A Foreign Corporation's Certificate of Authority in Kentucky

Kentucky does not use the word registration for this. KRS 14A.9-010 says a foreign entity shall not transact business in the Commonwealth until it has obtained a certificate of authority. A corporation is foreign if its charter came from a different state or a different country. It keeps its home charter and its identity. The certificate only gives it permission to operate here.

Applications go to the Division of Business Filings at the Secretary of State in Frankfort. One statute and one form serve corporations, nonprofit corporations, limited partnerships, LLCs and several other entity types, so on Form FBE you tick the box for a profit corporation.

The statute gives no definition. It gives examples of what does not count, and subsection (3) warns that the examples are not complete. KRS 14A.9-010(2) says that none of the following, by itself, amounts to transacting business:

• Taking part in a proceeding, whether bringing, defending or settling it
• Meeting as a board or as shareholders, or handling similar internal matters
• Keeping money in bank accounts
• Operating a share-transfer office for its own securities, or retaining trustees and depositaries for them
• Selling through independent contractors
• Soliciting orders (by mail, employees or agents) that are not contracts until accepted somewhere outside Kentucky
• Borrowing money, lending it, or taking mortgages and security interests
• Collecting debts or enforcing the security behind them
• Owning, without more, real or personal property
• Completing one isolated deal within thirty days when it is not one of a run of repeated, like deals
• Engaging in interstate commerce

Where the examples run out

Ownership of property, without more, is on the list. A corporation that only holds land or a building in Kentucky does not need a certificate for that reason alone. Add an office, local employees or regular sales, though, and you have moved beyond the examples. Another subsection leaves open which contacts can expose a corporation to service of process or taxation, so a tax question can come up even where no certificate is required. Bidding on Kentucky state contracts is a separate trigger: a certificate or statement is needed to be eligible for an award under Chapters 45A and 176. If the picture is unclear, put it to a Kentucky attorney.

Choose between FastTrack, the Secretary of State's online system, and a paper filing delivered or mailed to Frankfort with one exact or conformed copy. You can pay with cash, with a check written to the Kentucky State Treasurer, from a prepaid account held with the office, or by debit or credit card from an approved issuer. No card surcharge is stated. The fee is $90 on every route, and the fee schedule offers no expedite option. In the office's words, documents other than annual reports are usually handled the day they arrive, though up to three business days is possible. Once filed, the certificate is effective at that date and time, and a stamped postcard goes to the corporation's principal office.

Questions on the form

• The entity type and the corporation's name, identical to its home-state record
• A separate Kentucky name, but only when the home name cannot be used
• Place of organization, date of organization, and duration (blank means perpetual)
• The principal office's mailing address
• Street address of the Kentucky registered office, with the agent's name
• Names and business addresses of the secretary, the other principal officers and the directors
• A statement for professional service corporations, where it applies
• The officer's certification of valid existence at home

Signing falls to an officer or director, and a notary is not involved. The registered agent either signs the consent line or provides a separate written consent.

The application asks for no certificate of existence and no good standing certificate, and the filing carries no attachments. Item 10 of the form holds the signer's certification that, on the date of filing, the corporation is validly in existence in its home jurisdiction. KRS 14A.9-030(2) makes the act of signing the equivalent of that representation. Without a document to order, there is also no age limit to worry about.

You are the one vouching for it, so verify the corporation's status at home before an officer signs. If it has lapsed there, repair that first.

The form requires the name to be identical to the home-state name while also meeting Kentucky's endings for corporations: corporation, company or limited, or Corp., Inc., Co. or Ltd. A name that is not distinguishable from one already of record can be handled under KRS 14A.3-040, either by adding an identifier or by using a fictitious name, which is entered on line 3.

Who may be the agent

Kentucky narrows the field. KRS 14A.4-010 permits two kinds of agent: a Kentucky-resident individual, or an entity already qualified to transact business in Kentucky. In both cases the agent's business address has to be the registered office. The instructions on the form add that the company seeking authority shall not act as its own registered agent. A street address is required, so a PO Box does not work.

The agent must give written consent. There is one more duty on the corporation: it must give the agent the details of a natural person authorized to receive communications (name, business address, telephone). An agent who is not given a current contact may resign. The statute contains no business-hours rule. Notably, the Secretary of State directs its own correspondence to the principal office and not to the agent.

This requirement is easy to overlook. KRS 14A.2-040 has a copy of the application delivered to the clerk in the county of the registered office, and the form explains how to print one from the organization search on the Secretary of State's website. Under KRS 64.012 the clerk collects $33 where the filing runs five pages or fewer. It is a county charge and does not belong to the state fee.

Kentucky's recurring filing is the annual report. The window runs January 1 through June 30 each year, starting the year following authorization, and the fee is $15. Reporting items are the Kentucky agent and office, the principal office, and the corporation's officers and directors. Changing the agent or the registered office takes a statement of change at $10, and an amended certificate of authority at $40 is needed if the application's information changes.

When a report is late

Revocation can follow a late annual report, or two months without a registered office or agent. Kentucky first mails written notice to the principal place of business, and revocation can happen only when the ground is still uncorrected 60 days later. A corporation whose certificate has been revoked starts over with a new application. Revocation leaves the registered agent's own authority intact.

Withdrawing

A corporation that has stopped operating files Form WFE, a certificate of withdrawal, costing $40. The corporation states that it no longer transacts business here, surrenders its authority, cancels the agent's role, and designates the Secretary of State to be served in future proceedings. State tax accounts are managed with the Department of Revenue and fall outside these filings.

KRS 14A.9-020 spells out the price. Until it obtains a certificate, a foreign corporation transacting business in Kentucky cannot keep any proceeding going in the state's courts. A successor corporation, or the assignee of a claim that arose out of that business, is held to the same rule, and a judge may stay a suit while deciding whether a certificate was required.

On top of that, the statute makes the corporation liable for a $2 civil penalty on each day it operates unauthorized, collectable by the Secretary of State. There is no ceiling and no grace period, so a year adds up to $730. Two protections remain: the corporation's acts are still valid, and it can defend itself when sued.

Mainstay Filing's qualification service handles the Kentucky side for a corporation chartered elsewhere. It prepares Form FBE, sends it in to the state, and puts a Kentucky registered agent on it, with the first year included and $149 each year after. The owner supplies the corporation's details and formation information. Kentucky wants no certificate from the home state, so nothing has to be ordered. The county clerk copy, annual reports and tax filings stay with the corporation.

Today's checkout lines are on the Kentucky foreign qualification page. If all you need is the agent, see the Kentucky registered agent page. Mainstay Filing does the paperwork and acts as the agent; it is not a law firm, so whether an activity is transacting business is a question for your attorney.