How to Form a S Corporation for an Indie Film in California or New York

"My accountant has advised me to form a S-corporation"

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How to Form a S Corporation for an Indie Film in California or New York

Here’s everything you need to know to form a S-Corporation.

Step One. Select the Jurisdiction

For a film project in California or New York, the corporation would be formed in Delaware, California, New York.  If the project and all of the filmmakers are in California or New York, it makes sense to form the corporation where everyone is located.  On the other hand, if the project or the filmmakers are bicoastal (or have any aspiration to be), Delaware is a better option.

Resource: Why Delaware is the best Jurisdiction for Actors and Creatives

Step Two Select a Corporate Name

The next step is to determine whether the corporate name is available.  Each state has an option to formally check for name availability and reserve a corporate name, but the following resources are available to do a very basic name search.

Delaware Name Search.  In Delaware, search corporate name availability by clicking here.

New York Name Search. In New York, visit the New York Department of State.  To search the name click on Domestic Business Corporation (For Profit) and Domestic Limited Liability Company.

California Name Search.  In California, search corporate name availability by clicking here.

Step Three.   Prepare and File Certificate of Incorporation

A corporation is legal created by filing Articles of Incorporation with the Secretary of State.  In Delaware, a corporation is created by filing a Certificate of Incorporation.  The Articles contain basic information (e.g., the corporate name, principal place of business, resident agent. number of authorized shares of stock, etc.).  The Articles may also include optional provisions, most notably a provision that limits the liability of officers and directors to the fullest extent permitted by law.

Resource (Template): form of Certificate of Incorporation (DE)

Resource: Filing Articles of Incorporation Online in California is a Good Bet for Loan Out Corporations Despite Being Unable to Include Optional Provisions

Step Four.  Obtain an EIN

Once the Certificate of Formation has been filed,  obtain an Employer Identification Number (EIN) by completing the IRS Form SS-4 and obtaining the EIN online. by clicking here.

Resource: Why we need to file Articles Before Obtaining an EIN

Step Five.  Prepare Corporate Bylaws

The Bylaws of the corporation is the playbook for how the corporation operates.  It is a private document (not filed with the State) that includes provisions that establish the number of corporate directors, the roles of officers and directors, among other things.

Resource (Template): form of Bylaws (DE)

Step Six.  Appoint Directors and Hold Organizational Meeting

The Organizational Minutes document the first meeting of the corporation where important initial business takes place (e.g., approval of the form of Bylaws, election of the initial Directors and Officers, approval of the issuance of shares of stock, etc.).

Resource (Template): form of Organizational Minutes (DE)

Step Seven.  Issue Stock

Stock certificates are issued to the shareholders of the corporation that reflect their equity ownership of the corporation.

Resource (Template): form of Share Certificate

Step Eight.  Make an S-Election

If the corporation is going to be taxed as a S-Corporation, an S-election must be filed by filing IRS Form 2553 with the Internal Revenue Service.

Resource (Template): form of filed S Election (Filed)

Resource: S Corporation Election Date for new corporations

Resource: Electing S Corporation Status in New York

Step Nine.  Qualify to Do Business

If the corporation is formed in Delaware and intends to do business in California or New York, the corporation must qualify to do business.

Resource (Template): form of Qualification (CA)

Step Ten.  Secretary of State Filing Requirements

All newly formed California corporations must file a Statement of Information (Form SI-100) within the first 90 days of filing the Articles of Incorporation.  The Statement of Information can be filed online.  There is no such requirement in Delaware and New York.  However, each state has annual filing requirements.

Our attorneys are admitted to practice law in California, New York, and Texas.
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