FLOOR BOOK MEMO House Committee on the Judiciary
Com. Sub. for H.B. 2553
Prepared by: Brian Skinner
(3/6/2013) Phone: 304-340-3258
email: brian.skinner@wvhouse.gov
SPONSORS: Delegates Morgan, Stephens, Diserio, Jones, Paxton, P. Smith, Staggers, Hartman, and Lynch.
TITLE: Authorizing the Secretary of State to administratively dissolve certain business entities.
DATE INTRODUCED: February 20, 2013.
CODE SECTIONS AFFECTED: W.Va. Code §31B-8-809, §31D-17-1420, §31D-15-1530, §31E-13-1320, and §31E-14-1430. (Amend & reenact).
IDENTICAL/SIMILAR BILLS: S.B. 70. (Same as)
CHAIRMAN’S SUMMARY:
A. EXISTING LAW: W.Va. Code § 31B-8-809, contains the grounds for which a limited liability company may be dissolved by the Secretary of State. W.Va. Code §§ 31D-14-1420 & 31E-13-1320, includes the grounds for which a domestic corporation – – for profit or non-profit – – may be dissolved by the Secretary. Finally, foreign corporations – – for profit or non-profit – – may be dissolved by the Secretary pursuant to W.Va. Code §§ 31D-15-1530 & 31E-14-1430.
B. THIS COMMITTEE SUBSTITUTE: The bill adds as grounds for the administrative dissolution of a limited liability company or corporation (foreign or domestic, for-profit or non-profit):
(1) the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; and
(2) the company or corporation being in default with the Bureau of Employment Programs.
C. COMMITTEE SUBSTITUTE: The Committee adopted a committee substitute that included only the non-substantive, drafting changes made to the intorduced bill by the Committee on Government Organization.
FULL ANALYSIS:
I. SUBSTANTIVE ANALYSIS
A. EXISTING LAW: Under current law a limited liability company may be dissolved by the Secretary of State if the company fails to pay any fees, taxes or penalties imposed by law within 60 days after they are due or fails to deliver its annual report to the Secretary of State within 60 days after it is due. W.Va. Code § 31B-8-809.
A domestic corporation – – for profit or non-profit – – may be dissolved by the Secretary if (1) it does not pay within 60 days after they are due any franchise taxes or penalties imposed by law; (2) fails to notify the Secretary within 60 days that its registered agent or registered office has been changed, that its registered agent has resigned or that its registered office has been discontinued; or (3) the corporation's period of duration stated in its articles of incorporation expires. W.Va. Code §§ 31D-14-1420 & 31E-13-1320.
A foreign corporation – – for profit or non-profit – – may be dissolved by the Secretary if (1) the foreign corporation does not pay within 60 days after they are due any franchise taxes or penalties imposed by law; (2) it fails to inform the Secretary that its registered agent or registered office has changed, its registered agent has resigned or its registered office has been discontinued within 60 days of the change, resignation or discontinuance; (3) an incorporator, director, officer or agent of the foreign corporation signed a document he or she knew was false in any material respect with intent that the document be delivered to the Secretary for filing; or (4) the Secretary receives a duly authenticated certificate from the Secretary of State or other official having custody of corporate records in the state or country under whose law the foreign corporation is incorporated stating that it has been dissolved or disappeared as the result of a merger. W.Va. Code §§ 31D-15-1530 & 31E-14-1430.
B. THIS BILL: The bill adds as grounds for the administrative dissolution of a limited liability company, a corporation, foreign or domestic, for profit or non-profit, the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; or the company or corporation being in default with the Bureau of Employment Programs.
C. COMMITTEE ON GOVERNMENT ORGANIZATION’S STRIKE AND INSERT AMENDMENT: The Committee on Government Organization adopted a strike and insert amendment to the bill that makes only a non-substantive drafting change to the bill’s contents. The amendment replaces the term “incorporators” with the phrase “license holders” in the amended language throughout the bill that applies to the revocation of professional licenses.
D. STAFF SUGGESTED COMMITTEE SUBSTITUTE: The staff suggested committee substitute adopts the Committee on Government Organization’s amendment in whole without any other changes.
II. SECTION DIRECTORY:
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 8. WINDING UP COMPANY'S BUSINESS.
§31B-8-809. Grounds for administrative dissolution.
The section contains the grounds for the administrative dissolution of a limited liability company. It is amended to include as grounds for dissolution, the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; or the company or corporation being in default with the Bureau of Employment Programs.
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 14. DISSOLUTION.
§31D-14-1420. Grounds for administrative dissolution.
The section contains the grounds for the administrative dissolution of a domestic corporation. It is amended to include as grounds for dissolution, the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; or the company or corporation being in default with the Bureau of Employment Programs.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1530. Grounds for revocation.
The section contains the grounds for the administrative dissolution of a foreign corporation. It is amended to include as grounds for dissolution, the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; or the company or corporation being in default with the Bureau of Employment Programs.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 13. DISSOLUTION.
§31E-13-1320. Grounds for administrative dissolution.
The section contains the grounds for the administrative dissolution of a non-profit corporation. It is amended to include as grounds for dissolution, the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; or the company or corporation being in default with the Bureau of Employment Programs.
ARTICLE 14. FOREIGN CORPORATIONS.
§31E-14-1430. Grounds for revocation.
The section contains the grounds for the administrative dissolution of a foreign non-profit corporation. It is amended to include as grounds for dissolution, the revocation of a professional license of one or more of the incorporators by a professional licensing board and the license is required for the continued operation of the company or corporation; or the company or corporation being in default with the Bureau of Employment Programs.
III. FISCAL ANALYSIS: A fiscal note is unavailable for this bill. However, it does not appear that the bill will have more than a de minimis fiscal impact on the State.
IV. COMMENTS
A. CONSTITUTIONAL ISSUES: None identified.
B. GOVERNMENT AGENCIES AFFECTED: Secretary of State.
C. RULE MAKING AUTHORITY: None.
D. COMMITTEE REFERENCE: Governmental Organization then Judiciary.
E. TITLE ANALYSIS: The bill’s title has been amended to more accurately reflect the contents of the bill. The new title is included in the committee substitute.
F. DRAFTING ISSUES OR OTHER COMMENTS: None.
G. EFFECTIVE DATE: 90 days from passage.