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Subject 590-7-1 CORPORATIONS - RULES OF GENERAL APPLICABILITY

Rule 590-7-1-.01 Definitions

(1) Active Corporation. As used herein the term "active corporation" shall mean a corporation or foreign corporation that is on file with the Secretary of State and is in compliance with the filing requirements of the Code.
(2) Annual Registration. As used herein the term "annual registration" shall mean the filing required of each corporation and foreign corporation as set forth in the Code.
(3) Applicant. As used herein the term "applicant" shall mean any person making application to the Commissioner for any service provided or authorized by the Code.
(4) Assistant Corporation Commissioner. As used herein all references to the "Assistant Corporation Commissioner" shall mean the Assistant Corporation Commissioner appointed by the Secretary of State as the Director of the Corporations Division to oversee the administration of the Code as provided in O.C.G.A. Section 14-5-20.
(5) Automated Database. As used herein, all references to the "automated database" shall mean the database maintained on the electronic data processing equipment.
(6) Certificate. As used herein all references to "certificates" shall mean a form containing signatures of the Secretary of State and/or persons authorized by the Secretary of State, a date of filing and the printed or embossed seal of the State of Georgia. "Certificates" may also include the placing of a stamp on a document containing a time and date of filing and an acknowledgement of such filing. "Certificate" shall not mean share certificates or certificates which represent the shares of a corporation as provided for in O.C.G.A. Section 14-2-625.
(7) Certificate of Incorporation. As used herein all references to "Certificate of Incorporation" means the certificate issued by the Secretary of State certifying that articles of incorporation have been filed with the Secretary of State pursuant to the Code.
(8) Code. As used herein, all citations to "the Code" or "Code" refer to the Georgia Business Corporation Code, Georgia Nonprofit Corporation Code, Georgia Professional Corporation Act, Georgia Limited Liability Act, and other statutes set forth in Title 14 of the Official Code of Georgia Annotated, as amended.
(9) Commissioner. As used herein, all references to "Commissioner" or "Corporation Commissioner" shall mean the Secretary of State of the State of Georgia.
(10) Corporate Service Organization. As used herein a "corporate service organization" shall mean a person or entity, a substantial part of whose business is:
(a) Providing information concerning corporations to the public;
(b) Providing ministerial services to corporations to assist them in meeting the filing requirements of state and federal laws and regulations pertaining to such corporations; or
(c) Maintaining a commercial database available to the general public.
(11) Corporation. As used herein the term "corporation" or "domestic corporation" shall mean a corporation for profit or nonprofit, which is not a foreign corporation, organized under or subject to the provisions of Chapter 2 or Chapter 3 of Title 14 of the Code.
(12) Depository. As used herein, all references to "depository" shall mean a person, individual, organization, corporation or other entity designated by the Commissioner to accept filings, funds or other documents on his or her behalf and to perform certain ministerial services for the Corporations Division.
(13) Division. As used herein all references to "Division" shall mean the Corporations Division of the Office of the Secretary of State which is the division that is delegated the authority by the Secretary of State to administer the provisions of the Code.
(14) Entity. As used herein, the term "entity" includes corporation and foreign corporation, nonprofit corporation and foreign nonprofit corporation, professional corporation and foreign professional corporation, limited partnership and foreign limited partnership; foreign limited liability partnership, and limited liability company and foreign limited liability company.
(15) Existing Entity. As used herein, the term "existing entity" shall mean a domestic or foreign profit corporation, nonprofit corporation, professional corporation, limited partnership, limited liability partnership, limited liability limited partnership, or limited liability company that is on file with the Secretary of State, is in compliance with the filing requirements of the Code, and has not been dissolved, cancelled, terminated, voided, administratively dissolved, merged out of existence, withdrawn, revoked, or placed in an inactive status.
(16) Expedited Review or Expedited Processing. As used herein the term "expedited review" or "expedited processing" shall mean a special processing of eligible filings or service requests prior to the processing of routine filings or service requests. These filings or service requests, if approved for expedited treatment, will be processed within the time frame of the requested level of expedited service.
(17) Fee Schedule. As used herein the term "fee schedule" shall mean the schedule published and maintained by the Commissioner clearly setting forth the fees and charges for documents and services provided by the Commissioner and the Division. The fees may only be changed by an amendment to the Code. Service charges may only be changed by the posting by the Commissioner of such changes in the public access area of the Division offices for a minimum of thirty (30) days prior to such change being effective.
(18) Foreign Corporation. As used herein the term "foreign corporation" shall mean a corporation for profit or nonprofit organized under a law other than the law of the state of Georgia.
(19) Home State or Home Jurisdiction. As used herein all references to a "home state" or "home jurisdiction" shall mean the state or country where a corporation has filed its articles of incorporation and has been issued a certificate of incorporation or such other document or acknowledgement evidencing the incorporation.
(20) Individual. As used herein the term "individual" means a natural person.
(21) Legal Name. As used herein the term "legal name" shall mean:
(a) For an individual, the legal name consists of the individual's first name and last name (or surname), without use of initials or nicknames, as it appears on the individual's birth certificate unless the individual's name has changed based on certain events, such as a marriage or a valid court order for a name change. Middle name(s), middle name initial(s), and/or suffixes may, but are not required to, be included in an individual's legal name.
(b) For foreign-born individuals, the legal name consists of the individual's name shown on his or her immigration document.
(c) For entities, the legal name consists of the entity's official name as it appears on the entity's formation document filed with the entity's home state, or any valid amendment thereof.
(22) Name. All references to the "name" of an individual in the Code and on the forms, applications, and other documents of the Division shall mean an individual's legal name as defined herein.
(23) Name Certificate. As used herein the term "name certificate" shall mean the document or confirmation number issued by the Commissioner establishing the availability of a name for use by a corporation.
(24) Officer. As used herein, the term "officer" shall mean an individual duly elected or appointed pursuant to the provisions of the Code to fill one or more offices of a corporation.
(25) Person. As used herein all references to "person" includes an individual and entity as defined by the Code.
(26) Pickup. As used herein the term "pickup" shall mean a request by the applicant to pick up processed documents from the Office of the Secretary of State rather than having documents sent by United States mail, electronic mail, or other commercial delivery service.
(27) Proposed Entity Name. As used herein, the term "proposed entity name" shall mean:
(a) The name of an entity contained in articles of incorporation, articles of organization, certificate of limited partnership, application for certificate of authority, or an application for name reservation with the Secretary of State; or
(b) The name of an entity contained in articles of amendment, restated articles of incorporation, restated articles of organization, certificate of amendment, articles or certificate of merger, articles or certificate of share exchange, certificate of conversion, application for reinstatement, application for reinstatement or reactivation from inactive status, or application for amended certificate of authority submitted to the Secretary of State for filing, if that name is different than the existing name of the entity or foreign entity on file and of record with the Secretary of State.
(28) Rule. As used herein all references to "Rule" or "the Rules" shall mean the rules as they appear in the "Official Compilation, Rules and Regulations of the State of Georgia" as compiled and printed by the Secretary of State pursuant to the Georgia Administrative Procedure Act, O.C.G.A. §§ 50-13-1et seq.
(29) Secretary of State. As used herein all references to the "Secretary of State" shall mean the Secretary of State of the State of Georgia. The terms "Commissioner" and "Secretary of State" shall both refer to the Secretary of State of the State of Georgia.
(30) Sign or Signature. As used herein all references to "Sign" or "Signature" includes any manual, facsimile, conformed, or electronic signature.
(31) Year. As used herein, the term "year" shall mean a calendar year. A calendar year is the one-year period that begins on January 1 and ends on December 31.

Rule 590-7-1-.02 Delegation to Assistant Corporation Commissioner

The Assistant Corporation Commissioner is empowered to sign all documents, make all decisions and perform all acts under the Code as is the Corporation Commissioner. This power may be exercised by the Assistant Corporation Commissioner concurrently with the Corporation Commissioner and all acts of the Assistant Corporation Commissioner are of the same force and effect as such acts would be if performed by the Corporation Commissioner.

Rule 590-7-1-.03 Administrative Declaratory Rulings; Informal Interpretations

(1) Declaratory Rulings.
(a) Availability. Any person whose legal rights will be interfered with or impaired by the application by the Commissioner of any statutory provision or any rule or order of the Commissioner may petition the Commissioner and request a declaratory ruling therein. The Commissioner will not render advisory opinions, resolve questions which have become moot or are abstract, hypothetical, or otherwise act hereunder except with respect to such actual controversies or other cases upon which a superior court would be required to act under the Georgia declaratory judgment statutes as construed by the appellate courts of Georgia.
(b) Form of Petition. Each such petition shall be filed with the Commissioner in writing and shall state:
1. the name and mailing address of the petitioner;
2. the full text of the statute, rule, or order upon which a ruling is requested;
3. a paragraphed statement of all pertinent and existing facts necessary to a determination of the applicability of the quoted statute or rule;
4. the petitioner's contention, if any, as to the aforesaid applicability with citation of legal authorities, if any, which authorize, support, or require a decision in accordance therewith; and
5. a statement setting forth in detail the petitioner's interest in the matter and why and how the petitioner is uncertain or insecure with respect to his rights. The petition shall be verified under oath by, or in proper behalf of, the petitioner.
(c) Proceedings on Petition. If the Commissioner shall determine that a decision can be rendered on the face of the petition without further proceedings, he shall render a summary decision thereon. Otherwise, all parties known by the Commissioner to have a legal interest in the matter shall be notified and given an opportunity to be head in an informal hearing.
(2) Informal Interpretations. Any request presented in any manner other than in accordance with the provisions of paragraph (1) above shall not be deemed to be filed as a petition for declaratory ruling and shall be dealt with in any manner that the Commissioner may deem appropriate.

Rule 590-7-1-.04 Petition for Adoption of Rules

(1) Form of petition. Each petition for adoption of rules made pursuant to the Georgia Administrative Procedure Act shall be filed with the Commissioner in writing and shall state:
(a) The name and mailing address of the petitioner;
(b) The full text of the rule requested to be amended or repealed, or the full text of the rule desired to be promulgated;
(c) A paragraphed statement of the reasons such rule should be amended, repealed or promulgated, including a statement of all pertinent existing facts as to petitioner's interest in the matter; and;
(d) Citations of legal authorities, if any, which authorize, support, or require the action requested by petitioner. The petition should be verified under oath by, or on behalf of, the petitioner.
(2) Proceeding on petition. Upon receipt of the petition, the Commissioner shall decide upon the action to be taken. Within sixty (60) days after receipt of the petition, the Commissioner shall inform the petitioner by mail of the decision reached and shall either decline to take the action requested, stating his reasons for so declining, or shall initiate rule-making or rule-changing proceedings in accordance with the Georgia Administrative Procedure Act.

Rule 590-7-1-.05 Repealed

Rule 590-7-1-.06 Records

(1) All applications, articles of incorporations, dissolutions, amendments, annual registrations, records, and other documents filed with the Commissioner pursuant to the various provisions of the Code shall be printed or typed on white paper with blue or black ink only, and said paper shall not exceed letter size measurements of 8 1/2" by 11".
(2) All applications, articles of incorporations, dissolutions, amendments, annual registrations, records, and other documents filed with the Commissioner pursuant to the various provisions of the Code may be maintained in original form or by means of microfilm, microfiche, microphotographic reproduction, photographic reproduction, word processing, computerization, optical disk, electronic disk or diskette storage or other acceptable reproductive methods.
(3) The Commissioner, after verification of the corporate documents to the automated database maintained by the Commissioner, may rely on such automated database for the purpose of providing corporate information, certifications, and the issuance of corporate name certificates.
(4) The Commissioner will maintain active records of corporate annual registrations for a period of five (5) years and will provide information from, and copies of, such annual registrations during such period. The Commissioner shall not provide information from or copies of annual registrations on file for more than five (5) years.
(5) The Commissioner shall maintain the integrity of the automated database in accordance with standards prescribed by the Georgia Department of Administrative Services (DOAS) and Georgia laws. In the event of a malfunction on the electronic equipment, or errors in the software programs, the Commissioner shall not be liable for the release of incorrect corporate data or the issuance of a corporate name certificate that is not distinguishable from another corporation filed pursuant to the Code.
(6) Any photographic, microphotographic, optical disk, or computer reproduction of any original writing or record filed with or maintained by the Commissioner or by a Records Depository approved by the Commissioner shall be deemed to have been made in the regular course of business. Such reproduction shall be subject to certification pursuant to the Code.

Rule 590-7-1-.07 Repealed

Rule 590-7-1-.08 Fees, Penalties, and Charges

(1) Every registration, annual registration, or other filing required or permitted pursuant to the Code or any Rule or Regulation promulgated thereunder shall be accompanied by the required fee, penalty fee or funds as required by the Code. All filing fees shall be immediately docketed into the automated database by the staff of the Commissioner. Docketing of the filing fees shall be for accounting and document control only and shall not constitute acceptance of the filing nor shall it imply that the applicant has met the filing requirements of the Code.
(2) No registration, annual registration, or other filing required pursuant to the Code or any Rule shall be considered officially received by the Commissioner unless said documents are accompanied by the required fee or funds. Said fee or funds shall be received by the Commissioner or by a person designated by him.
(3) All fees and penalties are nonrefundable unless specifically authorized by the Commissioner or Assistant Corporation Commissioner and a written request for refund is received from the applicant.
(4) All fees and penalties are nontransferable unless specifically authorized by the Commissioner or Assistant Corporation Commissioner.
(5) All filing fees and penalties assessed pursuant to the Code or the Rules and Regulations promulgated thereunder shall not be deemed to be paid unless payment is made in United States currency, certified funds, or until any check given for such fees or penalties has been paid by the financial institution upon which such check is drawn.
(6) Fees paid by check or money order shall have the name of the proposed entity or, in the case of a filed entity, the filed entity's name or control number written on it.
(7) The Commissioner may determine the imposition of any penalty provided for by the Code or the Rules and Regulations promulgated thereunder.
(8) The Commissioner shall publish a comprehensive list of filing fees, minimum service charges, service charges, penalties and other fees collected by the staff. Service charges may only be changed by the posting by the Commissioner of such changes in the public access area of the Division offices for a minimum of thirty (30) days prior to such changes being effective.
(9) All invoices for certificates, copies, or other charges are due immediately upon receipt. Failure to pay the invoice may result in the invoice being referred for collection and in any future payment being accepted only if submitted by cashier's check or United States Postal Service money order.
(10) The Secretary of State may impose service charges in order for persons to have the ability to make electronic filings into, the automated database. Such charges shall be posted on the fee schedule prepared and maintained by the Secretary of State.
(11) The Secretary of State may impose service charges for the filing of documents in paper format. Such charges shall be posted on the fee schedule prepared and maintained by the Secretary of State.
(12) No filing will be accepted by the Secretary of State without the payment of any past due fees, service charges, or penalties assessed pursuant to the Code or the rules promulgated thereunder.

Rule 590-7-1-.09 Expedited Processing

(1) Counter pickups of documents and certificates shall not be allowed unless expedited processing is requested and approved.
(2) Expedited processing of filings and the issuance of certificates will be provided if the applicant provides the Commissioner a request for expedited processing and the request is accompanied by the payment of charges listed in the fee schedule published and maintained by the Commissioner, in addition to the applicable filing or service fee.
(3) For filings submitted to the Division by mail, the expedited processing fee shall be paid by United States Postal Service money order, certified check, or cashier's check. For filings hand-delivered to the Division, the expedited processing fee shall be paid by United States Postal Service money order, certified check, or cashier's check, or by a credit card accepted by the Division. For filings electronically transmitted to the Division, the expedited processing fee shall be paid by a credit card accepted by the Division.
(4) The Commissioner will provide expedited processing if he or she determines the request to be valid and in proper form. An expedited request will be considered to have been completed when the filing has been accepted or rejected for filing and supporting documentation has been forwarded to the filer. An expedited request for the issuance of certificates will be considered to have been completed when the certificate request is processed or rejected and supporting documentation has been forwarded to the applicant.

Rule 590-7-1-.10 Dishonored Payments

(1) Checks or other forms of payment returned to the Commissioner because of nonpayment and/or charge backs of credit card or debit card payments (hereinafter referred to as the "dishonored" or "dishonored payment") shall be processed according to the following procedures:
(a) Pending Filings.
1. The filing and/or the entity for which the filing was made shall be placed in "pending," "hold," or similar status and the nonpayment of fees noted upon the records of the Secretary of State;
2. A notice of nonpayment demanding immediate payment shall be issued to the entity or person who submitted the payment;
3. If payment is not received within sixty (60) calendar days from the date of notice of nonpayment, the filing will be deemed abandoned as provided in Rule 590-7-3-.06(3); and
4. If the filing is deemed abandoned, all records pertaining to the filing will be destroyed and a new filing, including the payment of filing fees, shall be required. Any filing fees submitted with the new filing may be required to be paid by cashier's check or United States Postal Service money order.
(b) Completed Filings.
1. The entity for which the filing was made shall be deemed to be not in good standing by the Secretary of State. The records of the entity maintained by the Secretary of State shall be marked to show such status and to show the nonpayment of fees;
2. A notice of nonpayment demanding immediate payment and stating that possible grounds exist for administrative dissolution or revocation shall be issued to the corporation or person who submitted payment;
3. If payment is not received within sixty (60) calendar days from the date of the notice of nonpayment, written notice shall be issued stating the Commissioner's intent to administratively dissolve or revoke the entity and the grounds therefore. A copy of the notice of nonpayment may be attached to the notice of intent to administratively dissolve or revoke and mailed to the entity at the last known address of its principal office or registered agent; and
4. If payment is not received sixty (60) calendar days from the date of the notice of intent to administratively dissolve or revoke, the entity shall be administratively dissolved or revoked in accordance with Title 14 of the Official Code of Georgia Annotated.
(c) Annual Registration.
1. The entity for which the annual registration was submitted shall be deemed to be not in good standing by the Secretary of State. The records shall be marked to show such status and to show nonpayment of fees due;
2. A notice of nonpayment demanding immediate payment and stating that possible grounds exist for administrative dissolution or revocation shall be issued to the entity or person who submitted payment; and
3. If payment is not received within sixty (60) calendar days from the date of the notice of nonpayment, written notice shall be issued stating the Commissioner's intent to administratively dissolve or revoke the corporation and the grounds therefore. A copy of the notice of nonpayment may be attached to the notice of intent to administratively dissolve or revoke and mailed to the corporation at the last known address of its principal office or registered agent; and
4. If payment is not received sixty (60) calendar days from the date of the notice of intent to administratively dissolve or revoke, the entity shall be administratively dissolved or revoked in accordance with Title 14 of the Official Code of Georgia Annotated.
(d) Services.
1. The records of the Secretary of State for the corporation or person which requested the services shall be marked to reflect nonpayment for the services performed;
2. A notice of nonpayment demanding immediate payment shall be issued to the corporation or person who submitted payment;
3. If payment is not received within thirty (30) calendar days from the date of notice of nonpayment, a second notice will be issued to the entity or person who requested the service. The notice shall state that if payment is not made immediately, all payments for services, fees and filings submitted by the entity or person shall be required to be made by cashier's check or United States Postal Service money order.
(2) Payments tendered for returned checks which are also dishonored shall be redeemed by cashier's check or United States Postal Service money order only. Subsequent requests for services or subsequently submitted filings shall be accompanied by cashier's check or United States Postal Service money order.
(3) The Commissioner may require the payment of any service charge in addition to the amount owed as a result of any dishonored payment. Such service charge shall be published in the fee schedule maintained by the Commissioner.
(4) The records of the Secretary of State may be marked to show nonpayment status for any entity or person that has submitted payment which has been dishonored. The issuance of a Certificate of Existence or a statement of good standing regarding the entity may be denied by the Commissioner until full payment has been made.

Rule 590-7-1-.11 Compliance with Filing Requirements

(1) Any corporation or foreign corporation that files for voluntary dissolution, withdrawal, or merger out of existence between January 1 and April 1 of any year must file an annual registration for that calendar year and pay the required fees.
(2) Any corporate document or transaction that is filed after April 1 of a calendar year must be accompanied by any currently or previously due annual registration, including the initial annual registration required by law to be filed by newly formed corporations.
(3) A corporate filing made by a Georgia corporation within 90 days of its date of incorporation must have an initial annual registration on file, as required by the Code, before the corporate filing will be processed.
(4) Articles of incorporation that are submitted for filing by an entity converting to or electing to become a corporation shall not be accepted by the Secretary of State unless said entity has paid all fees and penalties required by the Code and the Rules, including annual registration fees.

Rule 590-7-1-.12 Nonprofit Corporation Filings

(1) All filings submitted by any domestic or foreign nonprofit corporation pursuant to the Georgia Nonprofit Corporation Code shall be received and processed in accordance with the procedures established by the Secretary of State regarding filings made pursuant to the Georgia Business Corporation Code unless the Georgia Nonprofit Corporation Code shall require otherwise.
(2) Any documents submitted for filing with the Secretary of State pursuant to the Georgia Nonprofit Corporation Code which require prior approval or notice of the corporate action to be given by the nonprofit corporation to the Attorney General or any other person may contain a statement that such prior notice or approval has been given. If such a statement is not included, the nonprofit corporation shall file a written statement with the Secretary of State which states whether or not prior notice or approval was required to be given under the Code and whether said notice or approval was in fact given.

Rule 590-7-1-.13 Refunds

(1) Notwithstanding Rule 590-7-1-.01, and for purposes of this Rule only, an "applicant" shall mean the party who submits a written request for refund to the Commissioner and is the original payor, the proper legal entity of the original payor, or its legally authorized representative.
(2) An applicant shall be refunded all fees in an amount which has been determined to have been paid in error, less deduction of an amount as otherwise provided in this Rule. Payment of any refund amount shall be made interest free. Each request shall be made in writing and submitted in a manner as required by the Commissioner and shall contain such information as the Commissioner may deem as reasonably necessary, which may include applicant's name, date of request, applicant's contact information, reason for refund, original amount paid and signature. All requests for refund must be made by the applicant or an authorized representative. It is the sole responsibility of the applicant to provide all documentation supporting the request for refund.
(3) For request for refund to be valid, it must be complete with all supporting documents and submitted within six (6) months of the date of the original payment. No request for refund that is incomplete with missing information or supporting documentation or that is made beyond the expiration of six (6) months following the date of the original payment shall be processed.
(4) All completed refund requests shall be processed by the Commissioner, or his or her delegate, and shall be submitted for review and payment as soon as reasonably possible following receipt of the completed request. Notwithstanding the foregoing, the Commissioner may initiate the refund process in the event that a billing error is discovered in absence of an applicant's request for refund.
(5) Upon review of the request for refund and supporting documentation, the Commissioner may authorize payment of the requested amount, refund a lesser amount, or reject the request if the facts of the matter support such a conclusion.
(6) In the event there is an outstanding balance of unpaid fees owed by the applicant, the Commissioner is authorized to offset any refund amounts as payment for such unpaid fees and any costs.
(7) All refunds must be made payable in the name of the original applicant.
(8) Once a refund is paid to an applicant, the matter shall be considered final and the Commissioner shall not accept any new request for refund relating to the same matter.

Rule 590-7-1-.14 Registered Office and Registered Agent

(1) Registered Office. The registered office must be a street address in Georgia where service of process may be served on the registered agent. The registered office address may not be a post office box, post office drawer, mail drop, or rural route, unless the address is also accompanied by a physical address of the exact location of the registered office where the registered agent can be personally served with process. The registered office may, but need not be, the corporation's principal office or its place of business.
(2) Registered Agent. The legal name of the registered agent at the registered office of the corporation shall be provided to the Secretary of State. An entity may not serve as its own registered agent.
(3) Unauthorized Appointment of Registered Agent. A person listed on the records of the Secretary of State as the registered agent for an entity without that person's consent or authorization may file a Notice of Unauthorized Appointment of Registered Agent with the Secretary of State on a form provided by the Division. There is no fee for filing a Notice of Unauthorized Appointment of Registered Agent. If the Notice of Unauthorized Appointment of Registered Agent is accepted for filing by the Secretary of State, then the filed notice will be added to records of the entity maintained by the Secretary of State, the entity's registered office and registered agent information maintained on the Division's automated database will be updated accordingly, and the Division may send notification of the filing to the entity by mail or electronic methods, such as email.