NAC: CHAPTER 78 - PRIVATE CORPORATIONS

[Rev. 8/22/2014 3:53:55 PM]

[NAC-78 Revised Date: 9-14]

CHAPTER 78 - PRIVATE CORPORATIONS

GENERAL PROVISIONS

78.005 Electronic filing of records.

NAME OF CORPORATION

78.010 Considerations in determining whether proposed name of corporation is distinguishable from name of existing business entity.

78.020 Distinguishing proposed name from name of existing business entity: Use of certain words or abbreviations following main body of name.

78.030 Distinguishing proposed name from name of existing business entity: Addition, omission or substitution of distinctive lettering or typeface, spaces, capitalized letters, punctuation marks, symbols or signs.

78.040 Distinguishing proposed name from name of existing business entity: Use of articles.

78.050 Distinguishing proposed name from name of existing business entity: Differences in spelling.

78.060 Distinguishing proposed name from name of existing business entity: Words from foreign languages and English language with same meaning or similar spelling.

78.070 Distinguishing proposed name from name of existing business entity: Variations in beginning or ending of root words.

78.080 Distinguishing proposed name from name of existing business entity: Use of prepositions.

78.090 Distinguishing proposed name from name of existing business entity: Use of abbreviated or unabbreviated words.

78.100 Distinguishing proposed name from name of existing business entity: Use of numerals or words representing numbers.

ANNUAL LIST

78.300 Definitions.

78.310 “Alternative due date” defined.

78.320 “Due date” defined.

78.330 Selection of alternative due date for filing annual list: Form; contents.

78.340 Selection of alternative due date by corporation in terminated status.

78.350 Form for selection of alternative due date to be submitted with annual list; deadline for submission.

78.360 Acceptance and filing of form for selection of alternative due date and annual list.

78.370 Notice to registered agent of intent to select alternative due date.

78.380 Limitation on selection of alternative due date; exception.

PENALTY FOR PURPORTING TO DO BUSINESS WITHOUT FILING ARTICLES OF INCORPORATION

78.400 Activities subject to fine.

78.405 Filing of complaints.

78.410 Duties of Secretary of State upon receipt of complaint.

78.415 Determination regarding sufficiency of complaint by Secretary of State: Notice of deficiencies; demand for response; referral for legal proceedings.

GENERAL PROVISIONS

NAC 78.005 Electronic filing of records. (NRS 78.026)

1. The Secretary of State may develop or approve an electronic process for the electronic filing of records authorized or required to be filed with the Secretary of State pursuant to chapter 78 of NRS.

2. If the Secretary of State has developed or approved an electronic process and the electronic process is in place and available for use in the Office of the Secretary of State:

(a) A person may use the electronic process to file with the Secretary of State any record authorized or required to be filed with the Secretary of State pursuant to chapter 78 of NRS; and

(b) The Secretary of State will accept a record filed with the Secretary of State through the use of the electronic process if the record contains all the information required for filing and is accompanied by the appropriate fee and any applicable penalty.

3. The Secretary of State may reject a record filed with the Secretary of State through the use of an electronic process developed or approved by the Secretary of State if:

(a) The statutory requirements for filing the record have not been satisfied;

(b) The appropriate fee has not been submitted;

(d) The record contains a virus or may otherwise compromise the security of the electronic process.

4. Failure by the Secretary of State to receive a record filed through the use of an electronic process does not relieve the person who attempted to file the record from any requirement to file the record, pay the appropriate fee or incur an applicable penalty.

5. As used in this section:

(a) “Electronic filing” means the submission of records to the Secretary of State by an electronic process and the processing of such records by the Secretary of State by an electronic process.

(b) “Electronic process” means any electronic process for the electronic filing of records authorized or required to be filed with the Secretary of State pursuant to chapter 78 of NRS.

(Added to NAC by Sec’y of State by R068-11, eff. 12-30-2011)

NAME OF CORPORATION

NAC 78.010 Considerations in determining whether proposed name of corporation is distinguishable from name of existing business entity. (NRS 78.039, 78.185) To determine whether a proposed name of a corporation is distinguishable from the name of an existing business entity, the Secretary of State will consider, without limitation, the rules set forth in NAC 78.020 to 78.100, inclusive.

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.020 Distinguishing proposed name from name of existing business entity: Use of certain words or abbreviations following main body of name. (NRS 78.039, 78.185)

1. If one or more of the following words or abbreviations follow the main body of the proposed name of a corporation, such words or abbreviations shall be deemed not to be part of the proposed name for the purposes of determining whether the proposed name is distinguishable from the name of an existing business entity:

(a) Business Trust, B.T. or BT;

(b) Chartered or Chtd.;

(d) Corporation or Corp.;

(e) Incorporated, Incorp. or Inc.;

(f) Limited or Ltd.;

(g) L.C. or LC;

(h) Limited-Liability Company, L.L.C. or LLC;

(i) Limited-Liability Limited Partnership, L.L.L.P. or LLLP;

(j) Limited-Liability Partnership, L.L.P. or LLP;

(k) Limited Partnership, L.P. or LP; and

(l) Professional Corporation, Professional Corp., Prof. Corp., P.C. or PC.

2. If one or more of the following words follow the main body of the proposed name of a corporation, such words shall be deemed to be part of the proposed name for the purposes of determining whether the proposed name is distinguishable from the name of an existing business entity:

(a) And Associates;

(b) Association;

(d) Club;

(e) Consortium;

(f) Enterprise or Enterprises;

(g) Family;

(h) Foundation;

(i) Group;

(j) Hotel;

(k) Motel;

(l) Organization;

(m) Partners;

(n) Resort; and

(o) Unlimited.

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000; A by R069-11, 12-30-2011)

NAC 78.030 Distinguishing proposed name from name of existing business entity: Addition, omission or substitution of distinctive lettering or typeface, spaces, capitalized letters, punctuation marks, symbols or signs. (NRS 78.039, 78.185)

1. The addition or omission of distinctive lettering or typeface, a space, a capitalized letter, a symbol, a sign, a punctuation mark or any other mark does not make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

(a) “ABC, Inc.” is not distinguishable from “A.B.C., Inc.”;

(b) “Intellico” is not distinguishable from “Intelli, Co.”;

(d) “Nevada.com, Inc.” is not distinguishable from “Nevada Com, Inc.”

2. The substitution of distinctive lettering or typeface, a space, a capitalized letter, a symbol, a sign, a punctuation mark or any other mark for a word does not make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

(a) “A-plus” is not distinguishable from “A+”;

(b) “Frustrated, Inc.” is not distinguishable from “Frustrated, Inc.”;

(d) “Marketing Ahead” is not distinguishable from “marketing ahead.”

3. For the purposes of this section:

(a) “Distinctive lettering or typeface” includes, without limitation, underscoring, italics, boldface, different font styles and different font sizes;

(b) “Punctuation mark” includes, without limitation, a comma, a semicolon, a colon, a dash, a period, an exclamation point, a question mark, an apostrophe, single quotation marks, double quotation marks, parentheses, braces, brackets and any other similar mark; and

(c) “Symbol” or “sign” includes, without limitation, #, $, %, ^, &, *, ~, <, >, +, -, =, _, / and \, and any other similar symbol or sign.

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.040 Distinguishing proposed name from name of existing business entity: Use of articles. (NRS 78.039, 78.185) The addition or omission of a definite or an indefinite article, such as “the,” “a” or “an,” does not make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

1. “A Clear View, Inc.” is not distinguishable from “Clearview, Inc.”; and

2. “The Action Co.” is not distinguishable from “Action Co.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.050 Distinguishing proposed name from name of existing business entity: Differences in spelling. (NRS 78.039, 78.185) A difference in spelling, regardless of whether there is a phonetic similarity between the proposed name of the corporation and the name of an existing business entity, may make the proposed name distinguishable from the name of an existing business entity. For example:

1. “Capital Cleaner” is distinguishable from “Capitol Cleaners”;

2. “Cool Cuts” is distinguishable from “Kool Kuts”;

3. “Great Picks” is distinguishable from “Great Pix”;

4. “Jones Tires” is distinguishable from “Joan’s Tires”; and

5. “Write, Inc.” is distinguishable from “Right, Inc.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.060 Distinguishing proposed name from name of existing business entity: Words from foreign languages and English language with same meaning or similar spelling. (NRS 78.039, 78.185) The use of a word in a foreign language that is spelled similarly or has the same meaning as a word in the English language, or the use of a word in the English language that is spelled similarly or has the same meaning as a word in a foreign language, may make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

1. “Association of Women” is distinguishable from “Association de Mujeres”; and

2. “Evangelical Church” is distinguishable from “Evangelico Church.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.070 Distinguishing proposed name from name of existing business entity: Variations in beginning or ending of root words. (NRS 78.039, 78.185) The addition or omission of a prefix or a suffix or any other variation in the beginning or ending of a root word, such as “s,” “es,” “ing,” “ion,” “ed” or “er,” may make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

1. “C-Corp.” is distinguishable from “Cee Cee, Inc.”;

2. “Circuit Products” is distinguishable from “Circuit Production”;

3. “Rich, Inc.” is distinguishable from “Richey, Inc.”;

4. “Sam’s Town” is distinguishable from “Sammy’s Town”; and

5. “Window Wash” is distinguishable from “Window Washing.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.080 Distinguishing proposed name from name of existing business entity: Use of prepositions. (NRS 78.039, 78.185) The addition, omission or change of a preposition, such as “of,” “in,” “with” or “for,” may make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

1. “Express Nevada Co.” is distinguishable from “Express of Nevada Co.”;

2. “Kids for Tomorrow” is distinguishable from “Kids of Tomorrow”; and

3. “Jobs in Nevada” is distinguishable from “Jobs for Nevada.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.090 Distinguishing proposed name from name of existing business entity: Use of abbreviated or unabbreviated words. (NRS 78.039, 78.185) The use of an abbreviated word in place of an unabbreviated word, or the use of an unabbreviated word in place of an abbreviated word, may make the proposed name of the corporation distinguishable from the name of an existing business entity. For example:

1. “AAA Communications” is distinguishable from “AAA Comm.”;

2. “ABC Job Service” is distinguishable from “ABC Job Svc.”;

3. “American Systems” is distinguishable from “Amer. Systems”;

4. “Computer Technology” is distinguishable from “Computer Tech”; and

5. “International Investors” is distinguishable from “Int’l Investors.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

NAC 78.100 Distinguishing proposed name from name of existing business entity: Use of numerals or words representing numbers. (NRS 78.039, 78.185) The use of a numeral in place of a word that represents the number, or the use of a word that represents the number in place of a numeral, may make the proposed name of a corporation distinguishable from the name of an existing business entity. For example:

1. “8 Ball, Inc.” is distinguishable from “Eight-Ball, Inc.”;

2. “4th and Vine” is distinguishable from “Fourth and Vine”;

3. “Nineteenth Hole” is distinguishable from “19th Hole”; and

4. “One and Only” is distinguishable from “1 and Only.”

(Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

ANNUAL LIST

NAC 78.300 Definitions. (NRS 78.150) As used in NAC 78.300 to 78.380, inclusive, unless the context otherwise requires, the words and terms defined in NAC 78.310 and 78.320 have the meanings ascribed to them in those sections.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.310 “Alternative due date” defined. (NRS 78.150) “Alternative due date” means the date selected by a corporation pursuant to NAC 78.330 on which the list required by subsection 1 of NRS 78.150 must be filed with the Secretary of State each year.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.320 “Due date” defined. (NRS 78.150) “Due date” means the date on which the list required by subsection 1 of NRS 78.150 must be filed with the Secretary of State each year as set forth in NRS 78.150.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.330 Selection of alternative due date for filing annual list: Form; contents. (NRS 78.150)

1. A corporation may select the last day of a month other than the month in which the corporation’s due date occurs as the alternative due date for filing the list required by subsection 1 of NRS 78.150 by submitting to the Secretary of State a form prescribed by the Secretary of State which must include, at a minimum:

(a) The name of the corporation;

(b) The business identification number assigned to the corporation by the Secretary of State;

(d) The month in which the alternative due date will occur;

(e) A declaration under penalty of perjury that:

(1) The information provided in the form is true and correct to the best of the corporation’s knowledge;

(2) The selection of an alternative due date is not being made to avoid any fee or penalty; and

(3) The corporation acknowledges that pursuant to NRS 239.330, it is a category C felony to knowingly offer any false or forged instrument for filing with the Office of the Secretary of State; and

(f) The printed name and signature of the person submitting the form and the date on which the form was signed.

2. The alternative due date selected pursuant to subsection 1 must occur before the corporation’s next due date. The selection of an alternative due date cannot have the effect of extending a corporation’s due date.

3. The selection of an alternative due date pursuant to this section will not result in the proration of any fees or penalties.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.340 Selection of alternative due date by corporation in terminated status. (NRS 78.150)

1. If a corporation is in terminated status, the corporation must have its right to transact business in this State restored before it may select an alternative due date pursuant to NAC 78.330.

2. As used in this section, “terminated status” means any status in the records of the Office of the Secretary of State which indicates that a corporation no longer has the right to transact business in this State, including, without limitation, the status of “revoked,” “permanently revoked,” “dissolved,” “cancelled,” “terminated,” “administrative hold” or “withdrawn.”

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.350 Form for selection of alternative due date to be submitted with annual list; deadline for submission. (NRS 78.150) If a corporation is selecting an alternative due date pursuant to NAC 78.330, the corporation must submit the form for the selection of an alternative due date along with the list required pursuant to subsection 1 of NRS 78.150 on or before the last day of the month immediately preceding the month in which the corporation’s due date occurs.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.360 Acceptance and filing of form for selection of alternative due date and annual list. (NRS 78.150) Except as otherwise provided in NAC 78.380, the Secretary of State will accept and file a form for the selection of an alternative due date and the list required pursuant to subsection 1 of NRS 78.150 that a corporation submits pursuant to NAC 78.350 if:

1. The form contains all the information required pursuant to NAC 78.330; and

2. The list satisfies all filing requirements set forth in NRS 78.150.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.370 Notice to registered agent of intent to select alternative due date. (NRS 78.150) A corporation shall notify its registered agent of its intent to select an alternative due date not later than 60 days before the alternative due date.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

NAC 78.380 Limitation on selection of alternative due date; exception. (NRS 78.150)

1. Except as otherwise provided in subsection 2, the Secretary of State may limit the number of times a corporation can select an alternative due date.

2. The Secretary of State may allow for additional selections of an alternative due date beyond any limit imposed by subsection 1 in extenuating circumstances.

(Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

PENALTY FOR PURPORTING TO DO BUSINESS WITHOUT FILING ARTICLES OF INCORPORATION

NAC 78.400 Activities subject to fine. (NRS 78.047)

1. The Secretary of State may refer the matter to the district attorney of the county in which a person’s principal place of business is located or the Attorney General, or both, for a determination of whether to institute proceedings to recover the fine set forth in NRS 78.047 if the person:

(a) Is purporting to be a corporation organized and existing under the laws of this State but has willfully failed to file with the Secretary of State articles of incorporation;

(b) Is doing business in this State as a corporation organized and existing under the laws of this State but has willfully failed to file with the Secretary of State articles of incorporation; or

(c) Is doing business in this State as a corporation organized and existing under the laws of this State while the corporation is in terminated status.

(Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012; A by R080-13, 12-23-2013)

NAC 78.405 Filing of complaints. (NRS 78.047)

1. A person may report to the Secretary of State that a person may be subject to the fine set forth in NRS 78.047 by emailing a complaint to [email protected] or by mailing a complaint to:

Secretary of State

Commercial Recordings Division

Attn: Business Compliance

202 North Carson Street

Carson City, Nevada 89701

2. A complaint filed with the Secretary of State pursuant to subsection 1 must be on a form prescribed by the Secretary of State and must contain, at a minimum:

(a) The name, street address, telephone number and, if applicable, the electronic mail address and any other contact information of the complainant;

(b) The name, street address, telephone number and, if applicable, the electronic mail address and any other contact information of any person authorized by the complainant to file the complaint on behalf of the complainant;

(c) The name, street address, telephone number and, if applicable, the electronic mail address and any other contact information of the person alleged to be subject to the fine set forth in NRS 78.047;

(d) Information identifying all persons involved in the alleged conduct subjecting the person to the fine set forth in NRS 78.047, including, without limitation, the names, street addresses, business locations, telephone numbers, electronic mail addresses and Internet websites of the persons involved in the alleged conduct;

(e) Information identifying the nature of the business engaged in by the person alleged to be subject to the fine set forth in NRS 78.047;

(f) Information identifying any other regulatory entity or agency or any court, arbitrator or other tribunal with which the complainant has filed a complaint or report regarding the same conduct, including, without limitation, the name and address of the regulatory entity, agency, court, arbitrator or tribunal, the date upon which any complaint or report was filed and the case number assigned to the complaint or report, if any;

(g) Any additional information which the complainant believes may assist in the investigation of the allegations made in the complaint;

(h) Copies of any documents which the complainant believes may assist in the investigation of the allegations made in the complaint;

(i) A statement indicating whether the complainant is willing to testify regarding the complaint in a court of law or in an administrative proceeding; and

(j) A statement that to the best of the complainant’s knowledge the information contained in the complaint is true and correct.

(Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012)

NAC 78.410 Duties of Secretary of State upon receipt of complaint. (NRS 78.047)

1. Upon receiving a complaint filed pursuant to NAC 78.405, the Secretary of State will:

(a) Review the complaint and any information submitted with the complaint;

(b) Determine whether the allegations in the complaint may be addressed through the administrative processes of the Office of the Secretary of State; and

(c) Determine whether to refer the complaint to another regulatory or enforcement agency of this State, a political subdivision of this State, another state or the Federal Government.

2. The Secretary of State may refer the information obtained in a complaint filed pursuant to NAC 78.405 and any information obtained by the Secretary of State through an investigation of the complaint to another regulatory or enforcement agency of this State, a political subdivision of this State, another state or the Federal Government.

3. The Secretary of State may request that the complainant or the person alleged to be subject to the fine set forth in NRS 78.047 provide any information deemed necessary by the Secretary of State to assist in the investigation of the allegations made in the complaint.

(Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012)

NAC 78.415 Determination regarding sufficiency of complaint by Secretary of State: Notice of deficiencies; demand for response; referral for legal proceedings. (NRS 78.047)

1. If the Secretary of State determines that the information provided with a complaint filed pursuant to NAC 78.405 is not sufficient to warrant further investigation or processing of the complaint, the Secretary of State will send to the complainant written notification of the deficiencies in the complaint.

2. If the Secretary of State determines that the information provided with a complaint filed pursuant to NAC 78.405 or obtained during the course of an investigation of another matter is sufficient to warrant further investigation or processing, the Secretary of State may send a written demand for a response to the complaint or investigation to the person alleged to be subject to the fine set forth in NRS 78.047.

3. A response demanded pursuant to subsection 2 must be:

(a) Completed and returned to the Office of the Secretary of State within the time specified in the written demand; and

(b) Signed under oath by the respondent or, if the respondent is an entity, by a person in a position of responsibility with the respondent.

4. If, based on the information submitted with a complaint, any information obtained during an investigation of the complaint and any information included in a response demanded pursuant to subsection 2, the Secretary of State determines that a person is subject to the fine set forth in NRS 78.047, the Secretary of State may demand that the person file any document required to bring the person into compliance with chapter 78 of NRS and pay any fee, penalty or fine required by the laws of this State.

5. If, in response to the demand of the Secretary of State pursuant to subsection 4, the person does not file a document required to bring the person into compliance with chapter 78 of NRS or pay any fee, penalty or fine required by the laws of this State, the Secretary of State may refer the matter to the district attorney of the county in which the person’s principal place of business is located or the Attorney General, or both, and request that the district attorney or Attorney General institute legal proceedings to require the person to file any document required to bring the person into compliance with chapter 78 of NRS and to pay any fee, penalty or fine required by the laws of this State.

6. The Secretary of State may communicate any findings made or actions taken in response to a complaint or the investigation of a complaint to:

(a) The complainant at the address provided on the complaint form; and

(b) The person who is alleged to be subject to the fine set forth in NRS 78.047 at the last known address of the person or through the person’s registered agent of record.

(Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012)