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Forming an LLC in New York
in New York Business Formation
Here is an outline of the steps you need to follow in order to form an LLC in New York. You should also read the general section on forming an LLC for information that is applicable in any state.
1. Choose a business name for the LLC and check for availability.
Please see our section on choosing and checking the availability of a name for your small business, as well as our section on the trademark law aspects of choosing a name.
New York law requires that an LLC name contain the words "Limited Liability Company" or the abbreviation "L.L.C." or "LLC". Additionally, your business name must be distinguishable from other names on file with the Department of State. There are a large number of words that cannot be included in the name without prior approval. For a full list, see N.Y. Ltd. Liab. Co. Law § 204 (link is to entire code, you need to click on the LLC section, then choose Article 2 and locate the specific provision).
You can search for the availability of your proposed name by writing to the Department of State, Division of Corporations, 41 State Street, Albany, NY 12231. The written inquiry should state that you wish to determine the availability of a business name (or names) and list the name (or names) to be searched. There is a $5 fee for each name, which must accompany the request. Searching the availability of a name does not reserve the name.
Although you are not required to do so, consider registering your business name as a federal and/or state trademark.
2. Prepare and file articles of organization with the Department of State.
The filing fee is $200. The Department of State website has a sample articles of organization for a New York LLC.
If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization. For general information on articles of organization, see the Articles of Organization page.
3. Publish a notice of LLC formation and file a Certificate of Publication.
Publish a notice of formation for six consecutive weeks in a newspaper assigned to you by your county recorder's office. The State of New York website has a directory of New York county web sites, which you can reference to find the recorder for the county in which you will be doing business. Once this step is completed, you must file a Certificate of Publication form with the Department of State. There is a $50 filing fee.
4. Negotiate and execute an operating agreement.
New York requires an operating agreement in order to form an LLC. It may be entered into before, at the time of, or within 90 days after filing articles of organization. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.
5. Obtain any required local licenses.
See the general section on forming a LLC for details.
6. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.
Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
If you have an employee or employees in New York, you need register for New York employment taxes. You can learn more about and register for employment taxes at the New York State Department of Taxation and Finance's Business Taxpayer Home Page. An especially useful publication on that site is the Employer's Guide to Unemployment Insurance, Wage Reporting, and Withholding Tax.
Another useful publication for new business owners is the New York State Tax Guide for New Businesses.
Whenever you hire an employee in New York, you must inform both the IRS and the State of New York. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New York New Hire Home Page.
If you have employees in New York, you must carry workers' compensation insurance.
As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
The State of New York does not collect a corporate income tax from limited liability companies, but does require an annual filing fee from multi-member LLCs who are treated as partnerships for tax purposes. According to a recent bulletin from the New York State Department of Taxation and Finance, single-member LLCs that are treated as disregarded entities for tax purposes are not subject to the annual fee. For LLCs with more than one member, the fee is $50 x the number of LLC members, with a minimum fee of $325 and a maximum fee of $10,000. Multi-member LLCs must pay the fee and submit the Filing Fee Payment Form within thirty days of the end of the LLC's tax year.
If your business is located or does any business in New York City, you may be subject to the NYC Unincorporated Business Tax. This tax mainly applies if you have at least $75,000 in gross revenues or $35,000 in profits. For more information, see New York City Taxes.
7. Open a bank account for your business.
It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
Other Notable Requirements for Maintaining an LLC in New York
New York LLCs must file a Biennial Statement with the Department of State every two years after your date of formation. The filing fee is $50.
New York requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in N.Y. Ltd. Liab. Co. Law § 1102 (link is to entire code, you need to click on the LLC section, then choose Article 11 and locate the specific provision).