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Wednesday, February 1, 2017

“Your New LLC” – Part 5: Moving Your LLC to Another State

So you started your LLC in one state, and it becomes successful, but you then decide to move to a new state for family or other reasons. Now what? Well, you have a few options that will enable you to continue on with your business – some of which may result in only minimal hardships and/or expenditures. Because all of the options discussed below need to be analyzed based on your specific circumstances and involve multiple state’s laws, you are strongly encouraged to seek legal advice from a business law attorney in both your current/old state and your new state. This can make a law firm that has attorneys licensed in multiple states, such as McGrath & Spielberger, with attorneys licensed in FL, GA, NC, OH, SC and TN and attorney connections in most other states, a very valuable resource.

  1. Maintain Your Current LLC in its Original State and Register it in Your New State. As discussed in Part 4 of our series on limited liability companies, when you transact business in a state other than the one where your LLC was formed, you typically need to register your LLC in the new state (often called filing for a Certificate of Authority or Foreign Qualification). Well, this “registration” can be used in the new state even if it becomes your home state, but the original state where you formed your LLC will remain the “home state” for your LLC. This is usually completely fine from a legal standpoint and is quite common. However, there are a few downsides to this approach. You will likely need to pay annual LLC fees in the LLC’s home state as well as in your new home state. You will also likely need to continue to pay for a registered agent and registered office in the LLC’s home state. These may be unnecessary expenditures if you no longer have any ties to the LLC’s home state and/or you simply want to have your LLC’s home state be the same as your new home state. The below options may alleviate these issues in many cases.
  1. Form a New LLC in Your New State and Dissolve Your Current LLC. Another option is to form a new LLC in your new state and dissolve the LLC in your old state. This can be accomplished with one LLC formation filing fee and, usually, one small LLC dissolution fee, which will eliminate the need for the ongoing expenses in your old state that may result if you went with option 1. However, when you form a new LLC you are considered a new business entity which is separate and distinct from your original LLC – even if your new LLC has the same name as your current LLC. This means you will need a new Federal Employer Identification Number (EIN), new bank accounts, etc. You may also lose any corporate credit or   history and will likely need to transfer all assets, including contracts, permits, license, trademarks, etc. to the new LLC. This can be problematic for a company that has been in business for a while and has a lot of existing contracts, loans, clients and employees. But this “clean start” option may very well be a viable alternative for a newer or very lean business.
  1. Domesticate Your Current LLC into Your New State.  Some states will allow you to convert or transform your LLC formed in another state into an LLC in their state. This process, called domestication, allows the LLC to move to a new state (and become an LLC under the new state’s laws) and maintain its corporate history, credit, EIN, contracts, etc. It essentially means that it is the same LLC but just considered to exist under the new state’s laws. While this is seemingly the best option in most cases, the problem is that many state’s laws do not yet allow for domestication of an LLC. For example, in South Carolina a corporation can domesticate into South Carolina from another state, but an LLC currently cannot. However, if the end-result of domestication appears to be the best result for your situation but domestication is not available, then it may make sense to consider the next option – an LLC merger.
  1. Merge Your Current LLC into a New LLC formed in Your New State. While this option may be the most complex from a legal standpoint, if done properly the results may be very similar to those of domestication – you can often remain as the same business with the same EIN, corporate history, contracts, etc. even though you are technically forming a new LLC. The process, although it is simplified here, is to form a new LLC in your new state and then merge your current LLC into the new LLC. The new LLC basically consumes the current LLC and the new LLC can, in many cases, continue on with the business of the current LLC without any disruptions or the need for any asset transfers, etc. The complexities of this option arise in determining what needs to be done to successfully accomplish the merger in both involved states. Depending on the states involved, Articles of Merger, Articles of Dissolution or Termination, or similar forms may need to be filed in one or both states. Custom merger documents may even need to be drafted in some cases, so please discuss your situation with an attorney(s) before proceeding.



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