of state and with the county clerk in the county in which the registered office is located and the county in which the principal office is located. The form promulgated by the secretary of state for making the assumed name filing is form number 503. This form is not acceptable for filing in the county clerk’s office because it does not include the notary acknowledgement required for county filings. The fee for filing the assumed name certificate is $25.00. DO NOT INCLUDE THE ASSUMED NAME CERTIFICATE AS AN ATTACHMENT TO THE APPLICATION FOR REGISTRATION. IT MUST BE SUBMITTED AS A SEPARATE FILING.