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What happens when a New York LLC misses its biennial statement

The New York Department of State says an LLC that does not file its biennial statement is shown in its records as past due, and any Certificate of Status will say so. The sources opened for this guide describe no administrative dissolution for the miss. The filing fee is $9, and a past due statement can still be filed online.

Last checked against the official sources listed on this page.

Published by Vermilion Vitez LLC, which sells LLC formation and resells registered-agent service fulfilled by Registered Agents Inc.

What the biennial statement is

The Department of State says domestic and foreign LLCs are required by Section 301(e) of the Limited Liability Company Law to file a biennial statement every two years. The statement sets out the address to which the New York Secretary of State should mail a copy of any process accepted on the LLC's behalf.

Section 301(e)(1) says the same: the LLC files, on forms the secretary of state prescribes, a statement of the post office address to which the secretary of state shall mail a copy of any process served on him or her, and that address supersedes any earlier one on file.

When it is due

Section 301(e)(1) ties the filing to the calendar month in which the articles of organization or application for authority were filed. The Department of State puts it the same way: the filing period is that calendar month, every two years.

The Department also says a statement should not be filed before the calendar month in which it is due. If one is filed early, the LLC will again be required to file in the month it is due. Where the Department has an email address on file, it says it sends a notice at the start of the month the statement is due.

What "past due" means

The Department of State says a corporation or LLC that fails to file its biennial statement will be reflected in its records as past due. Any Certificate of Status or status letter obtained from the Department will show that the LLC is past due, which the Department says may prevent the LLC from completing certain business transactions.

The Department also explains why the address matters. Lawsuits against an LLC often start with service on the Secretary of State, who must send a copy to the address on file. The Department says many companies move and forget to update it, and that filing a statement lets an LLC update the address and avoid the possibility of a default judgment.

Whether New York dissolves an LLC for a missed statement

The pages and statutes opened for this guide do not say that a New York LLC is administratively dissolved, revoked or proclaimed void for missing a biennial statement. The Department of State page names one consequence, the past due status. It does not mention dissolution for the miss.

The Department also says a domestic LLC remains active until it dissolves. Section 701(a) of the LLC Law lists the ways that happens: a date set in the articles or operating agreement, events the operating agreement names, a vote or written consent of the members, having no members left, or a court decree under section 702. A missed biennial statement is not on that list. Section 702 covers judicial dissolution on application by or for a member, in the supreme court, when it is not reasonably practicable to carry on the business as the articles or operating agreement provide.

How to file a past due statement

The Department of State says a past due biennial statement may still be filed online through its e-Statement Filing Service. The filer needs the exact entity name and its DOS ID number, which can be found in the Department's Corporation & Business Entity Database.

If the statement cannot be filed online, the Department says to contact the Statement Unit of the Division of Corporations in Albany to request a paper form, giving the exact name and the date of formation or the DOS ID number. The Department adds that at the time of filing, or any time after, the LLC may request a new Certificate of Status.

The fee

The Department of State states the fee for filing a biennial statement for a business corporation or LLC is $9, payable by credit or debit card (MasterCard, Visa and American Express), and says expedited handling is not available. The page lists no separate late fee for a past due statement.

The tax filing fee is a different thing

The Department of Taxation and Finance runs a separate annual charge on Form IT-204-LL. Its instructions say the form is for certain LLCs, including a domestic or foreign LLC treated as a partnership that must file a New York partnership return and has income, gain, loss or deduction from New York sources, and a disregarded-entity LLC with such income. The fee is based on New York source gross income for the preceding year. The instructions give $25 as the fee when there was no such income, and $25 for a disregarded-entity LLC with New York source items. The table runs from $25 up to $4,500.

The instructions say the form and fee are due by the 15th day of the third month after the close of the tax year, with no extension, and that failing to file or pay on time may bring penalties and interest. They do not give a rate. Section 301(e)(2) lets the Department of Taxation and Finance and the Secretary of State agree to let an LLC give that address annually on its filing-fee payment form instead, for taxable years beginning on or after January 1, 2016. The statute says the LLC must keep filing the biennial statement until it has successfully submitted a payment form with the required information.

Registered agents and the main site

Section 301(a) makes the Secretary of State the agent for service of process on a domestic LLC that designates the secretary in its articles. The sources opened here do not list a registered agent lapse as a ground for dissolving a New York LLC. Vermilion Vitez resells registered-agent service fulfilled by Registered Agents Inc. The main site's New York LLC annual report page covers the routine filing.

On vermilionvitez.com: New York LLC biennial statement: filed every two years in the formation month, $9 fee

Official sources

FAQ

Does New York dissolve an LLC that misses its biennial statement?

The Department of State page opened for this guide says only that the LLC will be reflected as past due in its records. It describes no dissolution for the miss, and it says a domestic LLC remains active until it dissolves.

What does it cost to file a past due biennial statement?

The Department of State says the fee for a biennial statement is $9. Its page lists no separate late fee, and says expedited handling is not available.

Can a past due New York LLC still file?

Yes. The Department of State says a past due biennial statement may still be filed online, or on a paper form requested from the Statement Unit, and that a new Certificate of Status can be requested at or after filing.

Where does the past due status show up?

The Department of State says any Certificate of Status or status letter it issues will show the LLC as past due, and that this may prevent the LLC from completing certain business transactions.

Is the Form IT-204-LL filing fee the same as the biennial statement?

No. Form IT-204-LL is a Department of Taxation and Finance filing fee, due by the 15th day of the third month after the tax year closes. The biennial statement goes to the Department of State and costs $9.

This page is general information about how a filing works, taken from the official sources listed above. It is not legal, tax, or financial advice, and it does not recommend any business structure. Confirm current forms, fees, and deadlines on the official source before you file.