Contract Lawyer Minneapolis |Minnesota LLC Formation IV: Bylaws or Operating Agreement

In the first part of this series, I mentioned that LLC Bylaws or Operating Agreement (as Bylaws were called in the original version of the Minnesota Limited Liability Company Act) is one of the essential documents and an integral part of LLC formation in Minnesota.

Bylaws may be adopted by the organizers or the first Board of Governors. Remember, though, that the power of the Board in this respect is usually subject to the power of the LLC members to adopt, amend or repeal any Bylaws.

An LLC may adopt Bylaws provisions to establish the management of the LLC, including the regulation of the internal affairs. Bylaws provisions, however, should not be inconsistent with Minnesota law or the Articles of Organization.

The Bylaws typically regulate such matters as: the election and compensation of the governors, Member meetings, Board meetings, notice procedures, voting rights and procedures, election and authority of the managers, removal of the managers, compensation issues, recordkeeping, establishment of the fiscal year, and other management-related issues. A buy-sell agreement may be included in the Bylaws, but this agreement needs to be written in conformity with the rest of the Bylaws.

Thus, the Bylaws cover a broad range of issues and are indispensable to proper management of the business. It is important to remember, however, that, where the LLC is expected to be governed and managed by its members, the members should consider executing a Member Control Agreement. The Member Control Agreement is much broader than the Bylaws and may provide a much greater degree of flexibility necessary in many member-managed LLCs.

Sherayzen Law Office has developed a great degree of concentration and experience in drafting business governance documents. We have consulted start-up and already established clients in Minnesota and throughout the United States with respect to governance documents. We have wide-ranging experience in drafting Bylaws, Member Control Agreements, as well as combination of these two documents known as “Member Control and Operating Agreement”.

Business Lawyer Minneapolis |Registering Assumed Name in Minnesota

If you are required to register an assumed name for your business (to learn about who is required to register an assumed name, click here), it is important to follow through with all of the registration requirements. There are three basic step to registering an assumed name in Minnesota.

1. Fill-out Certificate of Assumed Name

Fill-out the Certificate of Assumed Name. The form is readily available online at the Secretary of State’s website. Filling-out the Certificate is usually not complicated; you need to provide the following information:

a) Exact (assumed) business name. The Secretary of State will not accept a name that duplicates either a registered name of a business entity (corporation, limited liability company or partnership) or a trademark already on file. Only one name per form is allowed;

b) Complete address of the principal place of business. A Minnesota address is preferable, but an out-of-state address may also be acceptable. P.O. Box is not acceptable;

c) Names and addresses of all persons conducting business under the Assumed Name. If such a person is a business entity, then provide a full legal name of the entity and the registered office address; and

d) Signature, date, printed name and title of one of the persons who are conducting business under the Assumed Name. An Authorized Agent may also sign the form as long as the Agent identifies himself as such (including the fact that he is authorized to sign the form). A contact information with respect to the form should also be included.

2. File the Certificate of Assumed Name with Filing Fee

The second step is to file the Certificate of Assumed Name with the Office of the Minnesota Secretary of State. A filing fee of $25 (in the year 2010) should be enclosed with the Certificate. The check should be made payable to the “MN Secretary of State”.

3. Publish Legal Notice

Once the Certificate of Assumed Name is filed with the Secretary of State, you must publish the Certificate or Amended Certificate of Assumed Name with a qualified newspaper for two consecutive issues in the county where the principal place of business is located. The newspaper should provide with detailed instructions on how to proceed with the publication. After the publication, the newspaper will return an affidavit of publication which should be retained in your business file.

Failure to publish may render the filing of the Certificate invalid.

Amendment of the Certificate

The Certificate of Amended Assumed Name form must be filed within sixty (60) days with the Secretary of State after any change in the assumed name, business or owner’s address, and ownership has occurred. The Amended Certificate must be published as described above.

Term and Renewal

A Certificate of Assumed Name is valid for ten (10) years from the date of filing with the Secretary of State. A renewal form should be mailed to the business address on file six months prior to expiration. There is filing fee of $25 (current as of the year 2010) to file a renewal.

Conclusion

Registering an Assumed Name in Minnesota usually is not difficult. It is important, however, to actually do it and follow through with all of the requirements, including the legal notice publication. If you have any questions with respect to registering your business name, contact Sherayzen Law Office to speak with an experienced business lawyer in Minneapolis.

St Paul International Tax Lawyer: Hiring Questions

When you are about to hire a St Paul international tax lawyer to help you with an international tax issue, there are three fundamental questions that you need to ask him.

Hiring St Paul International Tax Lawyer Question #1:  How Will I Be Billed?

Generally, a St Paul international tax lawyer will bill you on an hourly basis, particularly in a tax litigation setting. He will provide you with a general estimate of your future expenses, which, understandably, will vary with the progress of the case. In a tax preparation or sometimes even in a simple tax planning case, a St Paul international tax lawyer may also offer a flat fee option. Where there are complex international tax planning issues involved, however, most St Paul international tax lawyers are likely to charge on an hourly basis. Similarly, while working on international tax compliance issues (Form 3520, 5471, 8891, et cetera) or preparing a tax return (including foreign tax credit and earned foreign income exclusion), St Paul international tax lawyers tend to rely on the hourly fee arrangements.

The more important issue with regard to this question is the manner in which you will be billed. Here, the practice varies among international tax lawyers in St Paul, Minnesota. Some St Paul international tax lawyers may require you to provide a large retainer which is later deposited in a client trust account; the withdrawals from the account are made in conjunction with the work completed and as spelled out in the retainer agreement between the lawyer and the client. If the retainer is later depleted, your St Paul international tax lawyer may ask you to replenish it. Other St Paul international tax lawyers will require a smaller retainer and will then bill you on a monthly basis. If the latter option is proposed by your St Paul international tax lawyer, you should ask for a sufficient time period (usually 10-14 days) to pay your bill. A mix of these options is also available. You will find that St. Paul international tax lawyers, especially solo practitioners, are rather flexible in their choice of the payment mode, but, once the fee agreement is signed, they will be firm in insisting that you comply with the terms of the agreement.

Hiring St Paul International Tax Lawyer Question #2: What percentage of the practice is devoted to the international tax law?

The purpose of this question is two-fold. First, you will figure out whether this St Paul international tax lawyer likes handling cases in your area of law. If a tax lawyer devotes more than 50% of his practice to international tax law, you know that he likes this area of law and will be enthusiastic about your case. This means that, in addition to his general due diligence obligations, this St Paul international tax lawyer will have a professional interest in your case. Second, generally, a St Paul international tax lawyer who devotes 50% or more of his practice to international tax law is likely to have good experience in this area.

Hiring St Paul International Tax Lawyer Question #3: will this St Paul international tax lawyer devote his personal attention to your case?

This question is very important, because you need to make sure that your lawyer personally works on your case. This becomes one of the biggest problems with hiring most mid-size and large law firms, because in those firms, the partner with whom you signed the agreement will generally delegate a large percentage (sometimes virtually all) of his responsibilities to his associates, who are generally less experienced in the area than the partner. In this case, you should insist that the St Paul international tax lawyer who signed the retainer agreement with you devotes his personal attention to your case and delegates only marginal matters to his associates. Generally, solo practitioners or small international firms do not have similar problems.

The other important issue involved in this question is whether your St Paul international tax lawyer is generally responsive to your calls and keeps you up-to-date with respect to the progress of your case. Most international tax lawyers are very busy people; yet, you must insist that you should be able to communicate with them. In my practice, I devote a great deal of energy and time to make sure that my clients do not feel neglected and have the latest information about their case available to them. For example, my firm has a rule of returning most calls before the end of the day.

Contact Sherayzen Law Office for Professional Legal Help With Your International Tax Issues

Minnesota Certificate of Assumed Name: Who Must File

Over the years, as a business lawyer in St. Paul, I have had questions from my clients about whether they are supposed to register their assumed name with the Minnesota Secretary of State. In this short essay, I briefly address this issue.

Generally, pursuant to Minn. Stat. §333.01, Subd. 1, any individual, corporation, limited partnership or limited liability company that conducts business in Minnesota under a name other than their full legal name, must register its Assumed Name with the Office of Minnesota Secretary of State along with a required filing fee.

Here are three most common situations where Minnesota law requires you to file the Certificate of Assumed Name:

1. Any person conducting business under a name which is not his or her true full name (first and last name) must file. For example: Robert Stuart has a plumbing business and operates under the name of “Stuart Plumbing”. In this case, he has to file the Certificate of Assumed Name with the Office of Minnesota Secretary of State. If, on the other hand, in the same situation, Mr. Stuart operates under the name of “Robert Stuart Plumbing”, then he may not need to file the Certificate (absent other circumstances).

2. A corporation, limited partnership or limited liability company conducting business under a name other than the legal name, must file. For example, a company called “Versatile Minneapolis Business Advising and Consulting Services, Inc.” would have to file a Certificate of Assumed Name with the Secretary of State if the company decides to operated under the name of “Versatile Minneapolis Advising Services, Inc.”

3. A partnership must file if the name of the partnership does not include the true full name of each partner.

In addition to the Certificate filing requirements, there are publication of legal notice requirements that must be followed.

Sherayzen Law Office can help you determine whether you need to file a Certificate of Assumed Name (or choose to create a business entity under the name in question), draft the Certificate, and help you comply with all procedures necessary to register your Assumed Name.

Minnesota LLC Formation III: Articles of Organization

In the first two parts of the series, I have mentioned more than once that the Articles of Organization is the key document for LLC formation.

LLC is formed by filing the Articles of Organization with the Office of the Minnesota Secretary of State. The Articles become effective on filing and payment of the $160 (current as of the year 2010) filing fee. Once the Articles are filed and the fee is paid, it is presumed that all conditions precedent have been complied with and the LLC has been organized. The Office of the Secretary of State would then issue a Certificate of Organization to the LLC.

Office of the Minnesota Secretary of State offers a standard fill-in Articles of Organization form which sets out the required elements that must be included in the Articles. What is important to understand is that the Articles may include other elements in addition to what is included in the standard form. I will discuss here the required as well as some of the most important additional provisions that may be included in the Articles by a Minnesota business lawyer.

Required Provisions

Pursuant to Minn. Stat. §322B.115 Subd. 1, the following provisions must be included in the Articles of Organization:

a). Name of the LLC (see specific name requirements in the second part of this series);

b). Address of the Registered Office of the LLC. Note that Minnesota Secretary of State will only accept a Minnesota address. The address should include: street address (or rural route and rural route box number), city, state, and zip code. P.O. Box will not be accepted;

c). Name of the LLC’s Registered Agent (if any);

d). Name and address of each organizer; and

e). A statement of the period of existence for the limited liability company if the LLC is not to have perpetual existence.

Optional Provisions

Minn. Stat. §322B.115 contains a lengthy list of additional provisions that can be modified by and included in the Articles of Organization. Note, that all of these provisions may also be modified by the Member Control Agreement, but only some of the additional powers and rights may be modified in the Bylaws.

The most common provisions included by Minnesota business lawyers in the Articles of Organization are: provision for approval of the transfer of governance rights, denial of cumulative voting, denial of preemptive rights, written action without a meeting, limitations on the liability of governors, and a general statement of purposes and powers. Often, a provision stating that the LLC shall have perpetual existence is included in the Articles. It is not necessary, though, to list in the Articles the powers already granted to an LLC by the Minnesota Limited Liability Company Act

It is also important to point out that the Articles of Organization may contain these additional provisions as long as they are not inconsistent with law.

Conclusion

Sherayzen Law Office can help you determine which additional provisions need to be included in the Articles of Organization, draft the Articles and properly file them with the Minnesota Secretary of State.