Law Blog

BUSINESS: Company Formation (Florida)

The purpose of this article is to provide an overview of the company formation process in Florida for first-timers.

One of the great things about doing business in the US is how quick, easy and inexpensive it is to form a company.  Florida is no exception.  And, as one of the States that has good weather and no income tax, Florida has become a target destination for entrepreneurs, both domestic and foreign.

Register with the State Department

As with all States, the Florida Department of State requires business entities of all types to be registered with its Corporations Division.  The process can be done online at www.sunbiz.org .  The process can also be done by mailing in paper forms, but it takes much longer.

The information you will need to provide depends a bit on what form you want your company to take — i.e. limited liability company (LLC), corporation (Inc.), limited partnership (LP), etc.  However, there are some basics that apply to all forms:

Company name

You may find it a little more difficult than expected to select a company name since there is nothing new under the sun.  The name you give your company cannot be “confusingly similar” to that of an existing company.

So, you should first do a Clearance Search to see if there is another active company with the same, or very similar, name as the one you want to use.  (Use the “Search Records” tab at the top of the website)

Otherwise, you may go through the entire process only to have your registration rejected.

Registered Agent

Every business entity must have a registered agent with a physical address in Florida.  The registered agent’s job is to receive official correspondences, such as lawsuits and communications from governmental entities.

The company may have an out-of-state office and mailing address.  And, the owners/officers may provide out-of-state addresses as well.  But, the company must have an in-state registered agent.

Owners & Officers

The owners may be listed in the company’s registration, but it not required.  Depending upon the nature of the business, and any confidentiality concerns, you can decide whether it makes sense to name the owners in the registration or not.  For example, if it is an owner-operated company, you may want to list the owner because doing so will make it easier to open bank accounts, etc.  But, if it is a company with employees, there may not be any good reason to expose the owner’s name in the public record.  (Click here for tips on limiting liability)

At a minimum, though, you will have to list a manager or director.  You have to give the State the name of the person or entity with authority to take decisions for the company.

That said, neither owners nor officers have to be human beings.  You could name another company or trust as the owner and/or officer.  That is a technique sometimes used for asset protection and/or flexibility.  Be aware, though, that ultimately a person has to sign on behalf of the entity that is acting as owner/officer, so somebody’s name will have to appear in the registration.

Governing Documents

In the US, the two most fundamental documents of a business are generically called the “Articles” and the “Bylaws.”

Articles

If you register your business in Florida, the State Department will automatically generate Articles based on the information you provide through the registration process.  After all, the Articles are simply the most basic information about the company.  Your company’s Articles will be available for download on the Department of State’s website.

Do not be confused by the title “Articles of Incorporation” versus “Articles of Organization.”  The difference is merely due to the form of the company.  Only corporations can “incorporate.”  So, if you create an LLC, for example, your document will be called “Articles of Organization.”  It’s the same thing, though.

Bylaws

Similarly, the actual title of this document will vary depending upon the form of your company:

  • Operating Agreement
  • Shareholder Agreement
  • Corporation Charter
  • Partnership Agreement

These are just different names for document that contains the details of your company’s governing rules.  This document is not generated automatically by the State Department, nor does it appear on the State Department’s website.

The bylaws will generally be prepared by an attorney.  Because bylaws are not required by the State Department, so business owners do not bother with them.  This, however, is a terrible idea.

If the company has partners or investors, then operating without bylaws is like jumping out of a plane without a parachute.  And, as a more immediate matter, all banks I know of require a copy of the bylaws in order to open a company bank account.

Taxpayer ID

This is not the place to get into taxation issues, such as whether the company will be “pass through,” taxed as a partnership, S-corp, C-corp, etc.  That is a discussion to be had with your tax attorney or accountant.  Moreover, there is no need to make those decisions at this point in the process.  First, just get the company registered with the State Department.

Once that is done, you will need to apply for an Employer Identification Number (EIN).  In many cases, that can also be done online here.

If nobody associated with the company has a Social Security Number or ITIN, then the application for an EIN cannot be done online.  That is a bit unfortunate because applying by fax or mail can take much longer.

From a legal point of view, there is no urgency to get the EIN.  As long as the company has a taxpayer number by the time it is ready to file a tax return, you will be fine.  However, most companies need a bank account sooner rather than later.  And, all banks I have seen require an EIN in order to open a business account.

Local Business License

Rather annoyingly, most cities and counties in Florida use alternate terms for describing a business or occupational license.  Some municipalities in our area use the term “Tax Receipt.”  Just the same, if you call or go to the website, you can get the information you need by asking for a “business license.”  Everyone knows what you mean.  It is a small fee you will need to pay the local municipality(s) where your business is located.

Do be aware that you will probably need to pay a separate fee to both the city and the county where your business has its address.

Miscellaneous

With just the items listed above, you will have the basics in place to start a business in Florida.  Obviously, if your particular business requires licenses or permits, those are separate matters you will need to address in order to legally operate your business.

There are some strategic decisions to be made along the way, which are more difficult to address in a generic article.  That is why you should always consult an attorney along the way.  You will find additional information here describing some of the key considerations.

~ Jeff Harrington, Esq.