Question: How important is it to publish a Notice of Publication for your Arizona LLC after it is formed?
Answer: If newspaper publication is required the failure to publish timely could cause a court to deny the existence of the LLC, which could cause the members to become liable for its debts and liabilities.
Arizona LLC law requires that a notice of publication for the new Arizona LLC to be published in an Arizona Corporation Commission approved newspaper within 60 days after the ACC approves the filing if the company’s statutory agent is not located in Maricopa or Pima County. Arizona Revised Statutes Section 29-3201.G states:
“Within sixty days after the Commission files the Articles of Organization, either of the following must occur:
1. a notice of the filing of the Articles shall be published in a newspaper of general circulation in the county of the statutory agent’s street address for three consecutive publications containing the information required in subsection B of this Section. an affidavit evidencing the publication may be filed with the Commission.
2. the Commission shall input the information regarding the approval into the database as prescribed by Section 10-130 if the statutory agent’s street address is in a county with a population of more than eight hundred thousand persons.”
Because Section 29-3201.G.1 uses the word “shall” I interpret Arizona LLC law to say that publication within the required period is a requirement to the valid formation of the Arizona LLC whose statutory agent is not located in Maricopa or Pima county. An LLC that fails to publish within the required period opens itself up to a challenge by a creditor in court that the LLC was not formed as required by Arizona LLC law and therefor does not exist. If the court agreed with that argument then all of the members of the LLC would potentially be liable for the LLC’s debts and obligations.
Bottom Line: Publication is not an option when the company’s statutory agent is not located in Maricopa or Pima county. Every new Arizona LLC that does not have a statutory agent located in Maricopa or Pima county should always publish in an approved newspaper in the appropriate county within 60 days of the Arizona Corporation Commission approving the submitted Articles of Organization AND it should deliver an affidavit of publication to the ACC so it can put proof of publication online for the world to see.
If I failed to publish a Notice of Publication within 60-days of forming the LLC, how do I remedy the problem? I have an LLC that is now about 1 year old, but I have not done business under the name of the LLC and the LLC does not own any assets. I am now about to purchase real estate in the name of the LLC. Should I publish the Notice and send the affidavit to the State?
You could publish the Notice of Publication now, but a plaintiff/creditor will always be able to argue to a court that the LLC does not exist or should not give the owners asset protection because an LLC formation requirement was not satisfied. There are no Arizona appellate court cases on this issue so a court could go either way.
The most prudent course of action would be to form a new LLC and do it right so you eliminate the potential problem.