Florida law requires all businesses to file an annual report with the Florida Department of State, Division of Corporations (the “Department”). Annual reports are due between January 1 and May 1 of the year following the calendar year in which the business’ articles of organization/incorporation became effective or the foreign entity obtained a certificate of authority to transact business in this state.

If annual reports are not filed, businesses could incur penalties or, even worse, potential administrative dissolution of the business. Annual reports must be filed with the Department between January 1 and May 1 of each calendar year thereafter.

Electronic Filing of Annual Reports – Proceed with Caution

Several business owners, authorized representatives, or their registered agents file annual reports on behalf of the business entity every year using the Department’s online filing system on sunbiz.org. However, many business owners are unaware that any individual, whether they are associated with the business or not, has access to the online filing system and may file an annual report, which can lead to business identity theft and fraudulent filings.

Email Notifications

The Department is required to provide email notification of the filing to the email address on file with the Department or must send a copy of the document to the address of the business or authorized agent. As an additional safeguard, if the business email or mailing address on file was altered, the Department must send notice to both the new and old addresses on file to provide notice of the change.

Business Owner’s Responsibility

It is important to note that the burden remains on the business owner to validate that their business filing is accurate and current. According to the Florida Statutes, a statement of correction that is filed to correct false, misleading, or fraudulent information is not subject to a fee by the Department if the statement of correction is delivered to the Department within 15 days after the notification. However, often times business owners will not notice the falsified change within the stated time period and become victims of business identity theft, which will require taking numerous steps to correct.

Corrective Measures

After rectifying the theft, there are a few actions business owners may take to potentially eliminate an individual from continuing to file annual reports.

First, the business could file a Statement of Authority with the Department indicating that the particular individual who filed the rogue annual report has no authority to act on behalf of the business. This will prevent a future filing by that individual.

Second, a business can file a Statement of Facts with the Department – this will outline the facts as they occurred, and the Department will investigate and make the Statement of Facts a public record.

Bottom Line

Individual business owners have the responsibility to monitor their business filings in order to minimize the risk of fraudulent filings. Several businesses have chosen to appoint a third party to file their annual report as a protective measure to ensure that their business filings are timely. However, many third-party appointees may not review and verify the accuracy of the business’ information online when filing the annual report. Even in this scenario, it is incumbent on the business owner to make sure that all of the information and filings are current and correct.

Businesses needing legal assistance may reach us at matthew.brust@henlaw.com or mark.nieds@henlaw.com.