SENATE CORPORATIONS AND TRANSPORTATION COMMITTEE SUBSTITUTE FOR
SENATE BILL 402
48th legislature - STATE OF NEW MEXICO - first session, 2007
AN ACT
RELATING TO BUSINESS ENTITIES; CHANGING REPORTING PERIODS; CHANGING PENALTIES; AMENDING THE CORPORATE REPORTS ACT AND THE NONPROFIT CORPORATION ACT; AMENDING AND ENACTING SECTIONS OF THE LIMITED LIABILITY COMPANY ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 53-5-6 NMSA 1978 (being Laws 1959, Chapter 181, Section 6, as amended) is amended to read:
"53-5-6. APPLICATION FOR PERIOD OF EXTENSION.--
A. A corporation may, upon application to the public regulation commission by the date upon which a report is required to be filed under the Corporate Reports Act, petition the commission for an extension of time in which to file the required report.
B. For good cause shown, the public regulation commission may extend for no more than a total of [twelve months] thirty days the date on which any return required by the provisions of the Corporate Reports Act must be filed or the date on which the payment of any fee is required for a specific corporation subject to the Corporate Reports Act. No extension shall prevent the accrual of interest as otherwise provided by law.
[C. The public regulation commission shall, when an extension of time has been granted a corporation under the United States Internal Revenue Code of 1986 for the time in which to file a return, grant the corporation the same extension of time to file the required return and to pay the required fees and tax if a copy of the approved federal extension of time is attached to the corporation's annual report. No extension of time granted shall prevent the accrual of interest as otherwise provided by law.
D.] C. Nothing contained in this section shall prevent the collection of any tax, penalty or interest due upon the failure of any corporation to submit the required report."
Section 2. Section 53-5-7 NMSA 1978 (being Laws 1959, Chapter 181, Section 7, as amended) is amended to read:
"53-5-7. FAILURE TO FILE CORPORATE REPORTS--PENALTY.--
A. A domestic corporation required to file [an annual] a biennial corporate report, as provided in the Corporate Reports Act, that fails to submit the report within the time prescribed for a reporting period shall incur a civil penalty of [two hundred dollars ($200)] fifty dollars ($50.00) in addition to the fee for filing the report, such civil penalty to be paid upon filing the report. Sixty days after written notice of failure to file a report has been mailed to the corporation's mailing address as shown in the last corporate report filed with the public regulation commission, the corporation shall have its certificate of incorporation canceled by the commission without further proceedings, unless the report is filed and all fees and penalties are paid within that sixty-day period.
B. A foreign corporation required to file [an annual] a biennial corporate report that fails to submit the report within the time prescribed for any reporting period shall incur a civil penalty of [two hundred dollars ($200)] fifty dollars ($50.00) in addition to the fee for filing the report. The civil penalty shall be paid upon filing the report. Sixty days after written notice of failure to file a report has been mailed to the corporation's mailing address as shown in the last corporate report filed with the public regulation commission, the corporation shall have its certificate of authority to do business in this state canceled by the commission without further proceedings, unless the report is filed and all fees and penalties are paid within that sixty-day period. Nothing in this section authorizes a forfeiture of the right or privilege of engaging in interstate commerce.
C. A domestic or foreign corporation not exempted from filing a supplemental report, as provided in the Corporate Reports Act, that fails to submit the required report within the time prescribed for a reporting period shall incur a civil penalty of [two hundred dollars ($200)] fifty dollars ($50.00) in addition to the fee for filing the report, such civil penalty to be paid upon filing the report.
D. An order of the public regulation commission may be appealed to the district court of Santa Fe county within sixty days of the date it was issued by the commission.
E. If a report required under the Corporate Reports Act is mailed, the public regulation commission shall allow three additional days when considering the postmark as the date of submission when determining if a filing is timely."
Section 3. Section 53-8-83 NMSA 1978 (being Laws 1975, Chapter 217, Section 83, as amended) is amended to read:
"53-8-83. FILING OF ANNUAL REPORT--INITIAL REPORT--SUPPLEMENTAL REPORT--EXTENSION OF TIME.--
A. The annual report of a domestic or foreign corporation shall be delivered to the commission on or before the fifteenth day of the fifth month following the end of its taxable year, except that the first annual report of a domestic or foreign corporation shall be filed within thirty days of the date on which its certificate of incorporation or its certificate of authority was issued by the commission.
B. A supplemental report shall be filed with the commission within thirty days if, after the filing of the annual report required under the Nonprofit Corporation Act, a change is made in:
(1) the name of the corporation;
(2) the mailing address, street address or the geographical location of the corporation's registered office in this state and the name of the agent upon whom process against the corporation may be served;
(3) the name or address of any of the directors or officers of the corporation or the date when the term of office of each expires; or
(4) the corporation's principal place of business within or without the state.
C. Proof to the satisfaction of the commission that, prior to the due date of any report required by Subsection A or B of this section, the report was deposited in the United States mail in a sealed envelope, properly addressed, with postage prepaid, shall be deemed compliance with the requirements of this section. If the commission finds that the report conforms to the requirements of the Nonprofit Corporation Act, it shall file the same. If the commission finds that it does not so conform, it shall promptly return the report to the corporation for any necessary corrections, in which event the penalties prescribed for failure to file the report within the time provided shall not apply, if the report is corrected to conform to the requirements of the Nonprofit Corporation Act and returned to the commission within thirty days from the date on which it was mailed to the corporation by the commission.
D. Upon application by a corporation and for good cause shown, the commission may extend, for no more than a total of [twelve months] thirty days, the date on which a return required by the provisions of the Nonprofit Corporation Act must be filed or the date on which the payment of any fee is required, but no extension shall prevent the accrual of interest as otherwise provided by law. [The commission shall, when an extension of time has been granted a nonprofit corporation under the United States Internal Revenue Code of 1986 for the time in which to file a return, grant the corporation the same extension of time to file the required return and to pay the required fees if a copy of the approved federal extension of time is attached to the corporation's report. An extension shall not prevent the accrual of interest as otherwise provided by law.]
E. Nothing in this section prevents the collection of a fee or penalty due upon the failure of any corporation to submit the required report.
F. No annual or supplemental report required to be filed under this section shall be deemed to have been filed if the fees accompanying the report have been paid by check and the check is dishonored upon presentation."
Section 4. Section 53-19-63 NMSA 1978 (being Laws 1993, Chapter 280, Section 63, as amended) is amended to read:
"53-19-63. FILING, SERVICE AND COPYING FEES.--The [public regulation] commission shall charge and collect:
A. for filing the original articles of organization and issuing a certificate of organization, a fee of fifty dollars ($50.00);
B. for filing amended or restated articles of merger and issuing a certificate of amended or restated articles, a fee of fifty dollars ($50.00);
C. for filing articles of merger, conversion or consolidation and issuing a certificate of consolidation, a fee of one hundred dollars ($100);
D. for filing articles of dissolution or revocation of dissolution, a fee of twenty-five dollars ($25.00);
E. for issuing a certificate for any purpose not otherwise specified, a fee of twenty-five dollars ($25.00);
F. for furnishing written information on any limited liability company, a fee of twenty-five dollars ($25.00);
G. for providing from the commission's records any document or instrument, a fee of one dollar ($1.00) per page, but in [one] no case less than ten dollars ($10.00), and a fee of twenty-five dollars ($25.00) for certification of documents or instruments;
H. for accepting an application for reservation of a name or for filing a notice of the transfer of any name reservation, a fee of twenty dollars ($20.00);
I. for filing a statement of change of address of registered office or registered agent, or both, a fee of twenty dollars ($20.00);
J. for filing an agent's statement of change of address of registered agent for each affected limited liability company, twenty dollars ($20.00);
K. for issuing a registration to a foreign limited liability company, a fee of one hundred dollars ($100);
L. for filing an amendment of the registration of a foreign limited liability company, a fee of fifty dollars ($50.00); [and]
M. for filing an application for cancellation of registration of a foreign limited liability company and issuing a certificate of cancellation, a fee of twenty-five dollars ($25.00);
N. for filing of a biennial report, ten dollars ($10.00); and
O. for failing to submit a biennial report within the time required pursuant to Section 53-19-75 NMSA 1978, a civil penalty of ten dollars ($10.00) in addition to the fee for filing the report."
Section 5. Section 53-19-66.1 NMSA 1978 (being Laws 2001, Chapter 200, Section 74) is amended to read:
"53-19-66.1. ADMINISTRATIVE REVOCATION.--
A. A limited liability company may be revoked by the commission if:
[A.] (1) the limited liability company has failed for a period of thirty days to appoint and maintain a registered agent as required by the Limited Liability Company Act; [or
B.] (2) the limited liability company has failed for a period of thirty days, after change of its registered office or registered agent, to file in the office of the commission a statement of the change as required by the Limited Liability Company Act; or
(3) the limited liability company has failed to file a report for any reporting period within the time required by the Limited Liability Company Act or has failed to pay any fees prescribed by that act when they have become due and payable.
B. No limited liability company may be administratively revoked pursuant to this section unless:
(1) the commission has given the limited liability company not less than sixty days' notice thereof by first class regular mail addressed to the limited liability company's mailing address as shown in the most recent report filed with the commission; and
(2) the limited liability company fails prior to revocation to file the biennial report; pay fees or penalties; appoint and maintain a registered agent; file the required statement of change of office or registered agent; or correct such misrepresentation pursuant to the Limited Liability Company Act."
Section 6. A new section of the Limited Liability Company Act, Section 53-19-75 NMSA 1978, is enacted to read:
"53-19-75. [NEW MATERIAL] BIENNIAL REPORT.--
A. Each domestic and foreign limited liability company authorized to conduct affairs in New Mexico shall file, within the time prescribed by the Limited Liability Company Act, on forms prescribed and furnished by the commission to the limited liability company not less than thirty days prior to the date such report is due, a biennial report setting forth:
(1) the name of the limited liability company and the state or country pursuant to the laws of which it is organized;
(2) the address of the registered office of the limited liability company in New Mexico and the name of its registered agent in this state at such address, and in the case of a foreign limited liability company, the address of its registered office in the state or country pursuant to the laws of which it is organized and the address of the principal office of the limited liability company, if different from the address of the registered office; and
(3) the United States mailing address.
B. The biennial report shall be signed by an authorized agent, member or manager. If the limited liability company is in the hands of a receiver or trustee, the biennial report shall be executed on behalf of the limited liability company by the receiver or trustee. A copy of the biennial report shall be maintained at the limited liability company's principal place of business as contained in the report and shall be made available to the general public for inspection during regular business hours."
Section 7. A new section of the Limited Liability Company Act, Section 53-19-76 NMSA 1978, is enacted to read:
"53-19-76. [NEW MATERIAL] FILING OF FIRST AND BIENNIAL REPORTS.--The report of a domestic or foreign limited liability company shall be delivered to the commission on or before the fifteenth day of the fifth month following the end of its taxable year and biennially thereafter, except that the first report of a domestic or foreign limited liability company shall be filed within thirty days of the date on which its certificate of organization or its certificate of registration was issued by the commission."
Section 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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