Annual Registration Deadline for Georgia Corporations and LLCs – May 31st, 2014

In Georgia, the annual filing deadline for a business entity’s “Annual Registration” with the Secretary of State is usually April 1st; however, for the past two years the Secretary of State has extended the deadline to May 31st.

The filing fee required with the filing of the Annual Registration will be $50 in most instances (i.e., if there are no prior unpaid fees), or $30.00 for nonprofit corporations.

We have included Instructions (click link) that may help guide you through the process of using their new website, which you can access here: Georgia Secretary of State Filing System.

Please note that if our Firm, or any one of our attorney’s, is currently listed as your registered agent, you should update the registered agent name to BCS Corporate Services, Inc.  This is our Firm’s subsidiary that now exclusively handles these services. This also applies to companies that currently list Penn Law Firm, P.C.

If you have any questions about Annual Registrations or have trouble with the registration process, please feel free to call our office.

If we currently represent you and you would like to request that we file the Annual Registration for you, please contact Stacy Pettefer by email at spettefer@briskinlaw.com and confirm at the same time:

(i)  the principal office address of your entity;

(ii) the name and address of your registered agent (if it is not Briskin, Cross & Sanford, LLC); and

(iii) in the case of a corporation (rather than an LLC), the names and addresses of the President/CEO, Treasurer/CFO, and Secretary.

Does My Company Need to File an Annual Registration?

Most U.S. states require registered businesses to maintain current information with that state’s office of the Secretary of State.

In Georgia, all Corporations must typically file an Annual Registration within 90 days of the filing of their Articles of Incorporation (unless the Articles were filed between October 1 and December 31, in which case the Corporation is required to file its Annual Registration the following year by the April 1st deadline).

LLCs are not required to file an Annual Registration during their first calendar year.

In short, this year (2014):

  • All LLCs and Corporations formed in (or prior to) 2013 must file an Annual Registration by May 31, 2014 (for Corporations incorporated after October 1, 2013 or LLCs organized at any time during 2013, this will be the first Annual Registration).
  • LLCs formed on or after January 1, 2014, will not have to complete an Annual Registration until April 1, 2015.

Late registrations are subject to penalty fees of $25.00, and failure to file or keep registrations current can lead to the Secretary of State changing your business’s status to “Administratively Dissolved.” An “Administratively Dissolved” corporation or company may not transact business in Georgia or use the Georgia court system but may be reinstated within a certain time period upon certain conditions and the payment of a fee (you should contact us at once if your company has been administratively dissolved).

Once you have filed your Annual Registration, the Secretary of State will immediately consider your entity to be in “Active/Compliant” status; however, although your Annual Registration is considered paid the minute you file and pay online, the online record may not update immediately and may take a day or longer to reflect your “Active/Compliant” status.

You should also file an additional Annual Registration at any time during the year (and pay the $50.00 fee) to update the information on record if it is no longer accurate; however, you cannot pay for future years, and filing more than once in a year will not change your obligation to file the following year.

Who Files the Annual Registration?

Although we serve as registered agent for many of our clients, the filing of the Annual Registration is the responsibility of the members, managers, officers, or directors of the business. This ensures that the primary purpose of the Annual Registration is served: to accurately update your business address and officers’ names and addresses and to confirm or appoint a new registered agent for the service of process.

These records are public and should only be updated by an authorized person. They may also be used in determining, among other things, which jurisdiction your business will be subject to in a court of law.

Notice

The Secretary of State typically notifies businesses of the Annual Registration deadline by sending a postcard to the business address listed in its records. Please note that some companies imitate these notices. Any notice not from the Secretary of State is a solicitation. Please feel free to contact us if you are uncertain about a notice you have received.

Other States

If you are registered to do business in more than one state, you may need to file an Annual Registration in each state in which you are registered. Also, if you are transacting business in a state with which you are not officially registered, please contact one of our attorneys, and we can assist you with coming into compliance and protecting your interests in foreign states.

About Briskin, Cross & Sanford, LLC

Briskin, Cross & Sanford, LLC is a Business, Commercial, and Technology firm that has built a full-service business practice representing privately held companies and their executives, including many start-up businesses and technology firms across North Metro Atlanta and the surrounding areas.

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Bulldozers and bad Investments

The bulldozers are back.  All around town I see buildings being knocked down, dirt lots being leveled, and all the hum and bang of construction getting back in swing.  In the first ten minutes of my commute alone there are three major construction sites underway.  The prospect of an upswing in real estate whets a lot of appetites and conjures visions of great sums of money to me made.

But how exactly to get in on the action?

Here’s one bright idea that became the subject of a recent Georgia Court of Appeals case: a corporation accepts money from multiple people to build up a pool of funds.  In exchange for their money, the corporation gives each person a promissory note (a promise to pay back the funds on terms specified in the note).  The corporation also takes loans from banks at favorable rates to build up the pool of funds.  It then uses the pooled funds to make loans to real estate developers at higher interest rates.

Money making money… sounds pretty simple, right?

This was the setup in Cushing v. Cohen, Case No. A13A0736 (decided July 16, 2013).  For many years it was quite successful, but ultimately, three large deals failed all at once and the investors wanted their money back… all of it.

The investors argued that the defendant violated Georgia law by selling them unregistered securities.  Indeed, under the Georgia Securities Act of 1973, OCGA § 10-5-1 et seq. (which has since been updated by the Georgia Uniform Securities Act of 2008), the purchaser of an unregistered (and non-exempt) security is entitled to a full refund of his or her investment. 

The defendant argued that it did not sell securities, but only gave promissory notes to investors.  The Court of Appeals disagreed and found that the investments were in fact sales of securities.

A security is defined as (a) an investment in a common venture with (b) a reasonable expectation of profit from the entrepreneurial or managerial efforts of someone else.  First, the Court of Appeals found that the loans were investments in a common venture because in order to reach a mandatory minimum amount required for a deal, the investors had to pool together.  Second, the court found that the profits earned by investors would be based on the defendant’s skill in selecting the deals, managing the loans, and salvaging capital if the borrowers defaulted.  As such, these were not straightforward pass-through loans, but in fact securities as defined by law. Indeed under Georgia law, if a security is not registered (or exempted), a purchaser of said security has the right to receive a return of their full investment.  Moreover, the Court found, under former OCGA § 10–5–14(c), “every executive officer of an entity that sells unregistered securities is liable jointly and severally.”

Oh, and did I mention…  the investors invested over $14 million.  That’s a heck of a refund.

The lesson from this case is that there are many creative ways to structure a business, but there are legal implications for each one of them.  Talk to a business planning attorney at Briskin, Cross & Sanford to make sure that as you build your business, you do so on solid legal ground.

Labor Department announces new overtime rule for home-health workers

The Wall Street Journal reports this morning that, as of Jan. 1, 2015, home-health workers (sometimes called personal care aides or certified nursing assistants) will no longer be exempt from the minimum-wage and overtime provisions of the Fair Labor Standards Act of 1938.  Labor Department Adds Protections for Home-Health-Care Workers – WSJ.com

In 1974, Congress extended FLSA protections to many domestic workers; however, aides providing “companionship services” for the elderly, sick, or disabled were, like teenage babysitters, specifically exempted from the protections provided by the law until now.  Even though such workers help to feed, dress, bathe, and provide essential care and services for their clients, often enabling those receiving such care to remain in their own homes rather than move into an institutional setting, because the workers provide those services in private homes and not, for example, in a hospital or nursing home, regulations before the current did change did not allow these workers to qualify for overtime pay.  In fact, in 2002, When Evelyn Coke sued her employer for overtime wages after working long hours, round the clock, and argued that the law was not intended to discriminate against her profession in this manner, the United States Supreme Court, on June 11, 2007, disagreed and said that, in fact, this was exactly what the law provided… although adding that the Department of Labor (DOL) could revisit the matter to bring home-care workers under the protections of the FLSA if it wished to do so. (Read the Court’s full opinion at Long Island Home Care v. Evelyn Coke.)

At last, this is what the DOL has done.

While the new ruling means that the two million or so home-health workers, a large number of whom are women and minorities, will now be paid time-and-a-half for time worked over 40 hours per week, the effect of the nominal pay raise will almost certainly have a broader impact on the home-care industry, projected to rise to 3.2 million workers by 2020: home-care companies, many of which run on slender profit margins, may cut hours and hire more aides to avoid paying overtime (and perhaps benefits) to remain competitive; base pay in the industry may fall to minimum wage in order to cut costs so that employees’ net wages do not increase when overtime is factored in; more and more workers may choose to become independent (and therefore unsupervised and difficult to regulate) agents so that they can work longer for less money; or the cost to the elderly, sick, and disabled may simply rise.

In light of the foregoing, there is a real question as to whether this fundamentally fair policy change will end up helping or hurting those it is intended to assist.  The Wall Street Journal quotes both Sen. Tom Harkin (D., Iowa), Chair of the Senate Health, Education, Labor and Pensions Committee and Rep. John Kline (R., Minn.), Chair of the House Education and the Workforce Committee to sum up the divide in Congress over the rule.  It may be, however, that both are right, and the policy shift is at the same time “a long overdue step to provide basic fairness for those who support and care for some of our most vulnerable citizens,” while at the same time it “will raise costs and limit access to in-home care for vulnerable Americans.”

It is a truism that the only constant in business is change itself.  If you are facing regulatory changes and need advice, the employment lawyers at Briskin, Cross & Sanford advise privately held companies, including home healthcare companies, on all aspects of their business.  Whether you are an established company dealing with the impact of new regulations or an entrepreneur starting out on your own, we will be happy to discuss solutions to the legal challenges your business faces.

Does your Georgia nonprofit corporation need a city or county business license?

While all for profit businesses in Georgia require a city or county business license and must pay an annual occupational tax, requirements vary greatly for nonprofit organizations.  Some cities and counties require registration; others do not.  Some locales exempt nonprofits with 501(c)(3) status from occupational tax (i.e., a business license fee) while others do not.

If your local city or county requires registration and you don’t register (or you register late), you may be subject to fines and penalties.  The following linked article by the Pro Bono Partnership of Atlanta provides useful information for most metro cities and counties: Does your Nonprofit Need a Business License?  If your city or county is not listed, call your local government offices or city hall and ask for the business license office.

If you are thinking about setting up a nonprofit corporation in Georgia and applying to the IRS for 501(c)(3) tax exempt status, the nonprofit attorneys at Briskin, Cross and Sanford can assist you.  We represent around 100 Georgia nonprofit corporations, and many of our attorneys sit on nonprofit boards, so whether your questions have to do with nonprofit governance, board development, bylaws, taxation, or some other matter, we can help.

A game changer for startups? Invest Georgia Exemption removes barrier to equity crowdfunding in Georgia

If the provisions of the Jumpstart Our Business Startups Act, a/k/a the JOBS Act, that were intended to ease restrictions on crowdfunding for small businesses sparked a rush of excitement nationwide, the Securities and Exchange Commission, ever cautious, has not exactly stoked that fire.  In fact, the SEC has still to grind out rules that will allow the law to go into effect and finally open the throttle of this economic engine nationwide. Rumored finally to be out this fall, many still say it will be 2014 before the SEC is ready to publish its final rules.

Undaunted, Georgia has leapt ahead of the pack with the Invest Georgia Exemption (IGE), allowing non-accredited residents of Georgia to invest in Georgia companies under certain conditions.  Using this exemption, Georgia companies can raise up to $1 million annually from non-accredited as well as accredited investors, and–in what may or may not be the game changer–can solicit investments in Georgia from Georgia-based residents, even if they are non-accredited (up to a limit of $10,000 in each Georgia issuer per investor).  See Equity Crowdfunding: Much Ado About Nothing?

The Secretary of State provides a synopsis of the rules here, and full Rules of the Georgia Commissioner of Securities can be found here.  You may still need an attorney to interpret them, but crowdfunding websites like Kickstarter will undoubtedly make the process easier very soon.  Although the debate continues as to how willing small investors will actually be to fund fledgling enterprise, one thing is certain: with the Invest Georgia Exemption, Georgia has taken another step forward in establishing itself as one of the most startup friendly states in the US and now offers some of the most fertile ground in the nation for investment-seeking tech and non-tech startups alike.