INSTRUCTIONS FOR AN APPLICATION FOR REGISTRATION OF A

LIMITED LIABILITY PARTNERSHIP

(Form 307)

 

·         Commentary: Chapter 9 of the Texas Business Organizations Code (BOC) requires a foreign limited liability partnership that is transacting business in Texas to file an application for registration with the Secretary of State. “Foreign limited liability partnership” includes both a partnership organized under the laws of another state or territory of the United States and a partnership organized under the laws of a foreign country.

 

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 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 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).

 

NOTE:  A foreign limited partnership that is subject to registration under section 9.004 of the BOC and that has the status of a limited liability partnership or limited liability limited partnership under the laws of a jurisdiction other than Texas must also file an application for registration under section 9.007 of the BOC before transacting business in Texas.

 

·         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 liability 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 filing fee is $200 for each general partner in this state, but not less than $200 or more than $750 (BOC § 4.158). 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/Partnership Selection Screen – The filing type selection screen collects the following information: 1) the type of document being filed; 2) the organizational structure of the foreign partnership submitting the application; 3) information relating to the registration of the partnership, if the partnership is organized as a foreign limited partnership and holds a separate registration as a foreign limited partnership; and 4) the number of general partners in Texas at the time of submission.  The filing type selection is “Application for Registration.”

 

Underlying Partnership:  Once the filing type has been selected, you must enter information relating to the organizational structure of the partnership.  Two alternatives are shown in the drop down box: Foreign Limited Partnership and Other Foreign Partnership.

 

Foreign Limited Partnership:  If the partnership is organized in its jurisdiction of formation as a limited partnership, select “Foreign Limited Partnership” from the drop down.  Generally, a limited partnership is a partnership that is required under the laws of its jurisdiction of formation to have one or more general partners and one or more limited partners.  The characterization of the organizational structure of the partnership is dependent on the laws of its jurisdiction of formation.  Selection of Foreign Limited Partnership will require the provisions of further information relating to the foreign limited partnership. 

 

Other Foreign Partnership:  If the partnership is not organized as a limited partnership in its jurisdiction of formation, select “Other Foreign Partnership” from the drop down and then continue to the field that asks for the number of general partners transacting business in Texas.

 

Selection of Foreign Limited Partnership:  A foreign limited partnership that is also registered in its jurisdiction of formation as a limited liability partnership or limited liability limited partnership must obtain a separate registration to transact business in Texas pursua nt to chapter 9 of the BOC. Provision of the information requested in the next field will help to associate the separate registration held as a foreign limited partnership with the entity’s separate registration as a foreign limited liability partnership. 

 

1.    If the foreign limited partnership has a filed a separate application for registration to transact business in Texas, please enter the file number issued by the Texas secretary of state and associated with the separate registration. If you do not know the file number of the foreign limited partnership’s registration, click on Find Entity.

a.   On the Find Entity Name Search screen, input the name of the foreign limited partnership and click on Search.

b.  The search results will be returned showing the names of entities that match or are very similar to the name searched.

c.  Select the record of the foreign limited partnership that is submitting its registration as a foreign limited liability partnership or foreign limited liability limited partnership by clicking on the radio button in the column entitled "Mark."  

d.  f the entity for which you searched does not appear in the search results and you wish to conduct another search, click on New Search.

e.   If the search does not retrieve any results under the name searched, and you believe that this information is in error, you may wish to verify the results of your search by calling our office at (512) 463-5555 or by sending an e-mail to corpinfo@sos.state.tx.us.

f.  Click on Initiate New Filing to return to the Filing Type/Partnership Selection Screen, and continue with your filing.

2.  If the partnership is organized as a foreign limited partnership, but does not hold a current registration to transact business in Texas, or if you could not find the corresponding record for the entity’s registration as a foreign limited partnership, you will need to select the alternative “Other Foreign Partnership” from the drop down in the Filing Type/Partnership Selection Screen to continue with the filing.

 

·         Number of Partners:  Provide the number of partners in Texas as of the date of submission of the application for registration. For purposes of completing the application and calculation of the registration filing fee, a general partner is considered to be in Texas if:

 

1.      the partner is a resident of the state;

2.      the partner is domiciled or located in the state;

3.      the partner is licensed or otherwise legally authorized to perform the services of the partnership in this state; or

4.      the partner, or a representative of the partnership working under the direct supervision or control of a general partner, will be providing services or otherwise transacting the business of the partnership within the state for a period of more than 30 days.

 

If, after applying the above factors, it is determined that there are no partners located in Texas, enter the number 0 in the field provided. Do not leave the field blank. If there are no partners in Texas, then the filing fee assessed will be the minimum filing fee of $200.

 

All references to "partners" in the context of a foreign limited liability partnership mean general partners only. An application for registration, renewal, amendment, or withdrawal must be executed by at least one general partner.

 

In the case of a limited liability partnership that is a limited partnership, calculation of the number of partners in Texas for purposes of the filing fee would be determined by the number of general, not limited, partners in Texas at the time of submission.

 

·         Beginning Date of Business Information: Once you have provided the number of general partners in Texas, you must provide the date on which the foreign limited liability partnership first transacted, or the date the partnership intends to transact, business in Texas in the field provided in the following format: mm/dd/yyyy (e.g., 12/31/2009).  A foreign entity that has done business for more than 90 days is subject to the late filing penalty.  Click on Continue to get to the next entry screen.

 

·         Partnership Name Screen: Provide the legal name of the limited liability partnership. The limited liability partnership name must include the words "limited liability partnership" or the abbreviation “LLP.” In the case of a limited partnership that has the status of a limited liability partnership, the name may include the terms "limited liability limited partnership" or the abbreviation “LLLP.”

 

·         Assumed Name: If the limited liability partnership name does not contain one of the words of organization, you must add in the field provided an appropriate organizational term to the partnership name for purposes of doing business in Texas. For example, if the name of the limited liability partnership in its jurisdiction of formation is EntityNameSearch.com, then the partnership would need to register the partnership with a term of organization added, e.g., EntityNameSearch.com, L.L.P.

 

·         Name Availability: The secretary of state does not review the name of the partnership, or a change of name, to determine whether the name conforms with the entity name availability rules.

 

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

 

·         FEIN: If the limited liability partnership has obtained a federal employer identification number [FEIN] from the Internal Revenue Service [IRS] at the time of submission, enter the tax identification number in the field provided. Enter the nine (9) digit number without punctuation or spaces; 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. Please note that once the partnership obtains its federal tax identification number, the partnership should amend its application for registration to provide the identification number required under section 9.007 of the BOC.

 

·         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 the partnership’s initial registration as a limited liability partnership in the jurisdiction of formation in the following format: mm/dd/yyyy (e.g., 05/15/2008).

 

·         Principal Office Address Screen: Provide the street or mailing address of the limited liability 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 partnership cannot act as its own registered agent; do not enter the partnership 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.

·         Purpose Screen: The purpose or purposes that the partnership proposes to pursue in Texas must be entered in the space provided. You may use general language, such as "transaction of any lawful business or activity under the law of Texas"; however, it is not acceptable to use "transaction of all lawful business permitted under the laws of [another state]." Other state laws may permit partnerships to pursue purposes not authorized by Texas law. The entity must be authorized to pursue the same business or activity under the laws of its jurisdiction of formation.

 

·         Execution Screen: The statement must be executed by a majority in interest of the partners or by one or more partners authorized by a majority in interest of the partners. A partner signs the electronic document by typing the partner's name in the field provided. If the partner is a legal entity such as a corporation, a person authorized to execute documents on behalf of such entity must sign the statement of qualification. 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., Managing Partner. Click the "Add Additional Signature" button to display an additional signature field for additional partners.

 

·         Delayed Effective Date: An application for registration becomes effective when filed by the secretary of state. However, pursuant to sections 4.052, 4.053, and 152.905 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.  Please note that you cannot edit the document to correct or change: the number of partners in the partnership or the underlying organizational structure of the partnership. Consequently, if the error to be corrected involves the number of partners in the partnership or the underlying organizational structure of the partnership, you must cancel the filing and initiate a new 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.

 

·         Term of Registration: The registration of a foreign limited liability partnership is effective for a term of one year from the date the application for registration is filed by the secretary of state unless revoked, renewed, or voluntarily withdrawn by filing a written withdrawal notice. A partnership may renew its application for registration prior to the expiration of the term of registration. (Form 308)

 

·         Franchise Taxes: Limited liability 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 foreign entity obtained its registration under an assumed name, the entity 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.