How to Form a LLC in New York

Here’s everything you need to know to form a LLC in New York.  In this article, we will address all of the steps, but focus on New York’s onerous publication requirement.

Step One.  Select a Name

The first step is to determine whether the name is available.  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.

Step Two.   Prepare and File Certificate of Formation

A LLC is legally created by filing a Certificate of Formation with the Secretary of State.  The Articles contain basic information (e.g., the name, principal place of business, resident agent, etc.).

Step Three.  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 Four.  Prepare Operating Agreement

The Operating Agreement of a LLC is the playbook for how the LLC operates.  It is a private document (not filed with the State) that includes provisions that establish the management structure and appoint a Manager.

Step Five.  Publication

Within 120 days after filing the Articles, a notice must be published in two local newspapers — one weekly and one daily—of the county in which the office of the LLC is located.  The notice must run each week for six successive weeks. Once the notice has run for six weeks, the LLC must obtain from the newspapers affidavits of publication, which the LLC must then attach to a certificate of publication that is filed by the Department of State.

The publication requirement is an enormous hassle, and an expensive one at that, which (in theory) must be endured by just about any entity wishing to do business as a limited liability company in New York.   The only exception to the publication requirement is for a LLC that is a “theatrical production company“.

It is estimated that due to the publication requirement it costs about three times as much to form a LLC in New York City as it does to form a corporation. Much of that expense is traceable to the fact that within New York City, every LLC must cause notice to be published in the New York Law Journal, which charges an exorbitant rate compared to other publications in and out of the City.

Resource: Everything You Need to Know About New York’s LLC Publication Requirement

Step Six.  Secretary of State Filing Requirements

Unlike other states (e.g., California), there is no initial filing requirement in New York. However, New York does have a biennial filing requirement once the LLC is formed.