Post edited 8:16 am – December 9, 2009 by Luke Maurits
Okay, I've read through this page again with a view to figuring out exactly what questions we need to ask the NY Department of State before we can move on with incorporation.
1) I am not sure brmj's transient status of NY residency is a problem. In fact, nothing on there suggests that the incorporator has to live in NY. We can ask to make sure, though.
2) The only thing I have found that definitely does need to be in NY is this:
Paragraph Fifth must indicate the county within New York State where the office of the corporation will be located. Enter only the name of a county in New York State. Do not include the street address. In New York City, the borough of Manhattan is in New York County, the borough of Brooklyn is in Kings County and the borough of Staten Island is in Richmond County. Bronx and Queens are boroughs and counties. Please note that such office need not be a place where activities are conducted by the corporation.
What is enough to constitute an office? Can brmj's dorm room constitute an office? Note that nowhere on the form do you apparently have to provide the actual street address of this office, merely the county. This means they obviously don't plan on raiding or inspecting the office in any circumstances. I don't know what they want this for, or how they even verify your answer. Perhaps we can simply ask "if we plan on operating purely online and don't really need a physical office, can we just supply the County in which one of the corporation members lives?"/p>
3) The other thing we need to consider is this:
The corporation must designate the Secretary of State as its agent for service of process. Complete Paragraph Seventh by providing an address within the United States to which the Secretary of State may mail a copy of any process received. "Process" means the papers that acquire jurisdiction of the corporation in a legal action. To avoid a default judgment, the corporation should keep the address for service of process current by filing a Certificate of Change or Certificate of Amendment, as appropriate.
Note that this address can be anywhere in the US, not just NY. It makes sense to me to use a PO box for this. This means we need to either decide on one of those online mail scanning PO box services, or someone in the US, any state, needs to volunteer to open a PO box nearby their home for this purpose. I am sure Rocket will be happy to transfer the cost of the service out of our current PayPal donations. Point of interest: presumably we can't open a PO box in the name "CSTART" until we file (but it would be worthwhile checking this out), so this will have to be in someone's name. However, I suspect it is easy to ammend this detail later, probably for $10 or so, so we can change it to the name of CSTART later. Alternatively, we could just put down brmj's or noumena's regular addresses for now and change to a PO box later.
So, to summarise:
- Somebody needs to ask the NY State Department what restrictions exist on an incorporator's residence in NY.
- Somebody needs to ask the NY State Department exactly what constitutes an acceptable office for the corporation so we know which County to specify.
- We need to decide on a mailing address, anywhere in the US, to use as the address that the NY state government will send stuff to if anybody wants to sue us.
Once we have these issues sorted, somebody should talk to the IRS and figure out exactly what wording needs to go in our incorporation form to enable us to get 501(c)(3) status. Once we know that, we would be in a position to write out a draft form and send it to the Department of Education for approval. Then we could incorporate, then we could get our 501(c)(3) on.
It's not exactly an easy path, but I think at least now we have the path laid out clearly infront of us.
Gigantic caveat: my discussions on Reddit with a lawyer who knows this part of the law well have been ongoing. He seems to think that instead of incorporating we should create a Limited Liability Company or a Limited Liability Partnership instead – he has suggested this after I provided him with a rough description of how we want our legal entity to operate. Right now I know very little about LLCs or LLPs but I am going to read up on them to see if they would be more appropriate. We may want to consider those options instead.
That said, there is no harm in people asking those questions of the NY state people now so that if the LLC or LLP options turn out to be no good we still have momentum in our original direction, so if you were thinking of taking care of that, feel free to still do so. The people to ask questions about this are:
Contacting the Division of Corporations
If you require technical advice or have any questions regarding the filing of your Certificate of Incorporation, please contact the Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231. The telephone number of the Division of Corporations is (518) 473-2492. The Department of State’s website address is http://www.dos.state.ny.us. The email address is [email protected].