Introduced Version
House Bill 2554 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2554
(By Delegates Morgan, Stephens, Staggers,
Hartman, Jones, Diserio and Lynch)
[Introduced February 20, 2013; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §31D-15-1532, of the Code of West
Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §31D-15-1533; to amend and
reenact §31E-14-1432 of said code; to amend said code by
adding thereto a new section, designated §31E-14-1533; and to
amend and reenact §59-1-2 of said code, all relating to
providing a procedure for the Secretary of State to reinstate
certificates of authority for foreign corporations; and
establishing a fee for reinstatement.
Be it enacted by the Legislature of West Virginia:
That §31D-15-1532 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that said code be amended by
adding thereto a new section, designated §31D-15-1533; that §31E-
14-1432 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §31E-14-1533; and that §59-1-2 of said code be amended and reenacted, all to
read as follows:
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1532. Appeal from revocation. Reinstatement following
administrative revocation.
_____(a) A foreign corporation may appeal the Secretary of State's
revocation of its certificate of authority to the circuit court
within thirty days after service of the certificate of revocation
is perfected pursuant to section one thousand five hundred ten of
this article. The foreign corporation appeals by petitioning the
circuit court to set aside the revocation and attaching to the
petition copies of its certificate of authority and the Secretary
of State's certificate of revocation.
(b) The circuit court may summarily order the Secretary of
State to reinstate the certificate of authority or may take any
other action the circuit court considers appropriate. (c)The
circuit court's final decision may be appealed as in other civil
proceedings.
_____(a) A corporation that has had its certificate of authority
administratively revoked under section one thousand five hundred
thirty-one of this article may apply to the Secretary of State for
reinstatement within two years after the effective date of revocation. The application must:
_____(1) Recite the name of the corporation and the effective date
of the administrative revocation;
_____(2) Demonstrate that the ground or grounds for revocation have
been eliminated;
_____(3) Demonstrate that the corporation's name satisfies the
requirements of section one thousand five hundred six, article
fifteen of this chapter; and
_____(4) Obtain a certificate from the Tax Commissioner reciting
that all taxes owed by the corporation have been paid.
_____(b) If the Secretary of State determines that the application
contains the information required by subsection (a) of this section
and that the information is accurate, the Secretary of State shall
cancel the Certificate of Revocation and prepare a Certificate of
Reinstatement that recites the Secretary of State's determination
and the effective date of reinstatement. The Secretary of State
shall send notice of the reinstatement to the corporation within
thirty days of the determination.
_____(c) When a reinstatement is granted, the reinstatement relates
back to and takes effect as of the effective date of the
administrative revocation and the corporation resumes its business
as if the administrative revocation had never occurred.
§31D-15-1533. Appeal from denial of reinstatement.
_____(a) If the Secretary of State denies a corporation's application for reinstatement following administrative revocation,
the Secretary of State shall notify the corporation within thirty
days of application by written notice that explains the reason or
reasons for denial.
_____(b) The corporation may appeal the denial of reinstatement to
the circuit court of Kanawha County within thirty days after
service of the notice of denial.
_____(c) The corporation may appeal by petitioning the circuit
court of Kanawha County to set aside the revocation and attaching
to the petition copies of the Secretary of State's Certificate of
Revocation, the corporation's application for reinstatement and the
Secretary of State's notice of denial.
_____(d) The circuit court's final decision may be appealed to the
West Virginia Supreme Court of Appeals in accordance with article
six, chapter twenty-nine-a of this code.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 14. FOREIGN CORPORATIONS.
§31E-14-1432. Appeal from revocation. Reinstatement following
administrative revocation.
_____(a) A foreign corporation may appeal the Secretary of State's
revocation of its certificate of authority to the circuit court
within thirty days after service of the certificate of revocation
is perfected pursuant to section one thousand four hundred ten of this article. The foreign corporation appeals by petitioning the
circuit court to set aside the revocation and attaching to the
petition copies of its certificate of authority and the Secretary
of State's certificate of revocation.
(b) The circuit court may summarily order the Secretary of
State to reinstate the certificate of authority or may take any
other action the circuit court considers appropriate.
(c) The circuit court's final decision may be appealed as in
other civil proceedings.
_____(a) A corporation that has had its certificate of authority
administratively revoked under section one thousand four hundred
thirty-one of this article may apply to the Secretary of State for
reinstatement within two years after the effective date of
revocation. The application must:
_____(1) Recite the name of the corporation and the effective date
of the administrative revocation;
_____(2) Demonstrate that the ground or grounds for revocation have
been eliminated;
_____(3) Demonstrate that the corporation's name satisfies the
requirements of section one thousand four hundred six, article
fifteen of this chapter; and
_____(4) Obtain a certificate from the Tax Commissioner reciting
that all taxes owed by the corporation have been paid.
_____(b) If the Secretary of State determines that the application contains the information required by subsection (a) of this section
and that the information is accurate, the Secretary of State shall
cancel the Certificate of Revocation and prepare a Certificate of
Reinstatement that recites the Secretary of State's determination
and the effective date of reinstatement. The Secretary of State
shall send notice of the reinstatement to the corporation within
thirty days of the determination.
_____(c) When a reinstatement is granted, the reinstatement relates
back to and takes effect as of the effective date of the
administrative revocation and the corporation resumes its business
as if the administrative revocation had never occurred.
§31E-14-1533. Appeal from denial of reinstatement.
_____(a) If the Secretary of State denies a corporation's
application for reinstatement following administrative revocation,
the Secretary of State shall notify the corporation within thirty
days of application by written notice that explains the reason or
reasons for denial.
_____(b) The corporation may appeal the denial of reinstatement to
the circuit court of Kanawha County within thirty days after
service of the notice of denial.
_____(c) The corporation may appeal by petitioning the circuit
court of Kanawha County to set aside the revocation and attaching
to the petition copies of the Secretary of State's Certificate of
Revocation, the corporation's application for reinstatement and the Secretary of State's notice of denial.
_____(d) The circuit court's final decision may be appealed to the
West Virginia Supreme Court of Appeals in accordance with article
six, chapter twenty-nine-a of this code.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-2. Fees to be charged by Secretary of State.
(a) Except as may be otherwise provided in this code, the
Secretary of State shall charge for services rendered in his or her
office the following fees to be paid by the person to whom the
service is rendered at the time it is done:
(1) For filing, recording, indexing, preserving a record of
and issuing a certificate relating to the formation, amendment,
change of name, registration of trade name, merger, consolidation,
conversion, renewal, dissolution, termination, cancellation,
withdrawal revocation and reinstatement of business entities
organized within the state, as follows:
(A) Articles of incorporation of for-profit corporation, $50;
(B) Articles of incorporation of nonprofit corporation, $25;
(C) Articles of organization of limited liability company,
$100;
(D) Agreement of a general partnership, $50;
(E) Certificate of a limited partnership, $100;
(F) Agreement of a voluntary association, $50;
(G) Articles of organization of a business trust, $50;
(H) Amendment or correction of articles of incorporation,
including change of name or increase of capital stock, in addition
to any applicable license tax, $25;
(I) Amendment or correction, including change of name, of
articles of organization of business trust, limited liability
partnership, limited liability company or professional limited
liability company or of certificate of limited partnership or
agreement of voluntary association, $25;
(J) Amendment and restatement of articles of incorporation,
certificate of limited partnership, agreement of voluntary
association or articles of organization of limited liability
partnership, limited liability company or professional limited
liability company or business trust, $25;
(K) Registration of trade name, otherwise designated as a true
name, fictitious name or D.B.A. (doing business as) name for any
domestic business entity as permitted by law, $25;
(L) Articles of merger of two corporations, limited
partnerships, limited liability partnerships, limited liability
companies or professional limited liability companies, voluntary
associations or business trusts, $25, and for each additional party
to the merger in excess of two, $15;
_____(M) Plus for each additional party to the merger in excess of
two: $15.00
(N) (M) Statement of conversion, when permitted, from one
business entity into another business entity, in addition to the
cost of filing the appropriate documents to organize the surviving
entity, $25;
(O) (N) Articles of dissolution of a corporation, voluntary
association or business trust or statement of dissolution of a
general partnership, $25;
(P) (O) Revocation of voluntary dissolution of a corporation,
voluntary association or business trust, $15;
(Q) (P) Articles of termination of a limited liability
company, cancellation of a limited partnership or statement of
withdrawal of limited liability partnership, $25; and
_____(R) (Q) Reinstatement of a domestic or foreign limited
liability company, or a professional limited liability company or
a domestic or foreign corporation after administrative dissolution
or revocation, $25.
(2) For filing, recording, indexing, preserving a record of
and issuing a certificate relating to the registration, amendment,
change of name, merger, consolidation, conversion, renewal,
withdrawal or termination within this state of business entities
organized in other states or countries, as follows:
(A) Certificate of authority of for-profit corporation, $100.00;
(B) Certificate of authority of nonprofit corporation, $50.00;
(C) Certificate of authority of foreign limited liability
companies, $150;
(D) Certificate of exemption from certificate of authority,
$25;
(E) Registration of a general partnership, $50;
(F) Registration of a limited partnership, $150;
(G) Registration of a limited liability partnership for two-
year term, $500;
(H) Registration of a voluntary association, $50;
(I) Registration of a trust or business trust, $50;
(J) Amendment or correction of certificate of authority of a
foreign corporation, including change of name or increase of
capital stock, in addition to any applicable license tax, $25;
(K) Amendment or correction of certificate of limited
partnership, limited liability partnership, limited liability
company or professional limited liability company, voluntary
association or business trust, $25;
(L) Registration of trade name, otherwise designated as a true
name, fictitious name or D.B.A. (doing business as) name for any
foreign business entity as permitted by law, $25;
(M) Amendment and restatement of certificate of authority or
of registration of a corporation, limited partnership, limited liability partnership, limited liability company or professional
limited liability company, voluntary association or business trust,
$25;
(N) Articles of merger of two corporations, limited
partnerships, limited liability partnerships, limited liability
companies or professional limited liability companies, voluntary
associations or business trusts, $25, and for each addition party
to the merger in excess of two, $5;
_____(O) Plus for each additional party to the merger in excess of
two 5.00
(P) (O) Statement of conversion, when permitted, from one
business entity into another business entity, in addition to the
cost of filing the appropriate articles or certificate to organize
the surviving entity, $25; and
_____(Q) (P) Certificate of withdrawal or cancellation of a
corporation, limited partnership, limited liability partnership,
limited liability company, voluntary association or business trust,
$25.
Notwithstanding any other provision of this section to the
contrary, after June 13, 2008, the fees described in this
subdivision that are collected for the issuance of a certificate
relating to the initial registration of a corporation, limited
partnership, domestic limited liability company or foreign limited
liability company shall be deposited in the general administrative fees account established by this section.
(3) For receiving, filing and recording a change of the
principal or designated office, change of the agent of process
and/or change of officers, directors, partners, members or
managers, as the case may be, of a corporation, limited
partnership, limited liability partnership, limited liability
company or other business entity as provided by law, $15.
(4) For receiving, filing and preserving a reservation of a
name for each one hundred twenty days or for any other period in
excess of seven days prescribed by law for a corporation, limited
partnership, limited liability partnership or limited liability
company, $15.
(5) For issuing a certificate relating to a corporation or
other business entity, as follows:
(A) Certificate of good standing of a domestic or foreign
corporation, $10;
(B) Certificate of existence of a domestic limited liability
company, and certificate of authorization foreign limited liability
company, $10;
(C) Certificate of existence of any business entity, trademark
or service mark registered with the Secretary of State, $10;
(D) Certified copy of corporate charter or comparable
organizing documents for other business entities, $15;
(E) Plus, for each additional amendment, restatement or other additional document, $5;
(F) Certificate of registration of the name of a foreign
corporation, limited liability company, limited partnership or
limited liability partnership, $25;
(G) And For the annual renewal of the name registration, $10;
and
(H) Any other certificate not specified in this subdivision,
$10.
(6) For issuing a certificate other than those relating to
business entities, as provided in this subsection, as follows:
(A) Certificate or apostille relating to the authority of
certain public officers, including the membership of boards and
commissions, $10;
(B) Plus, For each additional certificate pertaining to the
same transaction, $5;
(C) Any other certificate not specified in this subdivision,
$10;
(D) For acceptance, indexing and recordation of service of
process any corporation, limited partnership, limited liability
partnership, limited liability company, voluntary association,
business trust, insurance company, person or other entity as
permitted by law, $15;
(E) For shipping and handling expenses for execution of
service of process by certified mail upon any defendant within the United States, which fee is to be deposited to the special revenue
account established in this section for the operation of the office
of the Secretary of State, $5; and
(F) For shipping and handling expenses for execution of
service of process upon any defendant outside the United States by
registered mail, which fee is to be deposited to the special
revenue account established in this section for the operation of
the office of the Secretary of State, $15.
(7) For a search of records of the office conducted by
employees of or at the expense of the Secretary of State upon
request, as follows:
(A) For any search of archival records maintained at sites
other than the office of the Secretary of State, no less than $10;
(B) For searches of archival records maintained at sites other
than the office of the Secretary of State which require more than
one hour, for each hour or fraction of an hour consumed in making
such search, $10;
(C) For any search of records maintained on site for the
purpose of obtaining copies of documents or printouts of data, $5;
(D) For any search of records maintained in electronic format
which requires special programming to be performed by the state
information services agency or other vendor any actual cost but not
less than, $25, which cost is in addition to the cost of any copies
of printouts prepared or any certificate issued pursuant to or based on the search; and
_____(E) The cost of the search is in addition to the cost of any
copies or printouts prepared or any certificate issued pursuant to
or based on the search.
(F) (E) For recording any paper for which no specific fee is
prescribed, $5.
(8) For producing and providing photocopies or printouts of
electronic data of specific records upon request, as follows:
(A) For a copy of any paper or printout of electronic data, if
one sheet, $1;
(B) For each sheet after the first, $.50;
(C) For sending the copies or lists by fax transmission, $5;
(D) For producing and providing photocopies of lists, reports,
guidelines and other documents produced in multiple copies for
general public use, a publication price to be established by the
Secretary of State at a rate approximating $2 plus $.10 per page
and rounded to the nearest dollar; and
(E) For electronic copies of records obtained in data format
on disk, the cost of the record in the least expensive available
printed format, plus, for each required disk, which shall be
provided by the Secretary of State, $5.
(b) The Secretary of State may propose legislative rules for
promulgation for charges for on-line electronic access to database
information or other information maintained by the Secretary of State.
(c) For any other work or service not enumerated in this
subsection, the fee prescribed elsewhere in this code or a rule
promulgated under the authority of this code.
(d) The records maintained by the Secretary of State are
prepared and indexed at the expense of the state and those records
shall may not be obtained for commercial resale without the written
agreement of the state to a contract including reimbursement to the
state for each instance of resale.
(e) The Secretary of State may provide printed or electronic
information free of charge as he or she considers necessary and
efficient for the purpose of informing the general public or the
news media.
(f) There is hereby continued in the State Treasury a special
revenue account to be known as the "service fees and collections"
account. Expenditures from the account shall be used for the
operation of the office of the Secretary of State and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code. Notwithstanding any other provision of this
code to the contrary, except as provided in subsection (h) of this
section and section two-a of this article, one half of all the fees and service charges established in the following sections and for
the following purposes shall be deposited by the Secretary of State
or other collecting agency to that special revenue account and used
for the operation of the office of the Secretary of State:
(1) The annual attorney-in-fact fee for corporations and
limited partnerships established in section five, article twelve-c,
chapter eleven of this code;
(2) The fees received for the sale of the State Register, Code
of State Rules and other copies established by rule and authorized
by section seven, article two, chapter twenty-nine-a of this code;
(3) The registration fees, late fees and legal settlements
charged for registration and enforcement of the charitable
organizations and professional solicitations established in
sections five, nine and fifteen-b, article nineteen, chapter
twenty-nine of this code;
(4) The annual attorney-in-fact fee for limited liability
companies as designated in section one hundred eight, article one,
chapter thirty-one-b of this code and established in section two
hundred eleven, article two of said chapter. Provided, That After
June 30, 2008, the annual report fees designated in section one
hundred eight, article one, chapter thirty-one-b of this code shall
upon collection be deposited in the general administrative fees
account described in subsection (h) of this section;
(5) The filing fees and search and copying fees for uniform commercial code transactions established by section five hundred
twenty-five, article nine, chapter forty-six of this code;
(6) The annual attorney-in-fact fee for licensed insurers
established in section twelve, article four, chapter thirty-three
of this code;
(7) The fees for the application and record maintenance of all
notaries public established by section one hundred seven, article
one, chapter twenty-nine-c of this code;
(8) The fees for the application and record maintenance of
commissioners for West Virginia as established by section twelve,
article four, chapter twenty-nine of this code;
(9) The fees for registering credit service organizations as
established by section five, article six-c, chapter forty-six-a of
this code;
(10) The fees for registering and renewing a West Virginia
limited liability partnership as established by section one,
article ten, chapter forty-seven-b of this code;
(11) The filing fees for the registration and renewal of
trademarks and service marks established in section seventeen,
article two, chapter forty-seven of this code;
(12) All fees for services, the sale of photocopies and data
maintained at the expense of the Secretary of State as provided in
this section; and
(13) All registration, license and other fees collected by the Secretary of State not specified in this section.
(g) Any balance in the service fees and collections account
established by this section which exceeds $500,000 as of June 30,
2003, and each year thereafter, shall be expired expires to the
state fund, General Revenue Fund.
(h)(1) Effective July 1, 2008, there is hereby created in the
State Treasury a special revenue account to be known as the general
administrative fees account. Expenditures from the account shall be
used for the operation of the Office of the Secretary of State and
are not authorized from collections but are to be made only in
accordance with appropriation by the Legislature and in accordance
with the provisions of article three, chapter twelve of this code
and upon the fulfillment of the provisions set forth in article
two, chapter eleven-b of this code. Provided, That For the fiscal
year ending June 30, 2009, expenditures are authorized from
collections rather than pursuant to an appropriation by the
Legislature. Any balance in the account at the end of each fiscal
year shall not revert to the General Revenue Fund but shall remain
in the fund and be expended as provided by this subsection.
(2) After June 30, 2008, all the fees and service charges
established in section two-a of this article for the following
purposes shall be collected and deposited by the Secretary of State
or other collecting agency in the general administrative fees
account and used for the operation of the Office of the Secretary of State:
(A) The annual report fees paid to the Secretary of State by
corporations, limited partnerships, domestic limited liability
companies and foreign limited liability companies;
(B) The fees for the issuance of a certificate relating to the
initial registration of a corporation, limited partnership,
domestic limited liability company or foreign limited liability
company described in subdivision (2), subsection (a) of this
section; and
(C) The fees for the purchase of date and updates related to
the state's Business Organizations Database described in section
two-a of this article.
(i) There is continued in the office of the Secretary of State
a noninterest bearing, escrow account to be known as the "prepaid
fees and services account". This account shall be is for the
purpose of allowing customers of the Secretary of State to prepay
for services, with payment to be held in escrow until services are
rendered. Payments deposited in the account shall remain in the
account until services are rendered by the Secretary of State and
at that time the fees will be reallocated to the appropriate
general or special revenue accounts. There shall be no fee charged
by the Secretary of State to the customer for the use of this
account and the customer may request the return of any moneys
maintained in the account at any time without penalty. The assets of the prepaid fees and services account do not constitute public
funds of the state and are available solely for carrying out the
purposes of this section.
NOTE: The purpose of this bill is to provide a procedure for
foreign profit and nonprofit corporations to reinstate in the same
manner as is already provided for limited liability companies.
§31D-15-1533 and §31E-14-1533 are new ; therefore, they have
been completely underscored.
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.