PA Decennial Report due by December 31st
March 8, 2021
By Raymond M. Roberts, Esquire
By now, many businesses have received in the mail a postcard from the Pennsylvania Department of State announcing “ACTION REQUESTED BY: December 31, 2021. The post card advises that “your association has not made or amended any filing with the Bureau [of Corporations and Charitable Organizations] from January 1, 2012 to December 31, 2020. Pursuant to 54 Pa.C.S. §503, the association is required to file a Decennial Report of Continued Existence between January 1, 2021 and December 31, 2021.”
What is a Decennial Report?
The general rule for all corporations, limited liability companies, limited partnerships, limited liability partnerships and business trusts, that are registered with the Pennsylvania Bureau of Corporations and Charitable Organizations, whether they are formed in Pennsylvania or have registered as foreign (formed in other states) associations, is that they must file a special report, called a Decennial Report, every 10 years to advised of the entity’s continued existence. The requirement began in 2001. The Decennial Report requirement continued with the year 2011, and now 2021, and will continue into the future in 2031, 2041 and so on.
Does every entity have to file a Decennial Report by December 31, 2021?
The Decennial Report must be filed by all domestic and foreign business entities that have not made a new or amended filing with the Bureau of Corporations and Charitable Organizations from January 1, 2012 thru December 31, 2021. So, if your entity was formed on or after January 1, 2012, or if you made a new or amended filing during that time for an older entity (excluding a prior Decennial Report), you are not required to file a Decennial Report. If your entity was formed on or before January 1, 2012 and you have not made any new or amended filing on behalf of that entity since that date, the entity is required to file a Decennial Report to demonstrate that the entity continues to exist.
Does the Decennial Report requirement only apply to business entities?
No; there is also a requirement for insignias and marks used with articles and supplies that have not made a new or amended filing with the Bureau of Corporations and Charitable Organizations (Bureau) from January 1, 2012 thru December 31, 2021. The form to be filed for insignias and marks is different from the form for entities. Care should be taken to ensure that the proper form is used.
Are Trademarks required to file a Decennial Report?
No. Trademark filings are not subject to Decennial Report requirements.
Are Fictitious Name Registrations required to file a Decennial Report?
No. If your only filing with the Commonwealth is a Fictitious Name Registration, you are not required to file a Decennial Report. It would be wise to check your Fictitious Name Registration information to ensure that it is still correct. If there has been a change of address or a change of parties that own the name, the registration should be updated through the filing of an amendment. If the name is no longer in use, you should file a cancellation.
What happens if an entity required to file a Decennial Report fails to do so by December 31, 2021?
If an entity that is required to file fails to file a Decennial Report during the filing period from January 1, 2021 through December 31, 2021, the entity will no longer have exclusive use of its name on or after January 1, 2022. While the business entity may continue to exist, its name becomes available for any corporation or other association registering to do business in the Commonwealth.
The exclusivity of the entity name is one of the most precious rights of an entity and is often aggressively protected when competitors or other entities attempt to use a very similar name. If you fail to file your Decennial Report, you will lose the exclusive right to that name and the ability to defend it against others seeking to use it.
If the Decennial Report is not filed on or before December 31, 2021, can exclusivity be restored?
Yes, a missed filing deadline can be cured by the filing of a Decennial Report after the December 31, 2021 deadline, and it will restore the exclusivity of the use of the name, but only if another entity has not filed in that period to use that name. If another business entity has filed between the date of the deadline and the date of the delinquent filing, the name will have been appropriated by the new entity and the prior entity will not have exclusive use of the name.
What happens if an entity with a registered insignia or a mark used with articles and supplies does not file a decennial report?
If an entity having a registered insignia or “mark used with articles and supplies” does not file a Decennial Report prior to January 1, 2022, the insignia or “mark will be deemed no longer to be registered. The only way to restore the registration would be through the filing of an original application for registration.
Is an entity that does not receive a postcard reminder notice from the Commonwealth not required to file a Decennial Report?
Not necessarily. You may not have received a postcard reminder notice, but are still required to file a Decennial Report if you meet the criteria. If your entity was formed more than 10 years ago and has not made any corporate filing since formation, you are required to file a Decennial Report. If you moved and did not change your registered office address, then it is likely that the postcard was mailed to your old address. This is a good opportunity to check your information on file with the State and to make any necessary updates. You can check your information by going to https://www.corporations.pa.gov/search/corpsearch and entering your business name.
The attorneys at Rothman Gordon are available to assist you with the filing of your Decennial Report or any other updates to your record, such as a Change of Registered Office. If you are not sure whether you are required to file, we can assist you in finding out. Contact us online or call (412) 338-1184.