Bill H.2777

HOUSE DOCKET, NO. 2339 FILED ON: 1/17/2019

HOUSE . . . . . . . . . . . . . . . No. 2777

By Mr. Scaccia of Boston, a petition (accompanied by bill, House, No. 2777) of Angelo M. Scaccia and William Francis Galvin relative to the reporting requirements of limited liability partnerships and certain corporations. State Administration and Regulatory Oversight.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to a business entity.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 45 of Chapter 108A of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking, in line 4 and line 18, the words “federal employer identification number of the partnership”.

SECTION 2. Section 45 of chapter 108A of the General Laws, as so appearing is hereby further amended by striking subsection (6) and inserting in place thereof the following subsection:-

(6) If a partnership fails to file an annual report when due, pay the required fee, or the payment of any fee due the commonwealth was dishonored when presented for payment and the partnership has failed to make payment within 20 days after written notice of such failure was mailed to the partnership, the state secretary may revoke the registration of the partnership. If the state secretary determines that one or more grounds exist for revoking the registration of a partnership, he shall notify the partnership of his determination. The notice shall be sent in writing and mailed postage prepaid to the office of the partnership’s resident agent, or if the resident agent consents, sent by electronic mail to an electronic mail address furnished by the agent for such purpose. If the partnership has not appointed a resident agent, notice shall be given by mail to the partnership at the address of its principal office as shown in the records of the state secretary, or if the partnership consents, sent by electronic mail to an electronic mail address furnished by the partnership for such purpose. The notice shall specify the annual reports which have not been filed and the fees which have not been paid. If the partnership does not correct each ground for revocation or demonstrate to the reasonable satisfaction of the state secretary that each ground determined by the secretary of state does not exist within 60 days after notice is given, the state secretary shall administratively revoke the registration of the partnership.

SECTION 3. Chapter 108A of the General Laws, as so appearing, is hereby further amended by adding the following new sections:-

Section 50. Electronic Filings

Electronic documents or transmissions may be filed with the secretary of state if, and to the extent, permitted by the secretary. The secretary of state may promulgate regulations regarding the procedures for electronic filings which supersede any inconsistent provisions of this chapter with respect to such filings.

Section 51. Correcting a Filed Certificate

(a)A limited liability partnership may correct a document filed with the state secretary if the document:

(1) contains a typographical error or an incorrect statement; or

(2) was defectively executed, attested, sealed, verified or acknowledged.

(b)A document is corrected:

(1)by preparing a certificate of correction that (i) describes the document, including its filing date, (ii) specifies the typographical error, the incorrect statement and the reason it is incorrect or the manner in which the execution was defective and (iii) corrects the typographical error, incorrect statement or defective executions; and

(2)by delivering the certificate of correction to the secretary of state for filing.

(c)A certificate of correction is effective on the effective date of the document it corrects except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, the certificate of correction is effective when filed.

(d)A certificate of correction cannot be used to change the effective date of a filed document, provided however, that if a document has been filed with a delayed effective date, a certificate of correction may be filed prior to said date to accelerate the effective date to a date not earlier than the date of the certificate of correction.

(e)If the secretary of state permits electronic filings, defects in the electronic recording or transmission of documents may be corrected under this section to the extent permitted by regulations promulgated by the secretary.

(f)The fee for filing a certificate of correction is $100.00.

Section 52. Pre-clearance of Filings

The fee for examining and provisionally approving any record at any time before the record is presented for filing is $100.00.

SECTION 4. Section 13 of chapter 109 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking subsection (a) and inserting in place thereof the following subsection:-

(a) A signed copy of the certificate of limited partnership and of any certificate of amendment or cancellation, or any judicial decree of amendment or cancellation, shall be delivered to the secretary of state. A person who executes a certificate as an agent or fiduciary need not exhibit evidence of his authority as a prerequisite to filing. Unless the secretary of state finds that the certificate does not conform to law, upon receipt of all filing fees required by law, he shall evidence his approval on or with the document. Upon such approval and payment of all filing fees required by law, the filing shall be deemed to be filed with the secretary of state.

SECTION 5. Section 13 of chapter 109 of the General Laws, as so appearing, is further amended by adding the following new subsection:-

(c) Electronic documents or transmissions may be filed with the secretary of state if, and to the extent, permitted by the secretary. The secretary of state may promulgate regulations regarding the procedures for electronic filings which supercede any inconsistent provisions of this chapter with respect to such filings.

SECTION 6. Chapter 109 of the General Laws, as so appearing, is further amended by adding, after section 13, the following new section:-

13A. Correcting a Filed Certificate

(a)A domestic or foreign limited partnership may correct a document filed with the state secretary if the document:

(1) contains a typographical error or an incorrect statement; or

(2) was defectively executed, attested, sealed, verified or acknowledged.

(b)A document is corrected:

(2)by delivering the certificate of correction to the secretary of state for filing.

(d)A certificate of correction cannot be used to change the effective date of a filed document; provided, however, that if a document has been filed with a delayed effective date, a certificate of correction may be filed prior to said date:

(1) to accelerate the effective date to a date not earlier than the date of the certificate of correction; or

(2) to abandon a merger or amendment if the authority to do so is granted by the merger agreement or the persons approving the amendment.

SECTION 7. Chapter 109 of the General Laws is hereby further amended by striking Section 16 in its entirety.

SECTION 8. Section 55 of chapter 109, as so appearing, is hereby amended by adding the following new subsection:-

(c) A foreign limited partnership is liable to the commonwealth for the years or parts of years during which it transacted business in the commonwealth without delivering to the secretary of state for filing the certificate required by section 49, an amount equal to:

(1) all fees which would have been imposed by law had it duly delivered the certificate; and

(2) all interest and penalties imposed by law for failure to pay the fees. A foreign limited partnership is further liable to the commonwealth, for each month or part thereof during which it transacted business without delivering the certificate, an amount determined by the secretary of state, which shall in no event exceed the amount established by the Commissioner of Administration under section 3B of Chapter 7, except that a foreign limited partnership which has delivered such certificate shall not be liable for such monthly penalty for the first ten (10) days during which it transacted business without delivering such certificate. Such fees and penalties may be levied by the secretary of state. The attorney general may bring an action necessary to recover amounts due to the commonwealth under this subsection including an action to restrain a foreign limited partnership against which fees and penalties have been imposed pursuant to this subsection from transacting business in the commonwealth until the fees and penalties have been paid.

SECTION 9. Section 64 of chapter 109 is hereby amended by striking out subsections (a) and (b) inserting in place thereof the following subsections:-

(a) the state secretary may commence a proceeding to dissolve a limited partnership if:

(1)the limited partnership has failed for 2 or more consecutive years to comply with the laws requiring the filing of annual reports;

(2)payment of any fee due the commonwealth was dishonored when presented for payment and the limited partnership has failed to make payment within 20 days after written notice of such failure was mailed to the limited partnership; or

(3)he is satisfied that the limited partnership has become inactive and its dissolution would be in the public interest.

(b) If the state secretary determines that one or more grounds exist for dissolving a limited partnership, he shall notify the partnership’s resident agent of his determination. The notice shall be sent in writing and mailed postage prepaid to the resident agent’s office, or if the resident agent consents, sent by electronic mail to an electronic mail address furnished by the agent for such purpose. The notice shall specify the annual reports which have not been filed, the fees which have not been paid and the payment which has been dishonored. If the partnership does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the state secretary that each ground determined by the secretary of state does not exist within 90 days after notice is given, the state secretary shall administratively dissolve the limited partnership.

SECTION 10. Section 65 of chapter 109 is hereby amended by striking out subsections (a) and (b) and inserting in place thereof the following subsection:-

(a) The state secretary may commence a proceeding to revoke the authority of a foreign limited partnership to transact business in the commonwealth if:

(1)the foreign limited partnership has failed for 2 consecutive years to comply with the laws requiring the filing of annual reports;

(2)payment of any fee due the commonwealth was dishonored when presented for payment and the foreign limited partnership has failed to make payment within 20 days after written notice of such failure was mailed to the foreign limited partnership; or

(b)If the state secretary determines that one or more grounds exist to revoke the authority of the foreign limited partnership to transact business in the commonwealth, he shall notify the foreign limited partnership’s resident agent of his determination. The notice shall be sent in writing and mailed postage prepaid to the resident agent’s office, or if the resident agent consents, sent by electronic mail to an electronic mail address furnished by the agent for such purpose. The notice shall specify the annual reports which have not been filed, the fees which have not been paid and the payment which has been dishonored. If the partnership does not correct each ground for revocation or demonstrate to the reasonable satisfaction of the state secretary that each ground determined by the secretary of state does not exist within 90 days after notice is given, the state secretary shall administratively revoke the authority of the limited partnership to transact business in the commonwealth.

(c)The authority of the foreign limited partnership to transact business in the commonwealth shall cease on the date on which the secretary makes such revocation effective.

SECTION 11. Chapter 109, as so appearing, is hereby further amended by adding the following new sections:-

Section 67. Good Standing

A limited partnership shall be deemed to be in good standing with the secretary of state if such limited partnership appears, from the records of said secretary, to exist and has paid all fees due to the secretary, and no certificate of cancellation has been filed by or with respect to the limited partnership. Upon the request of any person and payment of such fee as may be prescribed by law, the state secretary shall issue a certificate stating, in substance, as to any limited partnership meeting the requirements of this section, that such limited partnership appears, from the records in his office, to exist and to be in good standing, and stating the identity of any and all general partners who are named in the most recent document filed with the state secretary.

Section 68. Pre-clearance of Filings

The fee for examining and provisionally approving any record at any time before the record is presented for filing is $100.00.

SECTION 12. Section 17 of chapter 156A of the General Laws as appearing in the 2016 Official Edition, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:-

(a) A foreign professional corporation shall register under the provisions of this section if the corporation would be required to incorporate under this chapter if organized in the commonwealth and

(1) it maintains an office in the commonwealth; or

(2) any of its shareholders, officers, or directors conducts activity on behalf of the corporation in the commonwealth as to require licensing under the provisions of chapter one hundred and twelve or chapter two hundred and twenty-one.

SECTION 13. Section 17 of chapter 156C of the General Laws, as so appearing is hereby further amended by striking subsection (a) and inserting in place thereof the following subsection:-

(a) The original signed copy of the certificate of organization and of any certificates of amendment or cancellation or any judicial decree of amendment or cancellation, of any certificate of consolidation, merger or conversion and of any restated certificate shall be delivered to the state secretary. A person who executes a certificate as an attorney-in-fact or fiduciary shall not be required to exhibit evidence of his authority as a prerequisite to filing. Unless the state secretary finds that any certificate does not conform to law, upon receipt of all filing fees required by law, he shall evidence his approval on or with the document. Upon said approval and payment of all filing fees required by law, the filing shall be deemed filed with the secretary of state. Said endorsement shall be conclusive of the date and time of its filing in the absence of actual fraud.

SECTION 14.

Section 17 of said chapter 156C, as so appearing, is hereby further amended by adding to section 17 the following new paragraph:-

SECTION 15. Chapter 156C of the General Laws, as so appearing, is further amended by adding, after section 17, the following new section:-

17A. Correcting a Filed Certificate

(a) A domestic or foreign limited liability company may correct a document filed with the state secretary if the document:

(1) contains a typographical error or an incorrect statement; or

(2) was defectively executed, attested, sealed, verified or acknowledged.

(b) A document is corrected:

(2)by delivering the certificate of correction to the secretary of state for filing.

(c) A certificate of correction is effective on the effective date of the document it corrects except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, the certificate of correction is effective when filed.

(1) to accelerate the effective date to a date not earlier than the date of the certificate of correction, or

(2) to abandon a merger or amendment if the authority to do so is granted by the merger agreement or the persons approving the amendment.

(f)The fee for filing a certificate of correction with the state secretary is $100.00.

SECTION 16. Section 48 of chapter 156C of the General Laws, as so appearing, is hereby amended by adding, after clause 5, the following new clause:-

(5A) the name of any other person in addition to any manager who is authorized to execute documents to be filed with the office of the state secretary, and at least one shall be named if there are no managers.

SECTION 17. Section 54 of chapter 156C, as so appearing, is amended by striking paragraph (a) and inserting in place thereof:

(a) A foreign limited liability company is liable to the commonwealth for the years or parts of years during which it transacted business in the commonwealth without delivering to the secretary of state for filing the certificate required by section 48, an amount equal to: -

(1) all fees which would have been imposed by law had it duly delivered the certificate; and

(2) all interest and penalties imposed by law for failure to pay the fees. A foreign limited liability company is further liable to the commonwealth, for each year or part thereof during which it transacted business without delivering the certificate, an amount not to exceed $500.00 except that a foreign limited liability company which has delivered such certificate shall not be liable for such penalty for the first 10 days during which it transacted business without delivering such certificate. Such fees and penalties may be levied by the secretary of state. The attorney general may bring an action necessary to recover amounts due to the commonwealth under this subsection including an action to restrain a foreign limited liability company against which fees and penalties have been imposed pursuant to this subsection from transacting business in the commonwealth until the fees and penalties have been paid. No such failure shall affect the validity of any contract involving the foreign limited liability company, nor is a member or manager of a foreign limited liability company liable for the obligations of the foreign limited liability company solely by reason of such failure, but no action shall be maintained or recovery had by the foreign limited liability company in any of the courts of the commonwealth as long as such failure continues. The failure of a foreign limited liability company to register with the state secretary shall not prevent the foreign limited liability company from defending any action, suit or proceeding in any of the courts of the commonwealth.

SECTION 18. Chapter 156C, as so appearing, is hereby amended by striking section 70 and inserting in place thereof:-

(a)The state secretary may commence a proceeding to dissolve a limited liability company if:

1.The limited liability company has failed for two consecutive years to comply with the law requiring the filing of annual reports; or

2.The payment of any fee due the commonwealth was dishonored when presented for payment and the limited liability company has failed to make payment within 20 days after written notice of such failure was mailed to the limited liability company; or

3.He is satisfied that the limited liability company has become inactive and its dissolution would be in the public interest.

(b)If the state secretary determines that grounds exist under subsection (a), he shall notify the limited liability company of his determination. The notice shall be sent in writing and mailed postage prepaid to the office of the limited liability company’s resident agent, or if the resident agent consents, sent by electronic mail to an electronic mail address furnished by the agent for such purpose. The notice shall specify the annual reports which have not been filed and the fees which have not been paid. If the limited liability company does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the state secretary that each ground for dissolution does not exist within 90 days after notice is given, the state secretary shall administratively dissolve the limited liability company.

(c)A limited liability company administratively dissolved continues in existence but shall not carry on any business except that necessary to wind up and liquidate its affairs.

SECTION 19. Chapter 156C as so appearing is hereby amended by striking section 72 and inserting in place thereof:-

(a)The state secretary may commence a proceeding to revoke the authority of a foreign limited liability company to transact business in the commonwealth if:

1.The foreign limited liability company has failed for two consecutive years to comply with the laws requiring the filing of annual reports; or

2.The payment of any fee due the commonwealth was dishonored when presented for payment and the foreign limited liability company has failed to make payment within 20 days after written notice of such failure was mailed to the foreign limited liability company;

(b)If the state secretary determines that grounds exist under subsection (a), he shall notify the foreign limited liability company of his determination. The notice shall be sent in writing and mailed postage prepaid to the office of the foreign limited liability company’s resident agent, or if the resident agent consents, sent by electronic mail to an electronic mail address furnished by said agent for such purpose. The notice shall specify the annual reports which have not been filed and the fees which have not been paid. If the foreign limited liability company does not correct each ground for revocation or demonstrate to the reasonable satisfaction of the state secretary that each ground for revocation does not exist within 90 days after notice is given, the state secretary shall administratively revoke the authority of the foreign limited liability company to transact business in the commonwealth.

(c)The authority of the foreign limited liability company to transact business in the commonwealth shall cease on the date on which the state secretary makes such revocation effective.

SECTION 20. Chapter 156C is hereby further amended by adding, after section 72, the following new section:-

Section 73. Pre-clearance of Filings

The fee for examining and provisionally approving any record at any time before the record is presented for filing is $100.00.

SECTION 21.Section 1.20 of chapter 156D as appearing in the 2016 Official Edition is hereby amended by striking paragraph (h) and inserting in place thereof the following:-

(h)The document shall be delivered to the office of the secretary of state for filing and shall be accompanied by the correct filing fee and any payment or penalty required by this chapter or other law.

SECTION 22.General Laws chapter 156D, as so appearing, is hereby further amended by striking section 1.22 and inserting in place thereof the following:-

Section 1.22. Filing Service and Copying Fees

(a)The commissioner of administration shall issue regulations prescribing fees for the filing and copying of documents, the issuance of certificates and the handling of service of process under this Act.

(b)The fee for examining and provisionally approving any record at any time before the record is presented for filing is $100.00.

SECTION 23. Section 14.20 of chapter 156D, as so appearing, is hereby amended by striking clause (b) and inserting the following:-

(b) the secretary of state is satisfied that the corporation has become inactive and its dissolution would be in the public interest; or

(c) payment of any fee due the commonwealth was dishonored when presented for payment and the corporation has failed to make payment within twenty (20) days after written notice of such failure was mailed to the corporation.

SECTION 24.Section 14.23 of chapter 156D, as appearing, is hereby amended by striking subsection (a) and inserting in place thereof the following subsection:-

(a) If the secretary of state denies a corporation’s application for reinstatement following administrative dissolution, he shall provide the corporation with a written notice that explains the reason or reasons for denial.

SECTION 25.Section 15.30 of chapter 156D, as so appearing, is hereby further amended by striking said section and inserting in place thereof:-

Section 15.30. Grounds for Revocation

The secretary of state may commence a proceeding under section 15.31 to revoke the authority of a foreign corporation to transact business in the commonwealth if:

(a)the foreign corporation has failed for 2 or more consecutive years to comply with the law regarding the filing of reports with the secretary of state or the filing of tax returns or the payment of any taxes under chapter 62C or Chapter 63 for 2 or more consecutive years; or

(b)the payment of any fee due the commonwealth was dishonored when presented for payment and the corporation has failed to make payment within 20 days after written notice of such failure was mailed to the corporation.

Name:	District/Address:	Date Added:
Angelo M. Scaccia	14th Suffolk	1/16/2019
William Francis Galvin	Secretary of the Commonwealth	1/16/2019