To form an S Corporation in New York, file a certificate of incorporation with the New York State Department of State Corporations Division and pay a filing fee. The Internal Revenue Service (IRS) treats S corporations as pass-through entities, similar to partnerships and sole proprietorships, avoiding the double taxation of C corporations. While limited liability companies (LLCs) became an increasingly popular choice for business entities nationwide in the last decade, as of 2007, New York countered the national trend with a significantly higher number of incorporations than LLC filings, according to the "Fordham Journal of Corporate & Financial Law."
Download and read the department's brochure "Forming a Business Corporation in New York."
Send a written request along with a $5 per name search fee to the New York State Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, New York, 12231, to ascertain if your company's name is available. If so, file an Application for Reservation of Name and pay the $20 filing fee. Complete the name reservation form online, print and mail it to the department. Read the online form instructions before completing the application. The corporation's name must include the term "corporation," "incorporated," "limited" or the letters "Inc.," "Ltd." or "Corp." If the name is available, the department will issue a certificate of name reservation, which reserves the name for 60 days and is renewable by written request for two additional 60-day periods. Make your check or money order payable to "Department of State" or complete and print the Credit Card/Debit Card Authorization form online at the department's website and mail it with the name reservation application. The department accepts payments by Master Card, Visa and American Express.
Complete the certificate of formation online at the department's website or purchase a certificate form from a New York stationery store. State the name of the corporation, the name of the New York county in which the corporation operates, the number and par value of shares that the corporation is authorized to issue, the address to which the secretary of state can mail process served on the state as registered agent for the corporation, and the name, title and address of each incorporator. The online form includes general business purposes; to include your business's purposes or other legal provisions, use a stationery store form or consult an attorney to draft the document.
Sign the certificate of formation and hand deliver or mail it along with a copy of the certificate of name reservation and the $125 filing fee and $10 stock-issuance tax to the New York State Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, New York, 12231. If the corporation is authorized to issue more than 200 shares of no par value or shares totaling a value of more than $20,000, contact the department to ascertain the applicable stock-issuance tax. Make your check or money order payable to "Department of State" or complete and print a Credit Card/Debit Card Authorization form. Attach the certificate of name reservation to the certificate of formation. You can also fax the documents to the department at (518) 474-1418. The department will issue a filing receipt upon approval.
Contact the New York Governor's Office of Regulatory Reform at (800) 342-3464 to learn if you need a business license or permit.
Draft corporation by-laws. Consult an attorney or purchase a corporation kit from a stationery store. You don't need to file the by-laws with the state, but the corporate directors must adopt by-laws, hold annual meetings and keep minutes and other records to legally maintain S corporation status.
You might wait two weeks to receive the filing certificate. To expedite service, include a written request and add a $25 fee for 24-hour service, a $75 fee for same-day service and a $150 fee for two-hour service. Keep the corporation's filing receipt in a fireproof safe or safety deposit because the department does not issue duplicate receipts. Obtain a federal tax identification number from the IRS after receiving the department's filing receipt. The corporation must file a federal tax return and New York state franchise tax reports annually.
- New York State Department of State Division of Corporations: Business Corporations Filings
- New York State Department of State Division of Corporations: Forming a Business Corporation in New York
- New York State Department of State Division of Corporations: Certificate of Incorproation
- New York State Department of State Division of Corporations: Credit Card/Debit Card Authorization
- John Cunningham on Limited Liability Company Operating Agreements: LLCs Are the New King of the Hill