Request By:
Ann Z. Stewart
General Counsel
Office of Secretary of State
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion of this Office as to whether a foreign corporation may file a certificate of assumed name without also filing a certificate of authority under KRS 271A.520 - 271A.555.
You advise that the corporation in question believes that its activities fall within the exception of KRS 271A.520, but it fears that unless it files an assumed name with the Secretary of State and with the county clerk of each county wherein business will be conducted or transacted under such assumed name, that it will be in violation of KRS 365.015.
You further state:
It has been the past practice of this office to file a certificate of assumed name for a foreign corporation only when the corporation has previously been issued a certificate of authority under the provisions of KRS 271A.520 through 271A.555.
We believe that the answer to your inquiry lies in the very language of the statutes, particularly, KRS 365.015(1) and (2), to wit:
(1) . . . [T]he real name of a foreign corporation is the name set forth in its articles of incorporation or the fictitious name adopted for use in this state under KRS 271A.530.
(2) No . . . corporation shall conduct or transact business in this state under an assumed name or any style other than . . . its real name as defined in subsection (1) of this section, unless such . . . corporation has filed a certificate of assumed name. . . . (Emphasis supplied.)
KRS 271A.520 requires foreign corporations (except foreign insurance companies) who transact business in Kentucky to procure a certificate of authority from the Secretary of State.
Subsection 2 denotes the types of activities which shall NOT be considered the transacting of business in Kentucky, such as maintaining or defending a suit or administrative proceeding, holding meetings of its directors, maintaining bank accounts, maintaining offices for the transfer, exchange, and registration of its securities, effecting sales through independent contractors, creating evidences of debt, mortgages, or liens, securing or collecting debts, transacting business in interstate commerce or conducting an isolated transaction.
If the foreign corporation is not conducting or transacting business in Kentucky and its only activity falls within those actions which constitute an exception to transacting or conducting business, it does not fall within the requirement that it file an assumed name certificate with the Secretary of State or the county clerk. It is not conducting or transacting business in Kentucky.
In fact, the Statement of Assumed Name form states in part: " intends to conduct and transact business in the assumed name of ."
Thus, it would be inconsistent for a foreign corporation to claim under the assumed name statute that it is conducting and transacting business in Kentucky and not at the same time file as a foreign corporation doing business in Kentucky.
It is either transacting and conducting business here, or it is not.
If it is not doing so in Kentucky, whether it need file an assumed name should be governed by the laws of the states where it is transacting and conducting business.
If it is conducting and transacting business in Kentucky, it should register as a foreign corporation under KRS 271A.520 and if it is using an assumed name, it should also comply with KRS 365.015.
In our view, your practice is the correct procedure and you should not allow the foreign corporation to register under an assumed name unless the corporation shall also file as a foreign corporation doing business in Kentucky.