10)  Can the Secretary of State’s Office investigate businesses?

No. Pursuant to statute, the Secretary of State’s Office is a ministerial office. This means that the Secretary of State’s Office is a filing office that has no authority to investigate complaints against businesses. If you are a consumer complaining against a South Carolina business, you should contact the South Carolina Department of Consumer Affairs at (803) 734-4200 orhttp://www.scconsumer.gov/ or the Better Business Bureau atwww.bbb.org. If you have a complaint against a business that involves potential criminal activity, you should contact local law enforcement. 

11)  Can the Secretary of State’s Office investigate nonprofit corporations?

The Secretary of State’s Office has the authority to investigate charitable organizations. If a nonprofit is also a charitable organization, the Secretary of State’s Office may look into the matter. For more information on charitable organizations, please visit the Public Charities Division. If the nonprofit is not acting as a charitable organization, the Secretary of State would have no authority to investigate the nonprofit. The South Carolina Attorney General is given the authority to investigate nonprofits under the following section in the Nonprofit Act §33-31-171.

12)  Does the Secretary of State’s Office regulate Homeowner’s Associations?

No. Homeowner’s Associations that choose to incorporate as a nonprofit corporation file Articles of Incorporation with the Secretary of State’s Office. The Secretary of State’s Office can provide you with copies of any business filings the Homeowner’s Association may have filed with the office (please see question #2 for more information on requesting copies of filed documents). The Secretary of State does not have any authority to regulate Homeowner’s Associations, mediate disputes between members of Homeowner’s Associations or force the Homeowner’s Association to take any action. Homeowners may need the assistance of counsel to resolve any disputes.

13)  Do I need to file my sole proprietorship with the Secretary of State’s Office?

No. Sole proprietorships do not have to file with the Secretary of State’s Office. Business corporations, nonprofit corporations, limited partnerships, limited liability partnerships and limited liability companies are the only business entities that must file with the Secretary of State’s Office.

14)  Do I need to file my partnership with the Secretary of State’s Office?

No. General partnerships do not have to file with the Secretary of State’s Office. Business corporations, nonprofit corporations, limited partnerships, limited liability partnerships and limited liability companies are the only business entities that must file with the Secretary of State’s Office.

15)  Can I get a retail license or business license from the Secretary of State’s Office?

No. Business licenses are issued at the county or city level. All counties and cities vary in their requirements, so you should check with your particular county or city to get additional information.  The South Carolina Association of Counties’ Website (http://www.sccounties.org/index.htm) has contact information for all of the counties in South Carolina.  Retail licenses are issued by the South Carolina Department of Revenue (http://www.sctax.org/default.htm).  Additionally, professional licenses (ex: contractor’s licenses, certified public accountant licenses) are issued by the South Carolina Department of Labor, Licensing and Regulation (http://www.llr.state.sc.us/).

16)  Does the Secretary of State’s Office file DBA (doing business as) names?

No. The Secretary of State’s Office does not register DBA or trade names. The Secretary of State’s Office only keeps a registry of legal names of business entities that are organized under the laws of South Carolina or have authority to transact business in the state of South Carolina.

17)  How can I tell if a name is available for use by my entity?

You may check the names of all entities registered with the Secretary of State’s Office by searching the corporate database (Search Business Filings). An entity name must be grammaticallydistinguishable from all other names filed with the office. Different corporate endings are not considered grammatically distinguishable. For example, ABC, Inc. is not considered grammatically distinguishable from ABC, LLC. 

18)  Do I need to reserve a name if I am ready to incorporate or organize my entity?

No. If you are ready to incorporate or organize your business entity you may go ahead and file the articles of incorporation or organization. You should only reserve a name if you are not yet ready to incorporate or organize, but you want to make sure that the name you have chosen is reserved for your use. A name reservation is only good for a nonrenewable 120-day period. For additional information about forms and fees, please visit ourLibrary of Forms and Fees page.

19)  If I file the name of a business entity with the Secretary of State’s Office, can anyone else use my business name?

The filing of a business name with the Secretary of State does not, in and of itself, provide an exclusive right to use the name. Some businesses choose not to incorporate, therefore the Secretary of State would have no control over the names that these businesses decide to use. The Secretary of State’s Office will not allow an entity to incorporate or organize with a name that is identical to a name that the office already has in its database. Additionally, the Secretary of State only acts as a filing office, therefore it is unable to mediate disputes involving names.  The question of who owns a business name is a very difficult question that must be settled in a civil setting, often with the assistance of counsel. Individuals who wish to trademark a business name should contact the Trademarks Division of the Secretary of State’s Office.

20)  How do I change the name of my business entity?

Articles of Amendment must be filed to change the name of a business entity.

21)  What is a domestic entity?

A domestic entity is an entity that is organized under the laws of South Carolina.

22)  What is a foreign entity?

A foreign entity is an entity that is organized under the laws of another state or jurisdiction. A foreign entity may apply for a Certificate of Authority to transact business in South Carolina.

23)  When should my foreign entity apply for a certificate of authority?

If your entity will be transacting business in the State of South Carolina, it must apply for a Certificate of Authority. The statutory sections that define the guidelines for transacting business are as follows:

Business Corporations -   §33-15-101

Nonprofit Corporations - §33-31-1501

Limited Partnerships - §33-42-1690

                Limited Liability Partnerships - §33-41-1210

                Limited Liability Companies - §33-44-1003

If you are unable to determine whether or not you should file for a Certificate of Authority after reviewing the above referenced sections, you will need to consult private legal counsel. The Secretary of State's office cannot provide legal advice concerning an entity’s need to apply for a Certificate of Authority.

24)  What is a fictitious name form?

A fictitious name form should be used by a foreign entity when their legal name is not available for use in South Carolina. This is not the registration of a DBA or trade name. For additional information on forms and fees, please visit our Library of Forms and Fees page. 

25)  If my foreign entity is no longer transacting business in South Carolina, what do I need to do?

Foreign entities that are no longer transacting business in South Carolina should file a Certificate of Withdrawal/Cancellation or a Surrender of Authority form. The exact form that should be filed depends on the type of entity. For additional information on forms and fees, please visit our Library of Forms and Fees page.

26)  What is a registered agent?

The registered agent is the person authorized to accept service of process or other legal documents for another person.

27)  Who can be a registered agent?

Generally, a registered agent can be a natural person, a business corporation, nonprofit corporation or a limited liability company. There are specific rules that apply to registered agents for each entity type. Please make sure that you review these rules before naming a registered agent. 

28)  Is the registered agent the owner of the entity?

The registered agent may be the owner of the entity, but he or she does not have to be. The registered agent may just be the individual appointed to accept service of process on behalf of the company without having any involvement with ownership or operational functions.

29)  Do I have to list a physical address for the registered agent?

Yes. The registered agent’s address must be listed as a physical address. Our office will not accept registered agent addresses that use a post office box.

30)  How can I change the registered agent listed for my business entity?

You can submit a Change of Registered Agent or Registered Office form with a $10 filing fee. Remember, the new registered agent must sign the form showing their agreement to be the registered agent. For additional information on forms and fees, please visit our Library of Forms and Fees page.

31)  How can I resign as the registered agent of a business entity?

Submit a Resignation of Registered Agent form with the appropriate filing fee to the Secretary of State’s Office. For additional information on forms and fees, please visit our Library of Forms and Fees page.

32)  What is an incorporator?

The incorporator is the person who submits the articles of incorporation for a corporation to the Secretary of State’s Office for filing.

33)  Is the incorporator the owner or a director of the entity?

The incorporator may be the owner of the entity, but he or she does not have to be. The incorporator may just be the individual who assists in the formation of the corporation without having any involvement with subsequent ownership or operational functions.

34)  How many incorporators are needed to file the articles of incorporation?

Only one incorporator is needed, but there may be more than one. Regardless of how many incorporators there are, all incorporators who are listed on the Articles of Incorporation must sign the articles in order for the office to file them.

35)  What is an organizer?

The organizer is the person who submits the Articles of Organization for an LLC to the Secretary of State’s Office for filing.

36)  Is the organizer the owner of the entity?

The organizer may be the owner of the entity, but he or she does not have to be. The organizer may just be the individual who assists in the formation of the LLC without having any involvement with subsequent ownership or operational functions.

37)  How many organizers are needed to file the articles of organization?

Only one organizer is needed, but there may be more than one. Regardless of how many organizers there are, all organizers who are listed on the Articles of Organization must sign the articles in order for the office to file them.

38)  What is a CL-1 form and when should I use it?

A CL-1 form is a Department of Revenue form that must be filed with the Articles of Incorporation for all business corporations and nonprofit corporations which are formed as political associations. The office will not accept these filings without the CL-1 Form.

39)  How do I get a Federal Employer Identification Number?

Federal Employer Identification Numbers (FEINs) are issued by the federal government. To apply for an FEIN click on the following link http://www.irs.gov/pub/irs-pdf/fss4.pdf

All documents filed for business corporations should be properly executed pursuant to S.C. Code Ann. §33-1-200(f).  Documents filed with the Secretary of State should be executed by (1) the Chairman of the Board of Directors, president or another of its officers; (2) if directors have not been selected or the corporation has not been formed, by incorporators; or (3) if the corporation is in the hands of a receiver, trustee or other court appointed fiduciary, by that fiduciary. 

41)  Does a South Carolina attorney have to sign the Articles of Incorporation for a business corporation organized under the laws of South Carolina?

Yes. The Articles of Incorporation should be signed by an attorney licensed to practice in the state of South Carolina.

42)  In general, who should sign forms that are to be filed with the Secretary of State for nonprofit corporations?

All documents filed for nonprofit corporations should be properly executed pursuant to S.C. Code Ann. §33-31-120(f). Documents filed with the Secretary of State should be executed by (1) the Presiding Officer of its Board of Directors of a domestic or foreign corporation, its president or another of its officers; (2) if directors have not been selected or the corporation has not been formed, by an incorporator; or (3) if the corporation is in the hands of a receiver, trustee or other court appointed fiduciary, by that fiduciary. 

43)  Is my nonprofit automatically tax exempt when I file articles of incorporation with the Secretary of State’s Office?

No.  Incorporating as a nonprofit under the state law only gives you approval to operate as a nonprofit corporation in the state of South Carolina. In order to become a tax-exempt organization you must apply to the Internal Revenue Service using Form 1023. IRS Publication 557 can assist you with the process of applying for tax exemption. Please visit the IRS Website at www.irs.gov. 

44)  Are nonprofit corporations required to have members?

No. Nonprofit corporations are not required to have members. A member is defined by §33-31-140(23) as a person who is entitled to vote on more than one occasion for a director or directors or for other matters which may require approval by the members.

45)  What is the difference between a public benefit, mutual benefit and religious nonprofit corporation?

A public benefit corporation is formed for the benefit of society. Typically, if you are going to apply to receive 501(c)(3) tax-exempt status from the Internal Revenue Service, you are going to choose to be a public benefit corporation. Again, 501(c)(3) status is  determined by the IRS.  To find out more information about tax exemptions, please visit the IRS Website atwww.irs.gov.  A mutual benefit corporation is one that benefits a specific group of people, most often their membership. Examples of mutual benefit corporations would be homeowner’s associations or social clubs. A religious nonprofitis organized primarily or exclusively for religious purposes.

46)  If my nonprofit is a public benefit or religious benefit do I have to answer question number 6 on the Articles of Incorporation?

Yes. If the nonprofit corporation is a public benefit or religious benefit, you must complete either Section “a” or Section “b”. If you are going to apply for 501(c)(3) status, you must complete Section "a."  If you are not applying for 501(c)(3) status, you may complete Section "b."  Assets may in no event be distributed to members of the organization. 

47)  If my nonprofit is a mutual benefit do I have to answer question number 7 on the Articles of Incorporation?

Yes. If the corporation is mutual benefit you must check either Box “a” or Box “b”. By checking Box “a” you are stating that upon dissolution, the assets of the corporation will be distributed to the members, or if there are none, then to the people that the corporation holds itself out as benefiting.

48)  In general, who should sign forms that are to be filed with the Secretary of State for limited partnerships?

Original certificates of limited partnership should be signed by all general partners. There are specific signing procedures for other documents. Please review S.C. Code of Laws §33-42-240 for all signing procedures.

49)  In general, who should sign forms that are to be filed with the Secretary of State for limited liability partnerships?

Pursuant to S.C. Code of Laws §33-41-1110, an application for registration of an LLP should be signed by a majority in interest of the partners or by one or more partners who are authorized to execute the document.

50)  In general, who should sign forms that are to be filed with the Secretary of State for limited liability companies?

All documents filed for limited liability companies should be properly executed pursuant to S.C. Code Ann. §33-44-205(a),which states, “Except as otherwise provided in this chapter, a record to be filed by or on behalf of a limited liability company in the office of the Secretary of State must be signed in the name of the company by a (1) manager of a manager-managed company; (2) member of a member-managed company; (3) person organizing the company, if the company has not been formed; or (4) fiduciary, if the company is in the hands of a receiver, trustee or other court-appointed fiduciary.” 

51)  Do I have to list the members of an LLC?

There is no statutory requirement that the members’ names be listed on the Articles of Organization.

52)  What is the difference between a term and at-will LLC?

A term company is defined in §33-44-101(19) as an LLC in which its members have agreed to remain members until the expiration of the term specified in the articles of organization. A termination date must be included in this item. A term company will dissolve on the date listed as the termination date. If this box is not checked, your LLC will operate as an at-will company. An at-will company does not have a specific date upon which it will terminate. Please be aware that there are different default rules for term and at-will companies that should be considered when organizing the LLC. 

53)  What does it mean when the Secretary of State’s Website lists a business entity as in forfeiture?

This means that an entity has failed to meet certain statutory guidelines and the Secretary of State’s Office has administratively dissolved the entity. An entity that is administratively dissolved is not in good standing.

54)  What does it mean if my business entity has been administratively dissolved?

By statute, the Secretary of State’s Office can administratively dissolve an entity for failure to comply with certain requirements. An entity that is administratively dissolved is not in good standing. The following is a list of the laws related to administrative dissolution by entity type:

Business Corporation - §33-14-200

Nonprofit Corporation - §33-31-1420

Limited Liability Company - §33-44-809

55)  If my business entity has been administratively dissolved by the Secretary of State’s Office, how can I get it reinstated?

If your entity is a business corporation, you may reinstate at any time after the dissolution by filing an Application for Reinstatement of a Corporation Dissolved by an Administrative Action. Nonprofit corporations and LLCs must file for reinstatement within two years of the date of the administrative dissolution. If your entity has been administratively dissolved due to failure to file a tax return to the South Carolina Department of Revenue (DOR), you must first contact the DOR at (803) 896-1730. The DOR will assist you in curing any filing deficiencies with their office. Once you have complied with the DOR, they will issue a Certificate of Tax Compliance. This certificate should be filed with the Secretary of State’s Office with the Application for Reinstatement. Please see our Library of Forms and Fees page for additional information. 

56)  I am ready to end the existence of my business, what documents do I need to file with the Secretary of State’s Office?

If your business is a business corporation or nonprofit corporation, you should file the Articles of Dissolution. If your business is a limited liability company, you should file Articles of Termination. If your business is a limited liability partnership, you should file Articles of Dissolution. If your business is a limited partnership, you should file a Certificate of Cancellation. You may need to contact an attorney or CPA before dissolving and winding up all business. There may be tax consequences or other special considerations that may need to be explored before you simply file the paperwork with the Secretary of State’s Office.

57)  What is the time period for filing a revocation of dissolution?

If you have filed Articles of Dissolution for a business corporation or nonprofit corporation and decide that you now want to revoke that dissolution, you must file a Revocation of Dissolution within 120 days of the filing of the dissolution. For additional information about forms and fees, please visit our Library of Forms and Fees page.

58)  How can I convert my business entity into another form?