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Reinstating a Voided Delaware Corporation

By: John Morrissey, COGENCY GLOBAL on Tue, Jan 22, 2013
corporate_filing-resized-600.jpgAre you one of the procrastinators who failed to file your corporation’s Delaware 2011 annual report that was due last March? Or, maybe the report was rejected because you didn’t list the names and addresses of the directors or the officer who signed the report. No matter the reason, if you failed to file your corporation’s 2011 annual report and you do not file your corporation’s 2012 report by March 1, 2013, your corporation may ultimately be voided. (See our blog posting, "Frequently Asked Questions About Domestic Delaware Corporate Annual Reports and Franchise Tax Payments" for more information about filing your 2012 report.)

Steps for Reinstating a Voided Delaware Corporation
If voided and the corporation wishes to be reinstated, the corporation will have to file a Certificate of Renewal and Revival pursuant to Section 312 of the Delaware General Corporation Law (the “DGCL”). The certificate must include:

  • the exact name of the corporation
  • the date of its incorporation under the laws of Delaware
  • the date the corporation was voided
  • the name and address of the corporation’s registered agent; and
  • whether or not the renewal is perpetual

The certificate must also state that it is filed by authority of the board of directors at time the corporation was voided or who were elected directors as provided in Section 312(h) of the DGCL. You can obtain a relatively simple sample form of the certificate from your corporate service provider or from the Delaware Secretary of State’s website.

In addition to filing the Certificate of Renewal and Revival and paying the past due tax penalty and interest (see below), certain past due annual reports must also be filed depending on the year the company went void.

Fees Due and Name Issues Related to Reinstatement
In addition to the usual filing fees, the corporation will also have to pay all franchise taxes, penalty and interest due at the time the corporation was voided; or, if the corporation was voided more than five years ago, it will have to pay three times the amount of annual franchise tax that would be due and payable by the corporation for the year in which the reinstatement was effected. The payment to renew the corporation does not reduce the franchise tax due for the year in which the renewal is effected. An unlikely, but more disturbing, possibility is that during the period your corporation was voided, another corporation has adopted a name that renders the name of your corporation unavailable for corporate use inDelaware. If that should occur, the corporation will have to renew using a new name that is currently available.

Avoid Extra Costs and Headaches Associated With Reinstatement
Although with the filing of the certificate, the corporation “…shall be renewed and revived with the same force and effect as if its certificate of incorporation had not been forfeited or void…” per Section 312(e) of the DGCL, it should be obvious that it is safer, easier and less expensive to file your annual report well before the March 1 due date.


This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.

Topics: Annual Report Compliance, Delaware Corporate, UCC and Compliance