How to start an LLC in New York?

Are you considering setting up an LLC in New York? BetterLegal has developed a complete yet concise guide to help you through the process through our years of experience. The five critical steps to properly set up an LLC in New York in order are:

1. Prepare by choosing a Name and Registered Agent

2. File Articles of Organization with the State of New York

3. Apply for an EIN with the IRS

4. Obtain an Operating Agreement

5. Handle Ongoing New York Compliance and Maintenance

What are the benefits of setting up an LLC in New York?

An LLC (Limited Liability Company) is a fairly new business structure which combines the best aspects of two older structures. Corporations have existed since before the US existed, but require heavy maintenance such as quarterly meetings with officially recorded minutes, board approval and distribution of ownership, and more. On the other side of the spectrum is a sole proprietorship (or partnership if more than one person) that possesses tax benefits, but doesn't provide the owners with liability protection.

Combining the liability protection of a corporation and the tax benefits of a partnership, LLCs were created and slowly adopted by all 50 states between 1977-1998. This means that, as the owner of an LLC, you are not personally liable for any debts or obligations of the business. This can be a crucial safeguard for a sole proprietor, as transitioning to an LLC protects your personal assets, such as your home or savings, in the event that the business is sued or faces financial difficulties.

In addition to liability protection, an LLC helps establish credibility for your business. When you officially register your business as an LLC, you are signaling to the public that you are a professional and legitimate operation. This is especially important for a sole owner of a business as customers have more options than ever and are more likely to choose a company that feels more trustworthy. Any credibility you can build with your future customers is extremely important.

1. Choose a Name and Registered Agent in New York

The first step in setting up an LLC in New York is choosing a name for your business. The name you choose will represent your company and be used on all official documents, so it's essential to take the time to carefully consider your options.

It may seem tempting to have a very specialized name like "Irene's New York Ice Cream." However, if you're still iterating on your business offering or may expand, a somewhat generalized name may work in your favor. Don't fret too much as you can always change a New York LLC's name or use a nickname by filing a New York DBA. More on those post-formation options can be found under Step 5: Changes and Maintenance.

It's important to choose a name that is unique and not already in use by another business. You can use the New York Secretary of State's name check service to verify the availability of your desired LLC name. If you are having trouble accessing the name check service, you can also call the New York Secretary of State. Call NYS Department of State, Division of Corporations at (518) 473-2492.

When choosing a name for your LLC, it's important to keep the following guidelines in mind:

1. LLC name must include the following suffixes: Limited Liability Company, LLC, and L.L.C
2. LLC name must be distinguishable from the names of other LLCs, corporations, or limited partnerships on file
3. LLC name must not include prohibited or restricted names (List is here https://dos.ny.gov/system/files/documents/2018/10/restrictedwordsphrases.pdf). NOTE: some words or phrases require preapproval/consent from other state agencies. This must be obtained prior to LLC filing.

Name Reservation may be done using this form https://dos.ny.gov/system/files/documents/2019/01/1233-f.pdf

When choosing a name, it's also important to consider available domain names and social handles. One of our early customers owned austineventcollective.com as well as austineventcollective across every social platform. Unfortunately, someone in Texas already had a registered "Austin Event Collective LLC" and rejected her filing.

If you’re not ready to file, it is possible to reserve your New York LLC's name before officially registering your LLC with the New York Secretary of State. Please note that this is an additional and separate cost from officially filing your LLC and only holds the name, so you have to decide whether reserving a name for a few months is a better option than simply setting your Effective Start Date for the future (more on this in Step 2).

Choosing a Registered Agent

The next step in setting up an LLC in New York is choosing a registered agent. This person or entity will be responsible for receiving official mail from the State of New York and legal documents on behalf of your business.

The Registered Agent for your LLC in New York must have a physical address in New York. PO Box addresses aren’t allowed.

It's worth noting that this information is considered a public record and may be accessed by anyone. This means that anyone can view the names and addresses of the managers or members of your LLC by requesting a copy of your Articles of Organization from the New York Secretary of State. If you are concerned about privacy, you may want to consider using a third party to act as a registered agent for your LLC rather than using your own personal information. This step helps protect your operator's and owner's privacy and shield your personal information from public view.

There are countless options for Registered Agent Service, but we believe BetterLegal provides the best value. Click here to sign up.

Some additional guidelines in New York for Registered Agents: The registered agent may be an individual or a registered (RA) entity in NY.

2. Prepare and File the New York Articles of Organization

Once you have chosen a name and registered agent for your LLC, you'll need to file the Articles of Organization with the New York Secretary of State for a fee of $200 which is refundable and provide a digital, scanned, or wet signature of the organizer.

Filing Options

1. Online - Go to https://www.businessexpress.ny.gov/app/answers/cms/a_id/2443/kw/Limited%20Liability%20Company, create an account, and fill out the LLC formation documents in the portal.

2. By mail (documents needed to be listed below) (a) Articles of Organization (need to submit a written request to NY State of Department of State to ask for a copy of this document) (b) $200 filing fee (use Credit/Debit Card Authorization) - https://dos.ny.gov/system/files/documents/2018/10/1515-f.pdf (c) Expedited Fees (if applicable) (d) Mail to New York State Department of State, Division of Corporations, State Records and Uniform Commercial Code, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231

3. In-person (documents needed to be listed below)

4. Go to New York State Department of State, Division of Corporations, State Records and Uniform Commercial Code, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231 (Operating Hours are from 9:00 a.m. to 4:30 p.m., M to F)

5. Articles of Organization

6. By fax (documents needed to be listed below)

7. Articles of Organization

8. Credit Card/Debit Card Authorization Form

9. Fax to Division of Corporations, State Records and Uniform Commercial Code at (518) 474-1418

Payment Options

If filing online, Credit Card. If by mail: Check or money order.

Turnaround Time

The turnaround time for LLC formation in New York is advertised by the Secretary of State as one (1) to five (5) minutes from the time of submission. Keep in mind that this can take longer based on state examiner’s workload at the time of filing. BetterLegal's internal experience with New York is twenty-four (24) hours from the time of payment receipt, as long as the filing request was received during BetterLegal's operating hours (Monday to Friday from 9 a.m. to 7 p.m. EST). Expedited services are not available for New York LLC formation.

Please note that the Secretary of State's office in New York is closed on weekends and state holidays. The office is open from 8:00am to 5:00pm, Monday through Friday.

Also note, that you should not apply for an EIN (Step 3) until New York has approved and delivered your Articles of Organization in case your LLC's name is rejected.

Setting a Future Effective Date

If you want to set a future "start date" for your LLC, this the date when you submitted your LLC application or a future effective date that may not be more than sixty (60) days from the date of filing. in the State of New York.

Address Requirements

In New York, you're required to provide County Location, Service of Process Address, Filer's address If you want your address information to be private rather than public record, make sure your Registered Agent allows for all addresses. BetterLegal's $90/year service provides full privacy.

State's Mailing Address: The Mailing Address is Service of Process Address *LLC must designate the Secretary of State as its agent for service of process *Service of Process Address refers to the NY address to which SOS may mail a copy of any process received.

Manager Information

The Manager's Information section of your LLC's Articles of Organization may include the names and addresses of the managers or members of your LLC. Here is extra information New York will want to know about your Managers:

1. Management Type - Is your LLC manager-managed or member-managed?

2. Manager's Name - It may be an individual or non-individual manager. Members and managers may be individuals, partnerships, corporations, and any other type of legal entity. However, for non-individual managers, there must be an authorized representative to sign the LLC's articles of organization.

3. Manager's Address - This may be a business or post office box address, especially if privacy concerns are an issue. Note that a document on file with the secretary of state is a public record that is subject to public access and disclosure.

Receiving your documents

After the Articles of Organization has been filed and accepted by the New York Secretary of State, the LLC is officially formed. Here's what New York will provide back to you based on your method of submission: If filed online, documents will be available on state website via account. if filed by mail, approved documents will be mailed to the return address.

The official deliverables will include: the following documents:

1. Plain copy of the approved Articles of Organization
2. Copy of the filing receipt
3. Certified Copy of the Articles of Organization (if requested upon filing; https://dos.ny.gov/copies-corporation-or-business-entity-documents)"

You should keep a copy of the Articles of Organization for your records and use it to open a bank account, apply for business licenses, and conduct other business.

What if my filing is rejected?

If your filing is rejected, you'll receive information from the New York Secretary of State explaining the reason for the rejection. You can then make the necessary corrections and resubmit your documents. Regardless whether filed online or by mail, the document must be refiled.

Additional information

Fees are not charged unless approved

Rejection letter must be attached to refiling

3. Apply for an EIN from the IRS

Obtaining an Employer Identification Number (EIN) is a crucial step in starting an LLC in New York because banks require it to open a business bank account and the IRS requires it to pay taxes. So if you plan on making money, you'll need one. You don't need to employ anyone to need an EIN, it's simply a poor name choice by the IRS for what is essentially your LLC's Social Security Number or Tax ID.

An EIN is a unique nine-digit number assigned by the Internal Revenue Service (IRS) to identify a business for tax purposes and formatted as 12-3456789. EINs are free to get from the Internal Revenue Service's website, but can be tricky if you're not careful when answering their questions.

An EIN is a Tax ID for the federal government, it is not your Tax ID for the State of New York.

Here are some key points to keep in mind when obtaining an EIN for your LLC:

• A Sole Proprietorship's EIN cannot be transferred to your New York LLC.
• A Manager or Member must provide their personal information to link the EIN to your New York LLC.
• You cannot use an existing business' information for an EIN since a business doesn't have a Social Security Number.
• If you're not a US citizen that is in possession of an SSN, you will need to first obtain an ITIN before applying for an EIN through a paper filing.
• Once the EIN is obtained, it must be included on all federal tax returns and other documents that require the business's tax identification number.
• Keep a copy of the EIN confirmation letter for your records.

It's important to note that the EIN is for tax purposes only and does not give any rights or privileges to the holder.

The turnaround time for an EIN is instant and the fee is $0. However, the IRS’ website that generates EINs only works normal business hours EST, so it’s a good idea to plan ahead if getting this item is time sensitive. Also note, that you should not apply for an EIN until New York has approved and delivered your Articles of Organization in case your desired business name is rejected.

4. Obtain an Operating Agreement

An operating agreement is an important document for any LLC, as it lays out the rights and responsibilities of the members (owners), as well as the management structure of the LLC. It's not a mandatory document filed with the State of New York, but it's highly recommended to have notarized as it can help prevent disputes and misunderstandings among members later on.

While it's your preference to decide whether the New York LLC is manager-managed or member-managed, BetterLegal prefers to set up LLCs as manager-managed since an individual can be both a manager and a member. If a manager/member wants to become passive at a later stage of the company and the Operating Agreement is set up as member-managed, then it opens up a can of worms that could have been avoided by retaining the separation of duties from the beginning.

Here are some key points to keep in mind when creating an Operating Agreement for your LLC:

• Identify the members of the LLC and their respective ownership percentages.
• Outline the decision-making procedures, such as how many members must be present for a meeting to be considered quorate and how many votes are required to pass a resolution.
• Specify the process for admitting new members or removing existing members.
• Include information about how profits and losses will be distributed among members.
• Set out the procedures for amending the Operating Agreement and dissolving the New York LLC.

This is an important document for a New York Limited Liability Company and is too often overlooked or skimped on. If setting up a single-member LLC, be wary of professionals that charge hundreds or thousands of dollars for a single-page document. We have seen attorneys charge $3500 for a simple document providing zero ability for supporting multiple owners in the future. While you may start as a sole owner, that may not always be the case. It's best to plan ahead during these early phases before the grind of entrepreneurship sets in.

We've also seen instances where an individual helping with the business early on later claims ownership upon the business' later success. Never refer to someone paid or unpaid as a "partner" in public, especially if you don't have a signed and notarized Operating Agreement in place.

If you're setting up your New York LLC on your own and need an Operating Agreement, BetterLegal can provide one for a reasonable fee.

The Operating Agreement should be reviewed periodically and updated to ensure that it accurately reflects the current state of the New York LLC.

5. State Compliance and Maintenance

As an LLC in New York, you'll need to comply with certain New York regulations.

This includes, but not limited to:

• Obtaining any necessary licenses and permits
• Keeping records of your business's financial transactions
• Staying on top of New York's Biennial Statement
• Notifying the State of changes to your LLC

Commonly Asked Questions

Can I file an LLC in New York myself?

You can file an LLC in New York yourself by visiting the New York Secretary of State's website and submitting the necessary paperwork and fees. The process involves filling out the Articles of Organization and paying a filing fee. Additionally, you will need to choose a unique name for your LLC and appoint a registered agent for your business. Once you have completed the necessary steps and paid the filing fee, you can submit your application to the state for review and approval.

How much does it cost to file an LLC in New York?

The cost to file an LLC in New York is $200. This fee is for filing the Articles of Organization with the state and is refundable. You may also need to pay additional fees for obtaining a registered agent or for expediting the processing of your application.

Can you file an LLC in New York for free?

No, there is a fee to file an LLC in New York. The fee for filing an LLC is $200 and is refundable. You may also need to pay additional fees for obtaining a registered agent or for expediting the processing of your application.

How fast can you get an LLC in New York?

The turnaround time for LLC formation in New York is advertised by the Secretary of State as one (1) to five (5) minutes from the time of submission.. This turnaround can take longer based on state examiner’s workload at the time of filing.

Can I file for an LLC in New York Online?

Yes, you can file for an LLC in New York online through the New York Secretary of State's website. The process involves filling out the Articles of Organization, choosing a unique name for your LLC, and appointing a registered agent. Once you have completed the necessary steps and paid the filing fee, you can submit your application to the state for review and approval.

What is the minimum number of members in a New York LLC?

The minimum number of members in an LLC is one. An LLC can have any number of members, and the members can be individuals or other entities such as corporations or other LLCs.