Foreign LLC Certificate of Authority / Application for Registration — Texas

FOREIGN LLC CERTIFICATE OF AUTHORITY — APPLICATION FOR REGISTRATION OF FOREIGN LIMITED LIABILITY COMPANY — TEXAS

TABLE OF CONTENTS

1. Overview and When Registration Is Required
2. Pre-Filing Compliance Checklist
3. Application Form 304 — Template
4. Filing Fee Schedule
5. Name Distinguishability and Assumed Name Procedure
6. Post-Qualification Ongoing Compliance
7. Texas Franchise Tax Obligations
8. Registered Agent and Office Maintenance
9. Withdrawal Procedure (Form 612)
10. Texas Practice Notes
11. Sources and References

1. OVERVIEW AND WHEN REGISTRATION IS REQUIRED

Pursuant to Tex. Bus. Orgs. Code (BOC) § 9.001, a foreign filing entity may not transact business in Texas until it registers with the Texas Secretary of State.

A foreign LLC is a "foreign filing entity" if it is organized under the laws of a jurisdiction other than Texas, including another state, the District of Columbia, or a foreign country. The registration requirement applies to foreign LLCs that "transact business" in Texas under BOC § 9.001.

1.1 Activities NOT Constituting Transaction of Business (BOC § 9.251)

1.2 Activities That GENERALLY Require Registration

1.3 Consequences of Failure to Register (BOC § 9.051–9.054)

1.4 90-Day Grace Period

Under BOC § 9.054(a), a foreign LLC that transacts business in Texas for more than 90 days without registering is subject to the late filing fee (computed under § 9.054(b) as the registration fee multiplied by the number of calendar years, partial years counted as full). There is no late filing fee for registration within the first 90 days of doing business.

2. PRE-FILING COMPLIANCE CHECKLIST

☐ Home-state status verified. Confirm LLC is in existence and good standing in its jurisdiction of formation.

☐ Existence statement prepared. Form 304 requires a statement that the LLC currently exists as a valid entity under the law of its jurisdiction of formation. Check the home jurisdiction's records to support that statement.

☐ Name availability checked. Use the Texas Secretary of State’s SOSPortal business search at https://www.sos.state.tx.us/corp/sosda/index.shtml to check existing entity names under BOC Chapter 5; confirm name acceptability with the Secretary of State before filing.

☐ Name compliance with BOC Chapter 5 confirmed. Name must contain a permitted indicator (e.g., "Limited Liability Company," "Limited Company," "L.L.C.," "L.C.," "LLC," "LC"). Name may not contain restricted words (e.g., "Bank," "Trust," "Insurance," "College") without separate regulatory consent.

☐ Assumed Name selected (if needed). If home-state name is not available or unavailable, adopt an assumed name under BOC § 5.051 and file Form 503 (Assumed Name Certificate) with the SOS under Tex. Bus. & Comm. Code § 71.103(a).

☐ Texas registered agent appointed. Either (a) an individual Texas resident with a Texas address, or (b) a registered organization with a Texas registered office address. Obtain the agent's written or electronic consent before filing and retain it with the LLC's records. The authorized signer of Form 304 affirms that consent was obtained; the consent itself need not be submitted.

☐ Texas registered office address identified. Must be a physical street address (no P.O. boxes); typically the same address as the registered agent.

☐ Date the LLC began transacting business in Texas determined. Critical for assessing late filing fees. If business commenced more than 90 days before filing, late fees apply.

☐ Late filing fee budgeted (if applicable). $750 per year (or partial year) of unregistered business activity, in addition to the $750 registration fee.

☐ Series LLC determination. If the home-state LLC is a series LLC, use Form 313, not Form 304. Each series may need to be listed and may be treated separately for Texas franchise tax purposes.

☐ Federal EIN obtained.

☐ Texas Comptroller franchise tax account established. All registered foreign LLCs must be set up for franchise tax reporting. Comptroller assigns Texas Taxpayer ID (11-digit) following SOS registration.

☐ Texas sales and use tax permit obtained (if applicable). Required before making sales of taxable items in Texas.

☐ Local business licenses identified. Texas municipalities (Austin, Houston, Dallas, San Antonio) impose local licensing requirements.

☐ Operating Agreement reviewed.

☐ Filing fee and payment method prepared. $750 filing fee plus optional expedite fees. Payable to "Secretary of State."

☐ Authorized signatory identified. Member, manager, or authorized person.

☐ Texas attorney review completed.

3. APPLICATION FORM 304 — TEMPLATE

Texas Secretary of State
APPLICATION FOR REGISTRATION OF A FOREIGN LIMITED LIABILITY COMPANY
Pursuant to Tex. Bus. Orgs. Code § 9.001 et seq.

Filing Fee: $750.00 — Submit in duplicate if filing by mail or fax.

ENTITY INFORMATION

1. Name of the Foreign Limited Liability Company:

[____________________________________________________________]

1A. Assumed Name in Texas (complete only if name in Item 1 is not available or fails BOC Chapter 5):

[____________________________________________________________]

2. The federal employer identification number (FEIN) of the entity is:

[__-__________]

(May also be obtained later from IRS if not yet issued.)

3. The entity is a foreign limited liability company organized under the laws of:

State, foreign country, or other jurisdiction of formation:

[____________________________________________________________]

Date of formation in that jurisdiction:

[__/__/____]

The period of duration of the LLC is:

☐ Perpetual
☐ Until: [__/__/____]

4. The principal office address of the LLC is:

[____________________________________________________________]
[CITY] [____] [STATE] [____] [ZIP / POSTAL CODE] [____________]
[COUNTRY (if not USA)] [________________________________]

5. REGISTERED AGENT AND REGISTERED OFFICE IN TEXAS

Complete EITHER 5A (individual resident agent) OR 5B (organization registered agent).

5A. The registered agent is an individual resident of Texas:

5B. The registered agent is an organization authorized to transact business in Texas:

Name of organization: [________________________________]
Texas registered office street address: [________________________________]
City: [________________________________] State: TX ZIP: [____________]

Registered-agent consent: Obtain and retain the agent's written or electronic consent before filing. The authorized signer affirms in Form 304's execution section that the agent consented. Do not submit the consent with this application.

6. PURPOSE / NATURE OF BUSINESS

The purpose for which the foreign LLC is registered to transact business in Texas:

[____________________________________________________________]
[____________________________________________________________]

7. DATE THE LLC FIRST TRANSACTED BUSINESS IN TEXAS

The date on which the foreign LLC first began or will begin to transact business in Texas is:

[__/__/____]

8. STATEMENT ON ABILITY TO BE SUED IN HOME JURISDICTION

The foreign limited liability company is, as of the date of this Application, in existence in its jurisdiction of formation.

9. GOVERNING AUTHORITY

(Complete only if the LLC is managed by managers; if member-managed, indicate so.)

☐ The LLC will be managed by managers. Names and addresses of initial managers in Texas:

☐ The LLC will be managed by its members.

10. SUPPLEMENTAL PROVISIONS / INFORMATION

Additional information required by BOC § 9.005 (if any):

[____________________________________________________________]
[____________________________________________________________]

EXECUTION

The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.

Signature: [____________________________________________________________]

Type or print name: [____________________________________________________________]

Title / capacity (Manager, Member, Authorized Officer): [____________________________________________________________]

Date: [__/__/____]

Required attachments:

☐ Application for Registration (Form 304) — submit in duplicate if filing by mail or fax
☐ Form 304 existence statement completed; attach a home-jurisdiction certificate only if separately requested for this filing
☐ $750 filing fee — check or money order payable to "Secretary of State"
☐ Form 503 Assumed Name Certificate (if using assumed Texas name)
☐ Registered agent's written or electronic consent obtained and retained by the LLC; do not attach it to Form 304

Submit to: Texas Secretary of State, Corporations Section, P.O. Box 13697, Austin, TX 78711-3697. Fax: 512-463-5709 (with credit card authorization).

Online filing: Available through SOSDirect at https://direct.sos.state.tx.us/. Credit card payments incur a 2.7% processing fee (total $770.25).

4. FILING FEE SCHEDULE

Payment: Check, money order, LegalEase, or credit card via SOSDirect. Checks payable to "Secretary of State."

Mailing address: Texas Secretary of State, Corporations Section, P.O. Box 13697, Austin, TX 78711-3697.

5. NAME DISTINGUISHABILITY AND ASSUMED NAME PROCEDURE

5.1 Texas Name Requirements (BOC Chapter 5)

The name of the foreign LLC (or assumed Texas name) must:

☐ Include a recognized term of organization for an LLC per BOC § 5.056 ("Limited Liability Company," "Limited Company," "L.L.C.," "L.C.," "LLC," or "LC");
☐ Not contain words or phrases indicating the LLC engages in a business it is not authorized to pursue (BOC § 5.052);
☐ Be distinguishable in the Secretary of State's records from names covered by BOC § 5.053, subject to that section's consent provisions;
☐ Not contain words restricted by other statutes (e.g., "Bank," "Trust," "Insurance," "Engineer," "Architect") without separate regulatory consent.

5.2 Distinguishability Standard

BOC § 5.053 requires the name to be distinguishable in the Secretary of State's records from the names listed there. Check actual availability with the Secretary of State before submitting the registration.

Letters of Consent (Form 509) from an existing entity holding a similar name may, in some cases, permit registration.

5.3 Assumed Name Procedure

If the home-state name is unavailable or fails BOC Chapter 5, the LLC must adopt an assumed name in Texas. Procedure:

5.4 Name Reservation (Optional)

Reserve a Texas name or assumed name for 120 days using Form 501, fee $40. Reservation is not required to file Form 304 but useful when filing is delayed.

6. POST-QUALIFICATION ONGOING COMPLIANCE

6.1 Compliance Calendar Summary

6.2 Annual Franchise Tax / Public Information Report

The Texas Comptroller administers two related annual filings due each May 15:

The No Tax Due Report (former Form 05-163) was DISCONTINUED beginning with the 2024 report year (S.B. 3, 2023 2nd C.S.). An LLC with annualized total revenue at or below the no-tax-due threshold no longer files any franchise tax report — it files ONLY the Public Information Report (Form 05-102) or an Ownership Information Report (Form 05-167). The no-tax-due threshold is $2,650,000 for the 2026 and 2027 report years (it was $2,470,000 for 2024–2025) and is adjusted biennially for inflation; confirm the current figure with the Comptroller.

6.3 Amendment of Registration (Form 406)

File an Amendment of Registration when:

☐ Home-state LLC changes its name (state the new legal name on Form 406 and check its availability in Texas);
☐ Texas assumed name changes;
☐ Jurisdiction of formation changes;
☐ Capacity in which LLC will operate in Texas changes;
☐ Series LLC structure changes (re-file using Form 313).

Fee: $150. Filing officer: Secretary of State.

6.4 Change of Registered Agent or Office (Form 401)

A change must be reported promptly; failure to maintain a registered agent and office is grounds for involuntary revocation under BOC § 9.101.

6.5 Involuntary Revocation (BOC § 9.101–9.106)

Administrative revocation by the Secretary of State (BOC § 9.101) is distinct from court-ordered revocation on Attorney General action (BOC § 9.151–9.162). The SOS may revoke registration if, after mailed notice, the entity fails to timely cure any of the following (before the 91st day, or the 16th day for a dishonored registration fee):

A registration procured or amended through fraud, material misrepresentation in an entity filing, or continued business outside its registered purposes may instead lead to court-ordered revocation on an Attorney General action under BOC §§ 9.151–9.153. These are not § 9.101 administrative grounds.

Franchise tax delinquency follows a separate path. Under Tax Code §§ 171.251 and 171.2515, the Comptroller may forfeit the entity's right to transact business after the applicable notice and cure period for required tax reports, taxes, or penalties. After Comptroller certification, the Secretary of State may forfeit the entity's registration under Tax Code § 171.309 if the forfeited privileges are not revived within 120 days. Cure tax delinquency through the Comptroller and obtain required tax clearance for reinstatement.

Reinstatement after revocation (Form 811) requires correction of the reason for revocation and payment of applicable fees, interest, and penalties. A taxable foreign LLC must include the Comptroller tax-clearance letter under BOC § 9.104(d). The current SOS fee schedule lists a $75 reinstatement fee for a revocation under Chapter 9; foreign LLCs do not file a recurring annual report with the Secretary of State.

7. TEXAS FRANCHISE TAX OBLIGATIONS

7.1 Overview

Texas does not have a corporate or individual income tax. Instead, it imposes a franchise tax (Tex. Tax Code Chapter 171) on entities chartered or registered to transact business in Texas, including foreign LLCs.

7.2 No-Tax-Due Threshold

For the 2026 and 2027 report years (threshold $2,650,000; it was $2,470,000 for 2024–2025):

The threshold is adjusted biennially for inflation. The former No Tax Due Report (Form 05-163) was discontinued beginning with the 2024 report year. Confirm the current threshold with the Comptroller.

7.3 Calculation of Tax (above threshold)

Tax = Lower of:

7.4 EZ Computation (election)

LLCs with annualized total revenue of $20,000,000 or less may elect EZ Computation: 0.331% × total revenue. No deductions.

7.5 Penalties

Failure to file or pay timely:

7.6 Combined Reporting

Affiliated LLCs may be required to file a combined franchise tax report (Tex. Tax Code § 171.1014).

7.7 Sales and Use Tax

If the LLC sells tangible personal property or taxable services in Texas, register for a Sales and Use Tax Permit (Form AP-201). No fee. Texas state sales tax is 6.25% plus local rates up to 2% (total cap 8.25%).

8. REGISTERED AGENT AND OFFICE MAINTENANCE

8.1 Statutory Obligation

BOC § 5.201 et seq. requires every registered foreign LLC to continuously maintain in Texas:

☐ A registered agent — either an individual Texas resident with a Texas address, or a domestic or foreign organization authorized to transact business in Texas with a Texas registered office; AND
☐ A registered office — a physical street address in Texas (no P.O. boxes).

8.2 Changing the Registered Agent or Office

8.3 Consequences of Failure to Maintain Agent

Failure to maintain a registered agent and office is independent grounds for administrative revocation of registration by the Secretary of State under BOC § 9.101(b)(1)(B). The SOS sends notice; the LLC must cure before the 91st day after the notice is mailed.

9. WITHDRAWAL PROCEDURE (FORM 612)

When the foreign LLC ceases to transact business in Texas, it must file a Certificate of Withdrawal to stop accrual of franchise tax and registered-agent obligations.

9.1 Statutory Authority

Tex. Bus. Orgs. Code § 9.011 (Voluntary Withdrawal of Registration; certificate of withdrawal). Under BOC § 9.011(c), a certificate from the Comptroller stating that all taxes administered under Title 2, Tax Code, have been paid must be filed with the certificate of withdrawal.

9.2 Pre-Withdrawal Checklist

☐ All Texas franchise tax reports filed through current period
☐ All Texas sales and use tax returns filed
☐ All Texas employer tax obligations satisfied
☐ Texas Comptroller Certificate of Account Status for Termination/Withdrawal obtained (Form 05-359 or Webfile-generated PDF)
☐ All known Texas creditors and obligations addressed
☐ Member or manager authorization to withdraw documented

9.3 Form 612 — Certificate of Withdrawal

Required content (BOC § 9.011):

Fee: $15.

9.4 Tax Clearance from Comptroller

BOC § 9.011(c) requires a Comptroller certificate stating that all taxes under Title 2 of the Tax Code have been paid before the SOS will accept a Certificate of Withdrawal (the "Certificate of Account Status for Termination/Withdrawal"). Obtain via Webfile:

If Webfile cannot generate the certificate (combined groups, LLPs, etc.), use paper Form 05-359 (Certificate of Account Status). Processing time: 4–8 weeks.

9.5 Effect of Withdrawal

Upon SOS acceptance of Form 612, the LLC's authority to transact business in Texas terminates. Continuing obligations:

☐ LLC remains subject to service of process via SOS for matters accruing during registration;
☐ Franchise tax liability ceases as of the withdrawal effective date;
☐ Registered agent authority is revoked.

10. TEXAS PRACTICE NOTES

10.1 The $750 fee is the highest in the nation. Combined with potential late-registration penalties of $750 per year, Texas is the costliest state in which to be a delinquent foreign LLC. Encourage clients to register PROMPTLY upon commencing Texas activities — within the 90-day grace period.

10.2 Texas Comptroller franchise tax is automatic. Upon SOS registration, the Comptroller opens a franchise tax account and expects annual filings (the Public Information Report at minimum for entities at or below the no-tax-due threshold; the No Tax Due Report was discontinued after report year 2023). Noncompliance can lead to forfeiture of the LLC's right to transact business and statutory debt-liability consequences under Tex. Tax Code §§ 171.2515 and 171.255.

10.3 Personal liability after tax forfeiture (Tex. Tax Code §§ 171.2515, 171.255). These provisions may impose liability on persons who serve as directors or officers of a taxable entity for covered debts created or incurred in Texas after a report, tax, or penalty is due and before privileges are revived. Section 171.255(c) provides defenses for a debt incurred over the person's objection or without knowledge despite reasonable diligence. Evaluate the person's actual role and the debt before assessing exposure.

10.4 Series LLCs. Texas recognizes series LLCs (BOC § 101.601 et seq.). A foreign series LLC must register on Form 313 (not Form 304) and identify each protected series. Series may be treated as separate entities for franchise tax (Tex. Comptroller Rule 3.587(c)). Counsel must analyze before filing.

10.5 Assumed Name Certificate filing. A foreign LLC required to file an assumed name certificate under Tex. Bus. & Comm. Code § 71.101 files it with the Secretary of State under § 71.103(a).

10.6 Public Information Report is publicly searchable. Form 05-102 lists members, managers, and registered agent in a publicly accessible Comptroller database. Plan for privacy implications.

10.7 Service of Process. BOC § 5.201(b)(1) makes the registered agent an agent for service of process, notice, or demand on a foreign LLC. If the registered agent cannot be found at the registered office with reasonable diligence, the Secretary of State is an agent for service under BOC § 5.251. Keep the registered-agent and principal-office addresses current.

10.8 Professional Service LLCs. Texas recognizes PLLCs (BOC § 304). Foreign LLCs providing licensed professional services must qualify as foreign PLLCs and meet additional ownership and licensing requirements; standard Form 304 may not suffice.

10.9 Real Estate. Foreign LLCs holding Texas real property must register before suing for foreclosure, partition, or quiet title. Title insurance underwriters routinely require evidence of current registration.

10.10 Combined Group Considerations. Affiliated LLCs may form a Texas combined group for franchise tax purposes (Tex. Tax Code § 171.1014). Combined reporting can substantially alter tax exposure; coordinate with Texas CPA.

11. SOURCES AND REFERENCES

• Texas Business Organizations Code (BOC), Chapter 9 — Foreign Entities
• BOC § 9.001 — Foreign entities required to register
• BOC § 9.004 — Registration procedure
• BOC § 9.005 — Supplemental information required in application for registration of foreign LLC
• BOC § 9.008 — Effect of registration
• BOC § 9.009 — Amendments to registration (file on or before 91st day after change)
• BOC § 9.011 — Voluntary withdrawal of registration; § 9.011(c) comptroller tax certificate
• BOC § 9.051 — Transacting business/maintaining court proceeding without registration; bar to suit
• BOC § 9.052 — Civil penalty
• BOC § 9.054 — Late filing fee (registration after 90 days)
• BOC § 9.101 — Revocation of registration by Secretary of State
• BOC § 9.151–9.162 — Revocation of registration by court action (AG suit)
• BOC § 9.251 — Activities not constituting transacting business
• BOC Chapter 5 — Names of entities; distinguishability; assumed names; registered agent/office
• Tex. Tax Code Chapter 171 — Franchise tax
• Tex. Tax Code § 171.203 — Public Information Report
• Tex. Tax Code § 171.255 — Officer/member personal liability after forfeiture
• Tex. Bus. & Comm. Code § 71.101 et seq. — Assumed name filings
• Texas Secretary of State, Form 304 (Application for Registration of a Foreign LLC): https://www.sos.state.tx.us/corp/forms/304_boc.pdf
• Texas Secretary of State, Form 304 Instructions: https://www.sos.state.tx.us/corp/instructions/304.shtml
• Texas Secretary of State, Form 313 (Foreign Series LLC): https://www.sos.state.tx.us/corp/forms_boc.shtml
• Texas Secretary of State, Form 612 (Certificate of Withdrawal of Registration): https://www.sos.state.tx.us/corp/forms_boc.shtml
• Texas Secretary of State, Foreign or Out-of-State Entities FAQs: https://www.sos.state.tx.us/corp/foreignfaqs.shtml
• Texas Comptroller, Franchise Tax: https://comptroller.texas.gov/taxes/franchise/
• Texas Comptroller, Certificate of Account Status for Termination/Withdrawal: https://comptroller.texas.gov/taxes/franchise/certificate-letter-request.php
• Texas Comptroller, Franchise Tax Account Status Search: https://comptroller.texas.gov/taxes/franchise/account-status/search.php

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