Foreign Not-for-Profit Corporation Authority in New York

The Not-for-Profit Corporation Law (N-PCL) treats as foreign any corporation that another state or country chartered. Its home charter stays in force. What New York grants is permission to conduct activities in the state, and only those that a New York not-for-profit corporation could lawfully conduct and that the corporation is authorized to conduct at home (N-PCL 1301).

The vehicle is an application for authority under N-PCL 1304, and the Division of Corporations (Department of State, Albany) is the office that files it. The Department states plainly that it does not give opinions on which activities require qualification.

N-PCL 1301(a) says a foreign corporation shall not conduct activities in New York until it is authorized, and the law never defines the phrase. Subdivision (b) names six acts that are outside the requirement, and its wording keeps the door open to others:

• Maintaining or defending a proceeding, whether judicial, administrative or arbitral, and settling it or related claims
• Holding meetings of directors or members
• Maintaining bank accounts
• Keeping an office or agency only to transfer, exchange and register securities, or naming trustees or depositaries for them
• Granting funds
• Distributing information to members

Subdivision (c) adds that the list sets no standard for who can be served with process under the chapter or other New York statutes.

Programs, offices and property

Running a program here, opening an office, hiring staff, soliciting donors in the state or holding property is not named on the list. The Department of State offers no opinion on them. Its opinion of counsel on doing business looks at whether local contacts are permanent, continuous and regular, and how central the activity is to the organization's work. Where a nonprofit's New York presence is more than meetings, bank accounts and grants, a New York attorney should read the facts against the statute. Charitable solicitation registration with the state is a separate process that this filing does not cover.

The fee is $135. The Department's form is DOS-1555-f-a, mailed with the fee to Albany. Its instructions describe no online option. Checks, money orders and cards (through the Department's authorization form) are accepted. Rush handling is an extra: $25 buys 24 hours, $75 the same day, $150 two hours. The application sets out:

• The corporation's name, and a fictitious name for New York if its true name is unavailable
• Where and when it was incorporated
• Whether it would be a charitable or non-charitable corporation if formed in New York
• The purposes it will pursue in New York, the activities it proposes to conduct there, and that it is authorized to conduct them at home
• The New York county of its office, with no physical office required
• The Secretary of State as agent for process, with the mailing address for copies
• An optional registered agent
• A statement that it has done nothing in New York beyond the acts on the statutory list, or the State Tax Commission's consent in its place

Two items can slow the filing. First, the State Tax Commission. If the corporation has already been conducting activities in New York, it cannot make the no-activity statement, so it must obtain the Commission's consent and attach it. The Department of State directs filers to call the Commission to ask for it.

Second, the form's notes tell filers to review N-PCL 404, which governs consents and approvals that certain corporate purposes require, to see whether any must be attached. A corporation whose purposes include operating a child day care center must also send a certified copy of the application to the Office of Children and Family Services within 30 days after the filing is confirmed. Neither the form nor the statute adds more than that, and the filer should ask counsel whether the organization's purposes need a consent.

The home state supplies a document. Under N-PCL 1304(b), an authorized officer of the incorporating jurisdiction must certify that the corporation exists. The Department of State describes the accepted forms as a Certificate of Existence, of Good Standing or of Status, issued by whoever keeps corporate files at home, usually a Secretary of State.

No age limit appears in the statute, on the Department's page or on the form for the nonprofit filing. The Department's page for business corporations states a one-year limit, but that rule is not repeated for nonprofits, so read the current form before you order. Pricing is up to the home state. A certificate not in English needs the translator's sworn translation.

If the true name cannot be used in New York, N-PCL 1301(d) allows a fictitious name for use here. It cannot contain a corporate indicator. The corporation then uses that substitute name when it deals with state offices and carries on activities here. A written name availability search costs $5 per name, though the Department does not treat the result as approval.

Who receives process

Each application makes the Secretary of State the official recipient of process. A registered agent is a voluntary extra (N-PCL 305), and the candidates are a person residing or keeping a business address in New York, or a corporation of any kind that is domestic or authorized here. Since LLCs go unmentioned, ask Mainstay support if its agent is eligible for your nonprofit before you order. The statute states no office-hours rule.

Nothing in the N-PCL sections reviewed here calls for an annual or biennial report from a foreign not-for-profit corporation; the biennial statement guidance from the Department addresses business corporations and LLCs only. Updates come through filings when facts change:

• Amendment. A change to the corporate name, the fictitious name or the purposes in New York needs an amendment, which costs $30.
• Certificate of change. A new office county, registered agent or process address is handled by a certificate of change, which costs $20.
• Surrender. Leaving New York takes a certificate of surrender of authority, $30, with the State Tax Commission's consent attached (N-PCL 1311). A claim based on an obligation incurred before the surrender can still be served through the Secretary of State.

N-PCL 1313 covers it. A foreign corporation that conducts activities in New York with no authority is blocked from starting or keeping up a lawsuit or special proceeding here. That block remains until authority is granted and the fees, penalties and franchise taxes, if any, owed for each unauthorized year are settled. The bar applies to a successor in interest.

Contracts it made are not undone, the other side may still enforce them in court, and the corporation can defend itself against a suit. No per-day fine appears in the section.

Mainstay's qualification checkout skips nonprofits and takes only LLCs and for-profit corporations. The organization or its attorney prepares and files the New York application. Mainstay can serve as the optional registered agent at $149 yearly, a price that does not move on renewal. The agent's New York address goes into the application and becomes public.

Anything served on the agent, a summons for instance, is scanned on arrival and appears in your account without a fee. Mainstay also scans three official letters each year without charge. With another agent currently on record, Mainstay submits the substitution and charges the state's own fee. More is on the New York registered agent page. Mainstay does not practice law.