What is a Foreign LLC? (Everything You Should Know)

Delina Chantel Yasmeh
Published by Delina Chantel Yasmeh | Author
Last updated: April 10, 2024
FACT CHECKED by Lou Viveros, Growth & Transition Advisor
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Understanding the concept of a Foreign LLC is crucial for businesses looking to expand their reach and navigate the legal complexities associated with conducting business in multiple states.

As an expert in business law with a thorough understanding of corporate structures, I've dedicated significant time to researching the concept of Foreign LLCs.

Through extensive analysis of legal documentation and consultations with industry professionals, I've gained authoritative insights into this business entity.

This concise guide aims to clarify the definition, purpose, and key considerations surrounding Foreign LLCs, empowering entrepreneurs and businesses with essential knowledge for LLC expansion and compliance.

Quick Summary

  • A Foreign LLC is an LLC registered in one state but operating in another state.
  • Registering a foreign LLC involves researching state laws, obtaining a Certificate of Good Standing, appointing a registered agent, and filing the application.
  • In Florida, unregistered foreign LLCs face annual fines between $500 and $1,000, as mandated by the 2011 Florida Statute, in addition to mandatory registration fees.
  • When we decided to expand into a new state, I dedicated time to meticulously investigating the registration process, fees, and required documents unique to that particular state.


What is a Foreign LLC?

Listing important information about foreign LLC using a pen in New York

A Foreign Limited Liability Company (LLC) refers to an LLC registered in one state but operating in another. The term "foreign" does not imply operations outside the United States; rather, it signifies the LLC's origin in a state other than where it conducts business.

For example, if an LLC is formed in California but operates in New York, it is considered a Foreign LLC in New York.

Understanding Foreign LLCs is crucial for entrepreneurs seeking to expand their businesses across state lines.

Advantages of this business structure include expanded market reach, access to new customer bases, and potential tax benefits.

However, challenges may arise, such as increased compliance and administrative burdens, varying state regulations, and potential double taxation.

Complying with state-specific regulations, tax implications, and registration requirements ensures smooth operations and legal protection.

How To Know If You Need A Foreign LLC?

Registered Agent using laptop

You will need a foreign LLC when transacting business in multiple locations.

Conducting business in one state doesn't necessarily imply you have to register as a foreign LLC in another state.

If your address or headquarters, for example, are located in Florida but transact business across U.S. borders, then the chances are that you have to register as a foreign LLC.

The same applies if you're a resident of Texas but have a physical business in California, such as a warehouse, a business bank account, or real estate.

What about residency?

A foreign LLC has nothing to do with your personal state of residence but the business' location, which is determined by its physical address or bank accounts (if any).

There are some specific cases where you might not need to register as a foreign LLC to transact business.

For example, if all your business activity is online and there's no physical presence in any other state, you don't have to do anything; the law will consider your business "domestic."

If you're still unsure whether or not you need a foreign LLC for interstate commerce, it's always best to consult an accountant or attorney specializing in business law.

However, the safest way to be sure if you need a foreign LLC is to visit the Secretary of State's website or contact them directly.

"Transacting business" is not limited to commercial activities only. Most states describe and allow business activities that a foreign LLC can undertake without registering.

These lists frequently include the following: 

  • Commencing lawsuits
  • Meeting with members or managers
  • Conducting internal affairs
  • Maintaining bank accounts
  • Hiring independent contractors

Registering a Foreign LLC

Arab couple looking at a laptop screen while holding a file

Businesses may register as a Foreign LLC in another state to tap into new markets, access specialized resources, or accommodate the relocation of owners or key employees.

"Transacting Business" in a foreign state refers to conducting substantial business activities, such as having a physical presence, generating revenue, or employing workers within that state.

Such activities typically trigger the need for Foreign LLC registration.

In Florida, the penalties for operating a foreign LLC without registration can range from $500 to $1,000 for each year the business is unregistered, plus the current registration filing fees, as proposed by the 2011 Florida Statute [1].

This emphasizes the importance of adhering to local regulations to avoid costly penalties.

Here are the steps to register a Foreign LLC in a new state:

1. Research State Laws

Before registering a Foreign LLC in a new state, research and understand the specific registration requirements, fees, and necessary documents the host state needs.

Each state has its own regulations, so it is essential to know the exact criteria to avoid any delays or rejections during the registration process.

This proactive approach proved invaluable as it helped us navigate the intricate details of the host state's regulations, ensuring we had all the necessary documentation.

2. Choose a Name

You will need to register under a unique LLC business name. Make sure to perform a name search before you file your registration form.

3. Obtain a Certificate of Good Standing

Acquire a Certificate of Good Standing from the domestic LLC state. This certificate proves that the foreign limited liability company is in good standing and up to date with its obligations in its home state.

Many states require this document as part of the registration process to ensure the LLC is compliant elsewhere.

4. Appoint a Registered Agent

Group of senior executives having a dicussion

Select an LLC registered agent within the new state who will act as the official point of contact and receive legal documents and notices on behalf of the foreign limited liability company.

The agent must have a physical address in the host state and be available during regular business hours to accept important communications.

5. File Foreign LLC Application

Complete and submit the required Foreign LLC application forms and associated fees to the appropriate state business authority.

The application typically includes basic information about the company, its owners, and the agent.

If you operate across multiple states, you might need to acquire a Certificate of Good Standing from the state where you initially registered and file it along with the foreign registration form.

Louisiana, Maine, Connecticut, Georgia, Florida, Idaho, Iowa, Kansas, Maryland, Massachusetts, Nevada, South Dakota, North Dakota, Washington, and Ohio are the states that require a Certificate of Good Standing from foreign LLCs.

Consider hiring a company to do the job for you, but be ready to pay the applicable fees as listed by Forbes Advisor [2].

Other necessary documents during foreign LLC registrations are a Certificate of Existence and a written LLC operating agreement.

Applying promptly and accurately will expedite the registration process.

6. Comply with Ongoing Requirements

Once the foreign limited liability company is registered in the new state, it must adhere to ongoing compliance obligations. These may include filing LLC annual reports, updating business information as needed, and meeting tax filing requirements.

Staying compliant ensures the LLC can continue operating smoothly in the new state without penalties or administrative issues.

7. Pay the Required Filing Fees

Fees vary by state and may include filing fees, registered agent fees, and annual report fees. The filing fee can vary from $20 to $600.

How Are Foreign LLCs Taxed?

Using a calculator and also working on documents

Foreign LLCs are taxed based on their classification, such as a partnership or foreign corporation, and their location.

Regulatory and tax requirements for foreign state entities transacting business in other states can differ from those imposed on domestic limited liability companies.

In 2015, Connecticut collected $1.8 million from unregistered companies operating within the state. The highest individual penalty levied was $46,740, showcasing the state's strict enforcement measures against non-compliance [3]. This underlines the severe tax implications and the necessity for thorough compliance with state-specific tax regulations.

Paying state taxes as a domestic limited liability company can be achieved by filing different forms with the IRS.

Here are the common tax forms a foreign LLC may be required to file:

1. Form 1120-F: A foreign limited liability company uses this form to be treated as a corporation for U.S. federal tax purposes. If the foreign LLC has elected to be treated as a foreign corporation, it will use this form to report its income, deductions, and credits from its U.S. business activities.

2. Form 1065: If the foreign LLC is treated as a partnership for tax purposes (e.g., if it has multiple owners), it may need to file Form 1065. This form reports the partnership's income, deductions, and credits.

3. Form 5472: This form is required for foreign-owned U.S. corporations, including foreign LLCs treated as corporations, engaged in certain reportable transactions with related parties.

4. Form 1042 and Form 1042-S: If the foreign limited liability company generates certain types of U.S.-sourced income, such as dividends, interest, or certain royalties, it may be subject to withholding tax. Form 1042 and Form 1042-S report and document this withholding.

5. Form 8804 and Form 8805: If the foreign limited liability company is a partner in a U.S. partnership, it may need to file these forms to report and pay its share of income effectively connected with a U.S. trade or business.

These tax forms designate the LLC as either a disregarded entity or an association taxable corporation for federal and personal income tax purposes, depending on state law and how it is organized under state laws.

According to Bloomberg Tax, this is generally done through a "nexus process," determined by state law and IRS rulings [4].

Generally, a foreign limited liability company will only be subject to tax in the state where it has established a physical presence via employees or real estate holdings. Income generated from other states will not be taxed in those states.

"Relevant double tax treaties between the country where the LLC is registered and the country where the LLC operates or generates income should also be considered."

- Jon Morgan, CEO, Co-Founder & Editor-in-Chief of Venture Smarter

As reported by the Internal Revenue Service, these treaties often contain provisions to avoid double taxation and provide guidance on allocating taxing rights between the countries involved [5].

FAQs

How Long Does It Take To Get a Foreign LLC?

It takes three to four business weeks to establish a foreign LLC. This timeframe allows for necessary legal processes and paperwork completion, aiding a legitimate and efficient foreign business setup. However, expedited processing can shorten the time to 1 to 3 business days.

Does an Online Business Need to Register as a Foreign LLC?

An online business doesn’t need to register as a foreign LLC unless it establishes a physical presence in another state. However, it may not be essential for purely online operations, but seeking professional advice is recommended to ensure compliance and protect the business.

Do I Need a Registered Agent for a Foreign LLC?

You will need a registered agent for a foreign LLC. An agent serves as your official representative in the state of registration, receiving legal and official documents on behalf of your business. This ensures compliance with state requirements and facilitates seamless communication with relevant authorities.


References:

  1. https://www.flsenate.gov/Laws/Statutes/2011/0608.502
  2. https://www.forbes.com/advisor/business/certificate-of-good-standing/
  3. https://www.cogencyglobal.com/hubfs/noindex/71515MerrillandJepsenCollectNearly18MillioninFinesfromOutofStateFirmspdf.pdf
  4. https://pro.bloombergtax.com/brief/how-to-determine-state-sales-tax-nexus/
  5. https://www.irs.gov/individuals/international-taxpayers/tax-treaties

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