Navigating the compliance life cycle of a business entity

Because compliance tasks can change over time and vary according to the entity’s type, its business, and its jurisdiction, understanding obligations isn’t always easy. 

In this article, we delve into the significance of navigating the compliance life cycle of a business entity and provide an overview of the four stages of compliance to assist you.

Importance of entity compliance and governance

There are many liability, tax, and other advantages to forming a separate legal business entity. But to maintain the rights and privileges of doing business as a statutory entity, the entity must maintain good standing in its formation state and any other state where it does business.

A Certificate of Good Standing indicates that the entity was validly formed and is in good standing. This certificate is often required by investors, lenders, vendors, and others before they do business with the entity. Many states also require a certificate when you need to register to do business in another state (foreign qualification).

A failure to maintain good standing can lead to a status change for the entity, including listing it as delinquent, void, suspended, or dissolved on the state’s public records.

Good governance should also be a priority.  It’s important to comply with the governance provisions of the formation state’s entity law. For example, a corporation must have a board of directors and an annual shareholders’ meeting.  Minutes of directors’ and shareholders’ meetings must be kept, maintained, and made available for shareholder inspection.  Governing documents such as operating agreements, bylaws, or shareholder agreements often also have provisions regarding how to govern the entity that must be followed. 

Complying with the laws needed to maintain good standing, and having good governance practices, can help reduce the risk of having a court pierce the corporate veil – which could result in the parent company being held liable for the subsidiary’s debts and obligations.  Piercing can occur when the subsidiary does not seem to have an existence separate from the parent. A subsidiary that has complied with its statutory obligations and has its own governance structure is more likely to be considered as having its own existence, thus reducing the risk of piercing.

Maintaining compliance across the life cycle of the entity

Stage 1: Launching

The first step in creating a legal business entity is choosing which type of entity to create. It’s important to choose the right type. Entities vary based on their tax treatment, management structure, owner’s rights and liabilities, and other characteristics. Factors to consider include the purpose of the business, the need for liability protection, whether the owners will actively participate in management, and more. 

Another important consideration is where to form the entity. The formation state is the corporate home for that entity, meaning it is subject to that state’s business entity statute (and certain other laws as well) regardless of where the business operates. 

An entity is created by filing a formation document – such as articles of incorporation or articles of organization - with the secretary of state or similar office. Most companies will also have to obtain licenses and permits as required by the state and municipalities where the company does business. The types of licenses or permits needed will vary depending on your company’s location, industry, operations, and products and services.

A new and important part of the formation process is the filing of a beneficial ownership information (BOI) report with a bureau of the U.S. Department of Treasury called the Financial Crimes Enforcement Network (FinCEN). Corporations, LLCs, and other entities created by the filing of documents with the Secretary of State or similar office are required to file a BOI report unless they qualify for an exemption. Companies formed in 2024 will have to file their initial report within 90 days of receiving notice of their formation. Companies formed in 2025 and beyond will have 30 days after notice of formation. The BOI report for these companies must set forth information about the company, its beneficial owners, and its company applicants. (Companies formed before 2024 have to file by January 1, 2025 and only report information about the company and beneficial owners).

Below are some common steps involved in the formation of a new entity:

• Conduct name availability check
• File name reservation/registration
• File Articles of Incorporation/Organization
• Appoint a registered agent
• Apply for business licenses and permits
• Apply for an EIN
• Obtain a state tax ID
• Submit beneficial ownership information report
• File assumed name or DBA certificate
• Order corporate records kit
• Publication in a newspaper (if required by state)

Stage 2: Maintain

After creating a corporation, LLC, or other entity, there are several ongoing compliance requirements that have to be kept track of and complied with. These generally fall into two categories: external (meaning those not related to the entity’s internal affairs) and internal (meaning those related to the way the entity is managed, the rights or liabilities of owners, and other matters of internal affairs).

The formation state and any state where your subsidiary corporation, LLC or other entity is registered to transact business (has undergone foreign qualification) will impose external requirements on your business entity. The following are some of the requirements:

• File annual report
• File and pay franchise tax
• Renew business licenses
• Renew assumed name or DBA registration

Corporations and LLCs must also comply with internal requirements regarding their governance. A governing statute and/or internal document may impose these requirements. Compliance tasks may include:

• Holding initial and annual meetings
• Adopting and maintaining updated bylaws/operating agreement 
• Issuing stock/shares 
• Recording stock transfers/membership interest transfers
• Maintaining separate and complete records for all subsidiaries 

To prove the existence of any entity for business transactions, you may need to obtain the following: 

• Certificate of Good Standing
• Apostille or Certificate of Authentication
• Certified copy of formation documents

Stage 3: Grow

Your organization's growth strategy can lead to unexpected compliance obligations, including:

• Filing foreign qualification/registration
• Appointing a registered agent in a foreign state
• Obtaining business licenses
• Appointing directors and reporting changes
• Updating beneficial ownership information report

If M&A is in the cards, thorough due diligence must be conducted prior to filing the Articles of Merger and performing post-merger filings and actions.

Many other activities can trigger new compliance actions, some of which will need to be performed within a certain timeframe. For example:

• Company name or address change: This requires you to file Articles of Amendment with the state, notify the IRS, update business licenses and permits, update the BOI report, and more.
• Updates to beneficial ownership information: Any changes in the information the company reported about the company or its beneficial owners must be reported by filing an updated BOI report with FinCEN within 30 days of the change occurring.
• Change of entity type: To convert an entity (known as a conversion), several steps must be completed, including obtaining board or member approval, filing articles of conversion, and updating business registrations. There are some states where statutory mergers are the only option for changing the type of entity. In those cases, you would first need to form a new entity (and complete all the steps on the launch stage) and then file Articles of Merger.

Stage 4: Close

If your business is not profitable, if its focus changes, or if its purpose has been accomplished, you may consider closing it down and dissolving the entity.

You may also merge the company into another entity, with your company being merged out of existence. Regardless of the situation, there are several steps to be taken, including the following:

• Obtain approval from the board or other governing body
• File Notice of Intent to Dissolve (if required)
• Obtain a tax clearance letter
• File Articles of Dissolution or file Articles of Merger and post-merger documents
• File Withdrawal of Qualification/Registration (in foreign jurisdictions)
• Cancel assumed name or DBA certificate
• Cancel business licenses and permits
• File updated BOI report (if required)

Taking the proper steps to dissolve a company is essential to avoid fines, penalties, loss of liability protection, and the risk of business identity theft.

CT Corporation can help

Keep on top of regulatory changes across your business entity life cycle. Our Entity Management Services can handle all your entity management needs. Supported by a team of experts with specialized knowledge and unmatched experience, CT Corporation is a true partner in your success.