COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 696
(By Senators Kessler, Browning, Chafin, Jenkins, Palumbo, Snyder,
Stollings, Williams, Yost and Hall)
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[Originating in the Committee on Government Organization;
reported March 1, 2010.]
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A BILL to amend and reenact §47B-10-1 and §47B-10-4 of the Code of
West Virginia, 1931, as amended, all relating generally to
limited liability partnerships; updating registration
requirements; establishing procedures for and consequences of
administrative dissolution and reinstatement; and setting
notice requirements and appellate options with regard to
administrative decisions on dissolution and reinstatement.
Be it enacted by the Legislature of West Virginia:
That §47B-10-1 and §47B-10-4 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 10. LIMITED LIABILITY PARTNERSHIP.
§47B-10-1. Registered limited liability partnerships.
(a) To become a registered limited liability partnership, a partnership shall deliver and file with the Secretary of State a
statement of registration stating:
(1) the name of the partnership;
(2) the address of its principal office;
(3) the address of a registered office;
and
(4) the name and address of a registered agent for service of
process, if any;
(5) an e-mail address to where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply;
(6) a brief statement of the business in which the partnership
engages;
(7) the name and address of each partner authorized to execute
instruments on behalf of the partnership;
(8) any other matters that the partnership determines to
include; and
(9) that the partnership thereby registers as a registered
limited liability partnership.
(b) The registration shall be executed by one or more partners
authorized to execute a registration.
(c) The registration shall be accompanied by a fee of $250.
(d) The Secretary of State shall register as a registered
limited liability partnership any partnership that submits a
completed registration with the required fee and deliver to the partnership or its representative a receipt for the record and the
fees.
(e) A partnership registered under this section shall pay, in
each year following the year in which its registration is filed,
on
a date specified by the Secretary of State, an annual fee of $500.
The fee shall be accompanied by a notice, on a form provided by the
Secretary of State, of any material changes in the information
contained in the partnership's registration.
The annual notice and
fee is due between January 1 and July 1 of each year.
(f) Registration is effective:
(1) Immediately after the date a registration is filed; or
(2) On a date specified in the statement of registration,
which date shall not be more than sixty days after the date of
filing.
(g) Registration remains effective until:
(1) It is voluntarily withdrawn by filing with the Secretary
of State a statement of withdrawal; or
(2)
Thirty days after receipt by the partnership of a notice
from the Secretary of State, which shall be sent by certified mail,
return receipt requested, that the partnership has failed to make
timely payment of the annual fee specified in subsection (e) of
this section, unless the fee is paid within a thirty-day period.
It is administratively dissolved by the Secretary of State:
Provided, That the Secretary of State commenced a proceeding to dissolve the limited liability partnership and notification of the
administrative proceeding to dissolve the limited liability
partnership was delivered to the limited liability partnership.
The Secretary of State may commence the administrative proceeding
due to:
(A) a limited liability partnership's failure to pay fees
imposed by this chapter or any other law within sixty days after
the fees were due; or
(B) a limited liability partnership's failure to deliver its
annual notice to the Secretary of State within sixty days after the
notice was due.
(h) The procedure for administrative dissolution is as follows:
(1) If the Secretary of State determines that one or more
grounds exist under this section for dissolving a limited liability
partnership, he or she shall notify the limited liability
partnership in writing, of his or her determination.
(2) If the limited liability partnership does not correct each
ground for dissolution or demonstrate to the reasonable
satisfaction of the Secretary of State that each ground determined
by the Secretary of State does not exist within sixty days after
service of the Secretary of State's notice, the Secretary of State
shall administratively dissolve the limited liability partnership
by issuing a certificate of administrative dissolution that recites
the ground or grounds for dissolution and its effective date. The Secretary of State shall send a copy of the administrative
dissolution to the limited liability partnership.
(i) A limited liability partnership administratively dissolved
continues its existence but may not carry on any business except
that necessary to wind up and liquidate its business and affairs
and notify claimants of such.
(j) The administrative dissolution of a limited liability
partnership does not terminate the authority of its registered
agent.
(k) A limited liability partnership administratively dissolved
under this section may apply to the secretary of state for
reinstatement within two years after the effective date of
dissolution. The application must:
(1) Recite the name of the limited liability partnership and
the effective date of its administrative dissolution;
(2) State that the ground or grounds for dissolution either
did not exist or have been eliminated;
(3) Contain a certificate from the tax commissioner reciting
that all taxes owed by the limited liability partnership have been
paid.
(l) If the Secretary of State determines that the application
contains the information required by subsection (k) of this section
and that the information is correct, he or she shall cancel the
certificate of dissolution and prepare a certificate of reinstatement that recites his or her determination and the
effective date of reinstatement, file the original of the
certificate and send a copy to the limited liability partnership.
(m) When the reinstatement is effective, it relates back to
and takes effect as of the effective date of the administrative
dissolution and the limited liability partnership resumes carrying
on its business as if the administrative dissolution had never
occurred.
(n) If the Secretary of State denies a limited liability
partnership's application for reinstatement following
administrative dissolution, he or she shall notify the limited
liability partnership in writing to explain the reason or reasons
for denial.
(o) The limited liability partnership may appeal the denial of
reinstatement to the circuit court of the county where the limited
liability partnership is located within thirty days after service
of the Secretary of State's notice. The appeal to the circuit
court to set aside the dissolution shall include
copies of the
Secretary of State's certificate of dissolution, the limited
liability's application for reinstatement and the Secretary of
State's notice of denial.
(p) The circuit court may summarily order the Secretary of
State to reinstate the dissolved limited liability partnership or
may take other action the circuit court considers appropriate.
(q) The circuit court's final decision may be appealed as in
other civil proceedings.
(h) (r) The status of a partnership as a registered limited
liability partnership and the liability of the partners thereof
shall not be affected by:
(1) Errors in the information contained in a statement of
registration under subsection (a) of this section or notice under
subsection (e) of this section; or
(2) Changes after the filing of the statement of registration
or notice in the information stated in the registration or notice.
(i) (s) The Secretary of State may provide forms for the
statement of registration under subsection (a) of this section or
a notice under subsection (e) of this section.
(j) (t) All fees and moneys collected by the Secretary of
State pursuant to the provisions of this article shall be deposited
by the Secretary of State as follows: One-half shall be deposited
in the state General Revenue Fund and one-half shall be deposited
in the service fees and collections account established by section
two, article one, chapter fifty-nine of this code for the operation
of the office of the Secretary of State. The Secretary of State
shall dedicate sufficient resources from that fund or other funds
to provide the services required in this article.
§47B-10-4. Applicability of article to foreign and interstate
commerce.
(a) A registered limited liability partnership formed under
this article may conduct its business, carry on its operations and
have and exercise the powers granted by this chapter in any state,
territory, district or possession of the United States or in any
foreign country.
(b) It is the intent of the Legislature that the legal
existence of registered limited liability partnerships formed under
this article be recognized outside the boundaries of this state and
that the laws of this state governing such registered limited
liability partnerships doing business outside this state be granted
the protection of full faith and credit under the Constitution of
the United States.
(c) Notwithstanding section six, article one of this chapter,
the internal affairs of registered limited liability partnerships
formed under this article, including the liability of partners for
debts, obligations and liabilities of or chargeable to the
partnership, shall be subject to and governed by the laws of this
state.
(d) Before transacting business in this state, a foreign
registered limited liability partnership shall:
(i) (1) Comply with any statutory or administrative
registration or filing requirements governing the specific type of
business in which the partnership is engaged; and
(ii) (2) File a notice with the Secretary of State, stating the name of the partnership or if its name is unavailable for use
in this state, a limited partnership name that satisfies the
requirements of section four-e of this article, including a copy of
the resolution of its partners adopting the fictitious name; the
address of its principal office; the address of a registered office
and the name and address of a registered agent for service of
process, if any; an e-mail address to where informational notices
and reminders of annual filings may be sent, unless there is a
technical inability to comply; a brief statement of the business in
which the partnership engages; the name and address of each partner
authorized to execute instruments on behalf of the partnership and
any other matters that the partnership determines to include; and
a brief statement of the business in which the partnership engages.
Such notice shall be effective for two years from the date of
filing, after which time the partnership shall file a new notice.
(e) The name of a foreign registered limited liability
partnership doing business in this state shall contain the words
"Registered Limited Liability Partnership" or the abbreviation
"L.L.P." or "LLP" as the last words or letters of its name.
(f) Notwithstanding section six, article one of this chapter,
the internal affairs of foreign registered limited liability
partnerships, including the liability of partners for debts,
obligations and liabilities of or chargeable to the partnership,
shall be subject to and governed by the laws of the jurisdiction in which the foreign registered limited liability partnership is
registered.
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