ENROLLED

COMMITTEE SUBSTITUTE

for

H. B. 2567

(By Delegates Morgan, Stephens, Diserio,

 Jones, Paxton, P. Smith and Staggers)

[Passed April 13, 2013; in effect ninety days from passage.]

AN ACT to amend and reenact §47-9-44 of the Code of West Virginia, 1931, as amended, and to amend said code by adding thereto two new sections, designated §47-9-10a and §47-9-53a, all relating to limited partnerships; authorizing the Secretary of State to administratively dissolve and reinstate limited partnerships; allowing appeals to the circuit court; and authorizing the Secretary of State to revoke and reinstate certificates of authority of foreign limited partnerships.

Be it enacted by the Legislature of West Virginia:

    That §47-9-44 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §47-9-10a and §47-9-53a, all to read as follows:

ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.

§47-9-10a. Administrative dissolution of a limited partnership; reinstatement; appeals.

    (a) The Secretary of State may commence a proceeding to administratively dissolve a limited partnership if the limited partnership does not:

    (1) Pay all applicable fees, franchise taxes or penalties imposed by this chapter or other law within sixty days after the due date; or

    (2) Deliver its annual report to the Secretary of State within sixty days after the due date: or

    (3) The professional license of one or more of the license holders is revoked by a professional licensing board and the license is required for the continued operation of the limited partnership; or

    (4) The limited partnership is in default with the Bureau of Employment Programs as provided in section six, article two, chapter twenty-one-a of this code.

    (b) If the Secretary of State determines that adequate grounds exist to administratively dissolve a limited partnership, the Secretary of State shall make and file a record of the determination and serve the limited partnership with a notice of the determination along with copy of the record by certified mail.

    (1)(A) The limited partnership must correct each issue described in the dissolution record or take reasonable steps toward correcting each issue within sixty days of service of the record on the limited partnership.

    (B) If the limited partnership fails to take adequate steps toward correcting the issue or issues described in the record, the Secretary of State may administratively dissolve the limited partnership by signing the certification of dissolution.

    (C) The Secretary of State shall file the original certificate of dissolution and serve a copy of the certificate of dissolution to the limited partnership by certified mail.

    (2) A limited partnership that has been administratively dissolved may continue its existence only to the extent necessary to wind up and liquidate its business and affairs.

    (3) The administrative dissolution of a limited partnership does not terminate the authority of its agent for service of process.

    (c) A limited partnership that has been administratively dissolved may apply to the Secretary of State for reinstatement within two years after the effective date of dissolution. The application for reinstatement must:

    (1) Recite the name of the limited partnership and the effective date of its administrative dissolution;

     (2) Demonstrate that the grounds for dissolution either did not exist or have been eliminated;

     (3) Demonstrate that the limited partnership's name satisfies the requirements of section two, article nine, chapter forty-seven of this code; and

    (4) Contain a certificate from the Tax Commissioner reciting that all taxes owed by the limited partnership have been paid.

    (d)(1) If the Secretary of State determines that the application for reinstatement contains the information required by subsection (c) of this section and that the information is accurate, the Secretary of State shall cancel the certificate of dissolution and prepare a certificate of reinstatement that recites this determination and the effective date of reinstatement.

    (2) The Secretary of State shall file the certificate of reinstatement and serve the limited partnership with a copy of the certificate.

    (e) When the Secretary of State grants a reinstatement, the reinstatement relates back to and takes effect as of the effective date of the administrative dissolution and the limited partnership resumes its business as if the administrative dissolution had never occurred.

    (f) If the Secretary of State denies a limited partnership's application for reinstatement following administrative dissolution, the Secretary of State shall serve the limited partnership with a notice that explains the reason or reasons for denial.

     (g) A limited partnership may appeal a denial of reinstatement by filing a petition to set aside the dissolution in the circuit court of Kanawha County within thirty days after the date upon which the limited partnership received notice of the denial of reinstatement. The petition shall include a copy of the Secretary of State's certificate of dissolution, the limited partnership's application for reinstatement and the Secretary of State's notice of denial. A copy of the petition shall be served on the Secretary of State by certified mail.

    (h) If a reinstatement is granted by the court, the reinstatement relates back to and takes effect as of the effective date of the administrative dissolution and the limited partnership resumes its business as if the administrative dissolution had never occurred.

§47-9-44. Nonjudicial dissolution.

    A limited partnership is dissolved and its affairs shall be wound up upon the happening of the first to occur of the following:

    (1) At the time or upon the happening of events specified in the certificate of limited partnership;

    (2) Upon the happening of events specified in writing in the partnership agreement;

    (3) The written consent of all partners;

    (4) An event of withdrawal of a general partner, unless at the time there is at least one other general partner and the written provisions of the partnership agreement permit the business of the limited partnership to be carried on by the remaining general partner and that partner does so, but the limited partnership is not dissolved and is not required to be wound up by reason of any event of withdrawal if, within ninety days after the withdrawal, all partners agree in writing to continue the business of the limited partnership and to the appointment of one or more additional general partners if necessary or desired;

    (5) Entry of a decree of judicial dissolution under section forty-five of this article; or

    (6) Signing of a certificate of dissolution by the Secretary of State under section ten-a of this article.

§47-9-53a. Revocation and reinstatement of foreign limited     partnership certificates of authority.

    (a) The Secretary of State may revoke a certificate of authority of a foreign limited partnership to transact business in this state in the manner set forth in subsection (b) of this section if:

    (1) The limited partnership fails to:

    (A) Pay all applicable fees, franchise taxes and penalties owed to the state within sixty days after the due date;

    (B) Deliver its annual report within sixty days of the due date; or

    (C) File a statement to change a name or business address of an agent as required by this article; or

    (2) The limited partnership has made a misrepresentation of any material fact in any application, report, affidavit or other record submitted pursuant to this article: or

    (3) The professional license of one or more of the license holders is revoked by a professional licensing board and the license is required for the continued operation of the limited partnership; or

    (4) The limited partnership is in default with the Bureau of Employment Programs as provided in section six, article two, chapter twenty-one-a of this code.

    (b)(1) The Secretary of State may not revoke a certificate of authority of a foreign limited partnership unless the Secretary of State serves notice to the foreign limited partnership of the Secretary’s intent to revoke the foreign limited partnership’s certificate of authority at least sixty days prior to the effective date of the revocation, by a notice addressed to the foreign limited partnership’s principal office.

    (2) The notice must specify the cause for the revocation of the certificate of authority.

    (3) The authority of the foreign limited partnership to transact business in this state ceases on the effective date of the revocation.

    (c) A foreign limited partnership that has been administratively revoked may apply to the Secretary of State for reinstatement within two years after the effective date of revocation. The application must:

    (1) Recite the name of the foreign limited partnership and the effective date of its administrative revocation;

    (2) Demonstrate that the grounds for revocation either did not exist or have been eliminated;

    (3) Demonstrate that the foreign limited partnership’s name satisfies the requirements of section two, article nine, chapter forty-seven of this code; and

    (4) Contain a certificate from the Tax Commissioner reciting that all taxes owed by the foreign limited partnership have been paid.

     (d) If the Secretary of State determines that the application for reinstatement contains the information required by subsection (c) of this section and that the information is correct, the Secretary of State shall cancel the certificate of revocation and prepare a certificate of reinstatement that recites this determination and the effective date of reinstatement.

    (2) The Secretary of State shall file the certificate of reinstatement, and serve the foreign limited partnership with a copy of the certificate.

    (e) When the Secretary of State grants a reinstatement, the reinstatement relates back to and takes effect as of the effective date of the administrative revocation and the foreign limited partnership resumes its business as if the administrative revocation had never occurred.