Registering a Foreign Limited Partnership in North Dakota

Any limited partnership organized under another state's or country's law counts as foreign in North Dakota. NDCC 45-10.2-78 forbids it to transact business here, or to pick up a state-required license or permit, until the Secretary of State has put a North Dakota certificate of authority in its hands. A foreign partnership also cannot carry on a business that a North Dakota limited partnership is barred from carrying on.

Home-jurisdiction law keeps deciding the partners' rights against one another and their liability as partners, and North Dakota may not deny a certificate merely because that law differs from its own (45-10.2-76). Registration, then, leaves the partnership agreement alone. What it does is put the partnership on the state's records and give the Secretary of State an agent to contact.

The statute leaves the phrase undefined. The Secretary of State's partnership page offers examples of conduct that tends to qualify: a store, office or shop in the state, employees working here, a duty to collect sales tax, a need for a license or permit, or a state contract won by bidding. It recommends an attorney or business advisor when the answer is unclear.

NDCC 45-10.2-86 names activities that fall short of transacting business:

• Litigation, whether defending, starting or settling it
• Partner meetings and other internal matters
• Keeping accounts at financial institutions
• A transfer office, trustee or depository for the partnership's own securities
• Selling through independent contractors
• Soliciting orders that need out-of-state acceptance before they form contracts
• Taking on debt, mortgages or security interests
• Securing and chasing debts, enforcing collateral rights, and holding or caring for property taken back
• One deal wrapped up inside thirty days, outside any run of similar deals
• Interstate commerce

Earning property counts

Subsection 2 turns the usual rule around. Real estate or tangible assets in North Dakota that generate income count as transacting business, except property the list excludes. For a partnership formed to hold rentals, leased farmland or equipment, that is a clear trigger. The section adds that it is not the test for what exposes a foreign partnership to lawsuits, taxes or regulation under other North Dakota laws.

Foreign limited partnerships file through the FirstStop Portal. The Secretary of State publishes no numbered paper form for this filing and no processing time. NDCC 45-10.2-109 sets the fee at $110.

Contents of the application

• The partnership's name, or a substitute name where its own does not fit North Dakota's naming rules
• The jurisdiction whose law organizes it
• The general nature of the business it will conduct here
• Where its principal executive office sits, by street and mailing address
• The registered agent, with a North Dakota address if the agent is noncommercial
• Each general partner's addresses, both street and mailing
• Whether it has elected LLLP status

A general partner that is an entity may need its own registration with the Secretary of State, and the statute lists failure to keep that registration current among the grounds for revocation. A partnership that will trade under a name other than its own registers a fictitious partnership name, listed at $25 on the Secretary of State's page. Names should include limited partnership, LP or L.P., or, for an LLLP, the words limited liability limited partnership or the abbreviations LLLP and L.L.L.P.

The partnership has to send, with the application, an existence certificate or similar record signed by the filing officer where it was organized (45-10.2-79). Another provision calls the same document a good standing certificate or existence certificate.

The statute and the partnership page of the Secretary of State set no age limit for it. Because it has to be requested from the home state, allow time for that, and a recent one removes any question about dates.

NDCC 45-10.2-82 requires a continuous registered agent, and chapter 10-01.1 sets out the options. A commercial agent is on the Secretary of State's commercial list, so the filing does not have to give its address. A noncommercial agent can be a North Dakota resident. A corporation or LLC also qualifies if it is on the state's registry, in good standing and at a physical North Dakota address, which the filing must show.

The partnership itself is not allowed to be its agent, and the person or company chosen must consent. Under the statute the agent forwards what is served and keeps its own listing accurate, and nothing more. Changing the agent or address costs $10 as a statement of change. If a foreign partnership lacks an agent or registered office, the Secretary of State may begin revocation after mailing at least sixty days' notice.

The annual report must arrive before April 1, which makes March 31 the working deadline. For a new registrant the first report is due the following calendar year. The fee is $25. It reports the partnership and its home jurisdiction, who the agent is, where the registered office and principal executive office are, a brief account of what it does in North Dakota, and every general partner.

A missed report puts the partnership out of good standing and the Secretary of State sends notice, with a $20 late fee. If six months pass after the due date with no report and no fees, the right to transact business is forfeited. Reinstatement within a year takes the past-due report, its fees and a $100 reinstatement fee.

When something in the application changes, a general partner signs for an amended certificate, at $40. A partnership that is finished in North Dakota files a statement of withdrawal signed by a general partner, or a notice of cancellation or dissolution from home, for $25. Even after cancelling, the Secretary of State stays available as agent for claims from business done here.

NDCC 45-10.2-85 spells out the result when a foreign limited partnership transacts business without a certificate:

• It cannot start or pursue any action or proceeding in a North Dakota court
• It owes whatever fees the state would have charged had it been registered and current, and the attorney general collects them
• Fines can reach $5,000 for the partnership and $1,000 for each general partner or agent who authorizes or takes part
• In Burleigh County district court the attorney general can also obtain an injunction, which lasts until the amounts are paid and the partnership has complied

Several protections remain. Contracts stay valid, a defense in court is still available, and the statute shields partners from personal liability for partnership obligations merely because it operated without a certificate. Service of process on claims from its North Dakota business can be made on the Secretary of State.

A partnership registers without Mainstay's foreign qualification checkout, because that checkout only takes LLCs and for-profit corporations. A partner or an attorney completes the FirstStop application. Where Mainstay can help is the registered agent role: $149 a year, locked at that price for renewals.

Enter Mainstay's North Dakota address as the agent's address; it becomes part of the public record. If a summons is served on Mainstay for you, a scan is waiting in your account that same working day, free of charge. Each of the first three letters from a government office in a given year is scanned free as well. If the partnership has another agent on file, Mainstay prepares the switch and passes along the state's $10 fee at cost. See the North Dakota registered agent page. Mainstay is not a law firm.