Subject 590-7-19 LIMITED LIABILITY COMPANIES - RULES OF GENERAL APPLICABILITY
| (1) |
Active Limited Liability
Company. As used herein, the term "active limited liability company"
shall mean a limited liability company or foreign limited liability company
that is on file with the Secretary of State and is in compliance with the
filing requirements of the Code. |
| (2) |
Active Name Reservation. As
used herein, the term "active name reservation" shall mean a name reservation
issued by the Secretary of State that has not been redeemed and has not
expired. |
| (3) |
Annual
Registration. As used herein, the term "annual registration" shall mean
the filing required of each limited liability company as set forth in the
Code. |
| (4) |
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. |
| (5) |
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 to oversee the administration of the Code
as provided in O.C.G.A. Section
14-5-20. |
| (6) |
Articles of Organization. As
used herein, the term "articles of organization" or "articles" shall mean the
articles filed to form a limited liability company and such articles as amended
or restated. |
| (7) |
Automated
Database. As used herein, all references to the "automated database"
shall mean the database maintained on the electronic data processing
equipment. |
| (8) |
Certificate. As used herein, all references to "certificate" 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. "Certificate" 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 ownership interest in a corporation,
limited liability company, or other entity. |
| (9) |
Certificate of Organization.
As used herein, "Certificate of Organization" means the certificate issued by
the Secretary of State certifying that articles of organization have been filed
with the Secretary of State pursuant to the Code. |
| (10) |
Code. As used herein, all
citations to "the Code" or "Code" refer to the Georgia Limited Liability
Company Act and other statutes set forth in Title 14 of the Official Code of
Georgia Annotated, as amended. |
| (11) |
Commissioner. As used herein, all references to "Commissioner" or
"Corporation Commissioner" shall mean the Secretary of State of the State of
Georgia. |
| (12) |
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 business
entities to the public; |
| (b) |
Providing ministerial services to business entities to assist them in meeting
the filing requirements of state and federal laws and regulations pertaining to
such entities; or |
| (c) |
Maintaining a
commercial database available to the general public. |
|
| (13) |
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. |
| (14) |
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. |
| (15) |
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. |
| (16) |
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, or revoked. |
| (17) |
Expedited Review or Expedited
Processing. As used herein, the term "expedited review" or "expedited
processing" shall mean a special processing of filings prior to the processing
of routine filings. These filings, if approved for expedited treatment, will be
processed within the time frame of the requested level of expedited
service. |
| (18) |
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 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. |
| (19) |
Foreign Limited Liability Company. As used herein, the term
"foreign limited liability company" means a limited liability company organized
under the laws of a jurisdiction other than the State of Georgia. |
| (20) |
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 limited liability company
has filed its articles of organization and has been issued a document or
acknowledgement evidencing the formation of the limited liability
company. |
| (21) |
Limited
Liability Company. As used herein, the term "limited liability company"
or "domestic limited liability company" shall mean a limited liability company
formed under the provisions of Title 14 of the Official Code of Georgia
Annotated. |
| (22) |
Manager. As used herein, the term "manager" shall mean a person in
whom management is vested in accordance to the provisions of the
Code. |
| (23) |
Member. As
used herein, the term "member" shall mean a person who has been admitted to a
limited liability company and who has not ceased to be a member as provided in
the Code. |
| (24) |
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 limited liability company. |
| (25) |
Person. As used herein, all
references to "person" includes an individual and a business, legal, or
commercial 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 to the certificate of limited
partnership, 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" or
to the "Secretary" 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. |
The Assistant Corporation Commissioner is empowered to sign
all documents, make all decisions and perform all acts under the Code as is the
Secretary of State. This power may be exercised by the Assistant Corporation
Commissioner concurrently with the Secretary of State and all acts of the
Assistant Corporation Commissioner are of the same force and effect as such
acts would be if performed by the Secretary of State.
| (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 or she 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
heard 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. |
| (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) |
Proceedings 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. |
| (1) |
All applications, articles of
organization, 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
organization, 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 documents to the automated database maintained by the Commissioner, may
rely on such automated database for the purpose of providing information,
certifications, and the issuance of name certificates. |
| (4) |
The Commissioner will maintain active
records of 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 may, but is not required to, 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 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 data or the issuance of a name
certificate that is not distinguishable from another name on file with the
Commissioner 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. |
| (1) |
Every registration, annual registration, or other filing required or permitted
pursuant to the Code or any Rule or Regulation promulgated there under 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 Secretary of State. 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 Secretary of State 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 filing fees and penalties assessed
pursuant to the Code or the Rules and Regulations promulgated there under 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. |
| (4) |
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. |
| (5) |
The Secretary of State may determine the
imposition of any penalty provided for by the Code or the Rules and Regulations
promulgated there under. |
| (6) |
The
Secretary of State 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 Secretary of
State of such changes in the public access are a of the Division offices for a
minimum of thirty (30) days prior to such changes being effective. |
| (7) |
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. |
| (8) |
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. |
| (9) |
No filing will be
accepted by the Secretary of State with out the payment of any past due fees,
charges, or penalties assessed pursuant to the Code or the rules promulgated
thereunder. |
| (1) |
Checks or other
forms of payment returned to the Commissioner because of nonpayment and/or
charge backs of credit card payments 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 a "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
590-7-21-.04(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 entity 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
dissolve or revoke the entity and the grounds therefore. The notice of intent
to dissolve or revoke shall be mailed to the entity at the last known address
of its principal office or registered agent. A copy of the first notice may be
attached to the notice of intent to dissolve or revoke; and |
| 4. |
If payment is not received sixty (60)
calendar days from the date of the notice of intent to 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 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 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 dissolve or revoke the
entity and the grounds therefore. The notice of intent to dissolve or revoke
shall be mailed to the entity at the last known address of its principal office
or registered agent. A copy of the first notice may be attached to the notice
of intent to dissolve or revoke; and |
| 4. |
If payment is not received sixty (60)
calendar days from the date of the notice of intent to 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 entity 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 entity 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) |
Subsequent requests for services or
subsequently submitted filings from any entity or person that has submitted
payment which has been dishonored or charged back may be required to be
accompanied by cashier's check or United States Postal Service money
order. |
| (3) |
Payments tendered for
returned checks which are also dishonored shall be redeemed by cashier's check
or United States Postal Service money order only. |
| (4) |
The Commissioner may require the payment
of any service charge or bad check charge allowed by law in addition to the
amount owed as a result of any dishonored or charged back payment. |
| (5) |
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 or charged back. 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. |
| (1) |
Not with standing Rule 590-7-19-.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. |
| (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 the expedited
processing charges listed in the fee schedule published and maintained by the
Commissioner, in addition to the applicable filing or service fee. |
| (3) |
For filings and certificate requests
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 and certificate requests hand-delivered to the Division, the
expedited processing fee shall be paid by United States Postal Service money
order, certified check, cashier's check, or by a credit card accepted by the
Division. For filings and certificate requests 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 of a filing 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. |
| (1) |
Any limited liability company or foreign limited liability company that files
for termination, 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
document or transaction that is filed by a limited liability company or foreign
limited liability company after April 1 of a calendar year must be accompanied
by any currently or previously due annual registration. |
| (3) |
Articles of organization that are
submitted for filing by an entity converting to or electing to become a limited
liability company 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. |
