Foreign Limited Partnership Registration in South Dakota

A limited partnership created under another state's law is foreign here. South Dakota's limited partnership chapter, SDCL 48-7, covers it in a short group of sections on foreign partnerships, and the verb it uses is "register". After the office accepts the application, it files the original and issues a certificate of registration, which goes back to whoever submitted the paperwork.

Registering does not change what the partnership is. Under section 48-7-901, three matters stay with home law: how the partnership is put together, how it governs itself and what its limited partners owe, and a difference between that law and South Dakota's own is no ground for rejecting the filing.

Section 48-7-902 sets the timing: registration comes ahead of any transacting of business in South Dakota. The chapter does not define that phrase, and unlike the statutes for corporations and LLPs, it offers no catalog of excluded activities. That means there is no statutory safe harbor to point to for a bank account, a lawsuit, a partner meeting or an isolated sale.

Working it out for your partnership

Start with what the partnership actually does in South Dakota. Staff here, a local office, regular dealings with South Dakota customers and ongoing operations are the kind of facts that point toward registering. A partnership whose only link is passive, such as holding an investment or taking a payment from a South Dakota buyer, is a closer call. The Secretary of State's FAQ says the office is not allowed to give legal advice on whether an out-of-state entity must register and recommends speaking with legal counsel. With no statutory list to lean on, that advice carries more weight for a limited partnership than for most entities.

One related rule appears right on the form. If a foreign corporation serves as a general partner of the partnership, that corporation has to comply with South Dakota's own foreign corporation registration laws.

The paperwork is a two-page registration form, dated December 2018. The state fee is $125, and the form prints the same figure. The Secretary of State's online system covers foreign LLCs, for-profit corporations and nonprofit corporations, so a foreign limited partnership files on paper: complete the form, have a general partner sign it, then post it, with a check, to the Pierre office.

What the form asks for

• The partnership's name and, if it plans to register under something different, that second name
• Its home jurisdiction and formation date
• The address of the office that its home law obliges it to keep (or its principal office when home law demands none)
• Its South Dakota registered agent
• Each general partner, with a business address
• The location of the limited partner list with each contribution, along with a pledge to keep that list until the registration is ended by cancellation or withdrawal

A general partner signs, and the signature carries the warning that knowingly false statements can bring a criminal penalty under SDCL 22-39-36.

South Dakota's registration form for a limited partnership does not call for any existence or good-standing document, and neither does section 48-7-902. That sets the partnership apart from the corporation, nonprofit and LLP forms, which each tell the filer to attach a one-page original from the home state. Nothing on the limited partnership form substitutes for it, such as a sworn statement of good standing, either.

Forms change, so look at the version of the registration form on the Secretary of State's site on the day you file. If the office updates it to add a home-state document, you will see it printed on the form's first page.

Under section 48-7-904, the partnership registers under any name that includes "limited partnership" or the initials "LP" or "L.P." and that a South Dakota limited partnership could lawfully use. It may differ from the name used at home.

Who can be the agent

The registration form gives three choices. A noncommercial agent is a South Dakota resident or a business entity registered in South Dakota. A commercial agent has registered with the Secretary of State as one, and the form asks for the number the office assigned to it. The third choice is an office holder, where the form names a position and the address of the business office of the person holding it.

The state says its agents need both a street location and a mailing address inside South Dakota. A company may serve. No hours of availability are written into the statute or the form.

The Secretary of State's FAQ exempts limited partnerships from annual reports, so there is no yearly filing to calendar with this office. Taxes, licenses and any industry rules are separate matters.

Corrections, amendments and cancellation

If a statement in the application was untrue when made, or the facts have since changed, section 48-7-905 requires a corrective certificate signed under oath by a general partner. An amended registration costs $125. A partnership that wants to leave files a certificate of cancellation, also $125, which the form says all general partners must sign. After a cancellation, process is served under SDCL 59-11-16 to 59-11-19.

A partnership that wants a different registered agent has to get the change on file with the Secretary of State, because the agent named on the registration is the one the public record shows. The schedule of fees has no separate line for a limited partnership's agent change, so confirm the cost with the office before sending it.

The consequences are in sections 48-7-907 and 48-7-908. Fines are absent from them.

• The partnership cannot bring or continue a lawsuit in a South Dakota court until it has registered.
• Contracts and acts survive the omission, and the partnership can still defend itself in court.
• Limited partners keep their limited status. Unregistered activity by itself does not make one personally liable as a general partner.
• The Secretary of State accepts service by default for any claim rooted in the South Dakota activity, as the partnership's process agent.
• The state's attorney general has standing to seek a court order stopping the partnership from carrying on.

The qualification checkout is not available to limited partnerships; it covers LLCs and business corporations. The partnership, or its lawyer, sends in the South Dakota registration. Mainstay Filing's part is the agent: $149 flat per year, and renewal costs the same.

Mainstay Filing's address is the one to list on the application, and it then shows in the state's records. A scan of any process served there lands in your online account on the day Mainstay Filing receives it, free of charge, and the first three official letters in a calendar year are scanned at no cost as well. If the partnership has some other agent listed today, Mainstay Filing drafts the replacement filing and passes the state's charge through unchanged. The South Dakota registered agent page explains the service. Mainstay Filing does not practice law, so a question about whether to register belongs with your own attorney.