(Code 1981, §14-2-1501, enacted by Ga. L. 1988, p. 1070, § 1; Ga. L. 1993, p. 1231, § 23; Ga. L. 1995, p. 482, § 7; Ga. L. 1999, p. 405, § 12; Ga. L. 2003, p. 140, § 14.)
Law reviews.- For article summarizing law relating to jurisdiction and venue over domestic and foreign corporations in Georgia, and service therein, see 21 Mercer L. Rev. 457 (1970). For article, "Georgia's 'Door-Closing' Statute: Who Bears the Burden?," see 24 Ga. St. B. J. 141 (1988).
COMMENT
Source: Model Act, § 15.01. This replaces provisions of former § 14-2-310.
Article 15 requires that a foreign corporation seeking to transact business within the state must (1) obtain a certificate of authority from the Secretary of State and (2) maintain a registered office and appoint a registered agent within the state.
Subsection (a) states the basic requirement that a foreign corporation must obtain a certificate of authority before it transacts business within the state. Section 14-2-1505 describes the scope of the privilege obtained by a certificate of authority while Section 14-2-1502 describes the consequences of transacting business in the state without first obtaining the certificate of authority.
The Code does not attempt to formulate an inclusive definition of what constitutes the transaction of business. Rather, the concept is defined in a negative fashion by subsection (b), which states that certain activities do not constitute the transaction of business. In general terms, any conduct more regular, systematic, or extensive than that described in subsection (b) constitutes the transaction of business and requires the corporation to obtain a certificate of authority. Typical conduct requiring a certificate of authority includes maintaining an office to conduct local intrastate business, selling personal property not in interstate commerce, entering into contracts relating to the local business or sales, and owning or using real estate for general corporate purposes. But the passive owning of real estate for investment purposes does not constitute transacting business. See subsection (b)(9).
The Model Act list of activities in subsection (b) has been modified to follow former Georgia law, in § 14-2-310(b). While the differences in language are not substantial, the older language was preserved to eliminate any inferences of a legislative intent to change the substance of these descriptions.
Subsection (c) makes clear that the list of transactions in subsection (b) is not exhaustive. Among the large number of other transactions which do not give rise to the requirement that a certificate of authority be obtained are the ownership of all the shares of stock in a corporation that is engaged in local business within the state or as a limited partner in a limited partnership engaged in local business, or taking ministerial actions such as filing financing statements or registering trademarks.
Subsection (d) was added to the Model Act provisions from former § 14-2-310(c). The test of "transacting business" defined in a negative way in subsection (b) applies only to the question whether the corporation's contacts with the state are such that it must obtain a certificate of authority. It is not applicable to other questions such as whether the corporation is amenable to service of process under state "long-arm" statutes or liable for state or local taxes. A corporation that has obtained (or is required to obtain) a certificate of authority to transact business under Article 15 will generally be subject to suit and state taxation in the state, while a corporation that is subject to service of process or state taxation in the state will not necessarily be required to obtain a certificate of authority under Article 15. These provisions concerning qualification of foreign corporations with the Secretary of State are intended to have independent legal significance, and are not intended to govern what constitutes "doing business" for other purposes under Georgia law.
Note to 1993 Amendment The 1993 amendment added a new subparagraph (b)(14) which provides that a corporation which serves as general partner of a Georgia limited partnership or qualified foreign entity need not itself qualify as a foreign corporation in Georgia on that basis alone. This result is consistent with Georgia's limited partnership law, which does not require qualification of a foreign limited partnership which serves as the general partner of a Georgia limited partnership.
Note to 1999 Amendment Subsection 13 was amended to change the word "person" to "entity." Subsection 14 was added to provide that serving as a manager of a limited liability company organized under the laws of, or transacting business in, Georgia, will not constitute "transacting business" in Georgia.
Cross-References Application of Act to existing qualified foreign corporation, see § 14-2-1702. Board of directors meeting, see § 14-2-820. Certificate of authority: application for, see § 14-2-1503; effect of, see § 14-2-1505. "Foreign corporation" defined, see § 14-2-140. Penalty for transacting business without authority, see § 14-2-1502. "Proceeding" defined, see § 14-2-140. Shareholders' meetings, see §§ 14-2-701 - 703.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 22-102 and 22-1401 and former Code Section 14-2-310, which were repealed by Ga. L. 1988, p. 1070, § 1, effective July 1, 1989, are included in the annotations for this Code section.
Purpose of former Code 1933, § 22-1401 was to require registration of foreign corporations which intend to conduct business in Georgia on a continuous basis, not as a temporary matter; activity related to a single transaction or contract was not contemplated. Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980) (decided under former Code 1933, § 22-1401).
Registration required.
- Foreign corporation cannot lawfully transact business in Georgia without registering in accordance with former Code 1933, § 22-1401. Image Mills, Inc. v. Vora, 146 Ga. App. 196, 245 S.E.2d 882 (1978) (decided under former Code 1933, § 22-1401).
Effect of registering and transacting business outside Georgia.
- Foreign corporation does not necessarily shed its nonresidence by registering and transacting business without Georgia. Image Mills, Inc. v. Vora, 146 Ga. App. 196, 245 S.E.2d 882 (1978) (decided under former Code 1933, § 22-1401).
More substantial activity required for registration than for jurisdiction.
- Under registration statute more substantial activity within state is required than under jurisdictional statute because significant duties, and perhaps penalties, may be incurred. Barker v. County of Forsyth, 248 Ga. 73, 281 S.E.2d 549 (1981) (decided under former Code 1933, § 22-1401).
Foreign corporation cannot "fail" to appoint agent unless required to register.
- Unless a foreign corporation is required to register with Secretary of State, pursuant to provisions of the former Chapter, it cannot "fail" to appoint or maintain an agent in this state so as to trigger service of process provisions of the former Corporate Service Act, Code 1933, § 22-1401. Camp v. Sellers & Co., 158 Ga. App. 646, 281 S.E.2d 621 (1981) (decided under former Code 1933, § 22-1401).
When qualification required.
- If activities are extensive in scope and involve much work over time, qualification is required despite all such activities being related to a single contract. Winston Corp. v. Park Elec. Co., 126 Ga. App. 489, 191 S.E.2d 340 (1972) (decided under former Code 1933, § 22-1401).
If its activities are minimal and unsubstantial in connection with only one contract and there is displayed no intention to continue these activities after completion of the single contract, the foreign corporation does not have to qualify because its contacts with Georgia relate to an isolated transaction. Winston Corp. v. Park Elec. Co., 126 Ga. App. 489, 191 S.E.2d 340 (1972) (decided under former Code 1933, § 22-1401).
Service of process under long-arm statute.
- O.C.G.A. § 9-11-4(e)(1) did not govern service of process in a manufacturer's breach of contract action against a distributor because the distributor was not "authorized to transact business in the State" as that phrase was used in O.C.G.A. § 9-11-4(e)(1); the distributor did not show that the distributor was a corporation incorporated or domesticated under the laws of Georgia, because the distributor pointed to no evidence that the distributor obtained the requisite certificate of authority to transact business in the state from the Georgia Secretary of State pursuant to O.C.G.A. § 14-2-1501(a) and because the distributor was a nonresident subject to the long-arm statute, O.C.G.A. § 9-10-90 et seq. Kitchen Int'l, Inc. v. Evans Cabinet Corp., 310 Ga. App. 648, 714 S.E.2d 139 (2011).
Cited in Ellison v. Labor Pool of Am., Inc., 228 Ga. 147, 184 S.E.2d 572 (1971); Coe & Payne Co. v. Wood-Mosaic Corp., 125 Ga. App. 845, 189 S.E.2d 459 (1972); T.E. McCutcheon Enters., Inc. v. Snelling & Snelling, Inc., 232 Ga. 609, 212 S.E.2d 319 (1974); A.B.R. Metals & Servs., Inc. v. Roach-Russell, Inc., 135 Ga. App. 193, 217 S.E.2d 447 (1975); Healey v. Morgan, 135 Ga. App. 915, 219 S.E.2d 628 (1975); Van Bergen Belfoundries, Inc. v. Executive Equities, Inc., 139 Ga. App. 319, 228 S.E.2d 356 (1976); Atlas Match Corp. v. Berry Realty Co., 142 Ga. App. 588, 236 S.E.2d 554 (1977); Evans v. Smithdeal, 143 Ga. App. 287, 238 S.E.2d 278 (1977); LDH Properties, Inc. v. Morgan Guar. Trust Co., 145 Ga. App. 132, 243 S.E.2d 278 (1978); Metric Steel Co. v. BLI Constr. Co., 147 Ga. App. 380, 249 S.E.2d 121 (1978); Shackelford v. Central Bank, 148 Ga. App. 494, 251 S.E.2d 569 (1978); Riordan v. W.J. Bremer, Inc., 466 F. Supp. 411 (S.D. Ga. 1979); Spiegel, Inc. v. Odum, 153 Ga. App. 380, 265 S.E.2d 297 (1980); DeDaviess v. U-Haul Co., 154 Ga. App. 124, 267 S.E.2d 633 (1980); Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587, 281 S.E.2d 332 (1981); Bobst v. Citizens & S. Fin. Corp., 159 Ga. App. 128, 282 S.E.2d 749 (1981); Morgan Guar. Trust Co. v. Blum, 649 F.2d 342 (5th Cir. 1981); McPhaul v. Hindle Son & Co., 158 Ga. App. 650, 281 S.E.2d 636 (1981); Bouldin v. Aragona-Garcia Enters., Inc., 161 Ga. App. 396, 288 S.E.2d 673 (1982); Gorham Jewelers, Inc. v. A. Cohen & Sons Corp., 165 Ga. App. 85, 299 S.E.2d 156 (1983); Miller & Meier & Assocs. v. Diedrich, 174 Ga. App. 249, 329 S.E.2d 918 (1985); Diedrich v. Miller & Meier & Assocs., 254 Ga. 734, 334 S.E.2d 308 (1985); George C. Carroll Constr. Co. v. Langford Constr. Co., 182 Ga. App. 258, 355 S.E.2d 756 (1987); Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738 (11th Cir. 2002).
Transacting Business
Activities not considered transacting business.
- Former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501) listed activities which should not be considered transacting business, and a foreign corporation involved in any one of these activities required no certificate. Unilease No. 16, Inc. v. Dunrite Sales Corp., 147 Ga. App. 728, 250 S.E.2d 179 (1978) (decided under former Code 1933, § 22-1401).
List nonexclusive.
- Former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501) contained a nonexclusive list of activities which did not constitute transacting business within the state. A.S. Int'l Corp. v. Salem Carpet Mills, Inc., 441 F. Supp. 125 (N.D. Ga. 1977) (decided under former Code 1933, § 22-1401).
Surplus insurers.
- Surplus insurers were authorized to file a declaratory judgment action to preserve their right to raise untimely notice of an occurrence as a defense to coverage even without a certificate of authority to conduct business in the state of Georgia. Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 649 S.E.2d 602 (2007).
"Transacting business" construed.
- Term "transacting business" as used in registration statute such as former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501) was not to be confused with the same term when used in a jurisdictional statute subjecting a foreign corporation to service of process in an action brought within the state. Barker v. County of Forsyth, 248 Ga. 73, 281 S.E.2d 549 (1981) (decided under former Code 1933, § 22-1401); Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69, 354 S.E.2d 628 (1987);(decided under former § 14-2-310).
Bermuda corporation was not transacting business in Georgia, because it had no office in Georgia or any employees working regularly or residing in Georgia, never maintained any warehouses, shipping terminals, telephone listings, books or records in Georgia, and its representatives traveled to Georgia only twice and on both occasions the trips were primarily for purposes other than business with Georgia customers. International Capital Equip. Ltd. v. Computer Atlanta, Inc., 715 F. Supp. 371 (N.D. Ga. 1989) (decided under former § 14-2-310).
Activity related to a single transaction or contract is not sufficient to establish that a foreign corporation is transacting business in the state so as to require a certificate of authority. Manufacturers Nat'l Bank v. Tri-State Glass, Inc., 201 Ga. App. 253, 410 S.E.2d 808 (1991).
Question of "doing business" is to be considered matter of fact to be resolved on an ad hoc or case-by-case basis and not by application of a mechanical rule. Winston Corp. v. Park Elec. Co., 126 Ga. App. 489, 191 S.E.2d 340 (1972) (decided under former Code 1933, § 22-1401); Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980);(decided under former Code 1933, § 22-1401).
Meaning of "isolated transaction" is largely one of fact to be decided according to the circumstances of each particular case including consideration of the purpose for which the term is being used so that the local activities of the foreign corporation must be judged as a whole. Winston Corp. v. Park Elec. Co., 126 Ga. App. 489, 191 S.E.2d 340 (1972) (decided under former Code 1933, § 22-1401); Reisman v. Martori, Meyer, Hendricks, & Victor, 155 Ga. App. 551, 271 S.E.2d 685 (1980);(decided under former Code 1933, § 22-1401).
May have jurisdiction without qualification to do business.
- Statutory scheme established by Georgia clearly anticipates activities of foreign corporation within state that would encompass minimum contacts necessary to confer jurisdiction under Georgia long-arm statute, former Ga. L. 1966, p. 343 (see now O.C.G.A. § 9-10-91), but which do not require foreign corporation to qualify to transact business under former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). Al & Dick, Inc. v. Cuisinarts, Inc., 528 F. Supp. 633 (N.D. Ga. 1981) (decided under former Code 1933, § 22-1401).
Section determines applicability of § 14-2-1502. - The applicability of former § 14-2-331 (see now O.C.G.A. § 14-2-1502), prohibiting foreign corporations from maintaining actions in the courts of this state unless they have obtained a certificate of authority, was contingent on whether the foreign corporation was transacting business within the state as that term was used in former § 14-2-331 (see now O.C.G.A. § 14-2-1501), and therefore was required to obtain a certificate of authority under former § 14-2-310. Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69, 354 S.E.2d 628 (1987) (decided under former § 14-2-310).
Only corporations required to qualify may be served.
- A foreign corporation can be served pursuant to former Code 1933, § 22-1410 (see now O.C.G.A. § 14-2-1510) only if it was a corporation that had qualified, or should have qualified, to transact business in accordance with former Code 1933, § 22-1401 (see now O.C.G.A. § 22-1401). Al & Dick, Inc. v. Cuisinarts, Inc., 528 F. Supp. 633 (N.D. Ga. 1981) (decided under former Code 1933, § 22-1401).
Corporate officer's trips to Georgia twice a year to take orders for merchandise to be shipped from corporation's place of business in Maryland did not constitute transacting business within the state pursuant to former § 14-2-310. Work Clothes Outlet, Inc. v. M & S Purchasing, Inc., 188 Ga. App. 179, 372 S.E.2d 509 (1988) (decided under former § 14-2-310).
Occasional trips to Georgia in connection with employees soliciting orders.
- Having employees soliciting orders within Georgia was not grounds requiring qualification to do business under former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). Accordingly, it would be anomalous, at best, to hold that occasional trips to Georgia to hire, supervise, or promote work of those employees did require qualification under that section. By the same token, if such product promotion would require qualification, as a practical matter, former Code 1933, § 22-1401(b)(6) would have few, if any, applications. Al & Dick, Inc. v. Cuisinarts, Inc., 528 F. Supp. 633 (N.D. Ga. 1981) (decided under former Code 1933, § 22-1401).
Maintaining suit, making loans, creating or acquiring evidence of debt.
- A foreign corporation shall have the right to maintain a suit, and make loans and create or acquire evidence of debt in this state without being considered as transacting business in this state, although if it is found to be transacting business in this state without a certificate of authority it shall not be permitted to maintain any action, suit, or proceeding in any court of this state. Tankersley v. Security Nat'l Corp., 122 Ga. App. 129, 176 S.E.2d 274 (1970) (decided under former Code 1933, § 22-1401).
Mere fact of office address standing alone was insufficient to establish that activities of foreign corporation did not fall within any of the activities listed in former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501) not considered transacting business, and for which a foreign corporation was not required to obtain a certificate of authority to do business in Georgia. Unilease No. 16, Inc. v. Dunrite Sales Corp., 147 Ga. App. 728, 250 S.E.2d 179 (1978) (decided under former Code 1933, § 22-1401).
Business activities in Georgia found within enumerated exceptions to general requirement that foreign corporation obtain certificate of authority to transact business in state. Homac, Inc. v. Fort Wayne Mtg. Co., 577 F. Supp. 1065 (N.D. Ga. 1983) (decided under former § 14-2-310).
Foreign corporation's limited activities did not subject it to requirement of obtaining certificate of authority. Ely & Walker v. Dux-Mixture Hdwe. Co., 582 F. Supp. 285 (N.D. Ga. 1982), aff'd, 732 F.2d 821 (11th Cir. 1984) (decided under former § 14-2-310); Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69, 354 S.E.2d 628 (1987);(decided under former § 14-2-310).
Certificate of authority not required to do such limited activities as provide for out-of-state acceptance of contracts and shipment of goods only after credit department's approval. Ely & Walker v. Dux-Mixture Hdwe. Co., 732 F.2d 821 (11th Cir. 1984) (decided under former § 14-2-310).
Interstate Commerce
Interstate commerce exception.
- If a foreign corporation's transaction is exclusively or dominantly interstate in nature, it will be characterized as "interstate" and the foreign corporation need not comply with former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). Record Data, Inc. v. Vinylgrain Indus. of Ga., Inc., 143 Ga. App. 854, 240 S.E.2d 223 (1977) (decided under former Code 1933, § 22-1401).
Purpose of the interstate commerce exception was that a state may not, by discriminatory legislation, exclude, obstruct, impose burdensome conditions, or in any way, fetter or interfere with the right of foreign corporations to engage in interstate commerce, because of the preeminence of the "commerce clause" of the United States Constitution. DeKalb Cablevision Corp. v. Press Ass'n, 141 Ga. App. 1, 232 S.E.2d 353 (1977) (decided under former Code 1933, § 22-1401).
Determination of dominant characteristics of transactions.
- Transactions in Georgia between a foreign corporation and a local entity, which exhibit both interstate and intrastate features, must be examined to determine their dominant characteristics. If the transaction is exclusively or dominantly interstate in nature, it will be characterized as "interstate" and the foreign corporation need not comply with this section. DeKalb Cablevision Corp. v. Press Ass'n, 141 Ga. App. 1, 232 S.E.2d 353 (1977) (decided under former Code 1933, § 22-1401).
Compliance required when local activities constitute substantial business.
- If the local activities of the foreign corporation are not merely ancillary to the interstate features, but constitute a substantial local and domestic business separate from its interstate business, the foreign corporation must comply with former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). DeKalb Cablevision Corp. v. Press Ass'n, 141 Ga. App. 1, 232 S.E.2d 353 (1977) (decided under former Code 1933, § 22-1401); Briarcliff Communications Group, Inc. v. Associated Press, 154 Ga. App. 369, 268 S.E.2d 356 (1980);(decided under former Code 1933, § 22-1401).
Foreign corporation not transacting business and dismissal proper.
- Trial court did not err in denying a garnishee's motion to dismiss because the garnishor, a foreign corporation, was not shown to have been transacting business in the State of Georgia without the proper certification, and the garnishee did not plead an affirmative defense under O.C.G.A. § 14-2-1502(a). Carrier411 Servs. v. Insight Tech., Inc., 322 Ga. App. 167, 744 S.E.2d 356 (2013).
Legal Action and Procedure
Service on corporations not required to qualify.
- Georgia law provides methods of service upon foreign corporations not required to qualify under section. Al & Dick, Inc. v. Cuisinarts, Inc., 528 F. Supp. 633 (N.D. Ga. 1981) (decided under former Code 1933, § 22-1401).
Service on corporation authorized to do business in state.
- Georgia's long arm statute does not apply to service on a corporation that is authorized to do business in the state. Teledata World Servs., Inc. v. Tele-Mart, Inc., 242 Ga. App. 842, 531 S.E.2d 372 (2000).
When foreign corporation need not obtain certificate before commencing action.
- Even when a case is originally filed in another district but is transferred to Georgia, a foreign corporation must obtain a certificate of authority to transact business in Georgia prior to commencing the action unless that corporation was not required to obtain a certificate of authority under former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501), the enforcement of the requirement would unreasonably burden interstate commerce, or the plaintiff has been forced to pursue its case in a jurisdiction not of its own choosing. Durkan Enters., Inc. v. Cohutta Banking Co., 501 F. Supp. 350 (N.D. Ga. 1980) (decided under former Code 1933, § 22-1401).
Suit on interstate transaction.
- A foreign corporation may avail itself of the opportunity to sue in the courts without the necessity of complying with the registration statute if the transaction sued upon is exclusively or dominantly interstate in nature. Briarcliff Communications Group, Inc. v. Associated Press, 154 Ga. App. 369, 268 S.E.2d 356 (1980) (decided under former Code 1933, § 22-1401).
Nonregistered foreign corporation may sue if not transacting business.
- A foreign corporation which is not registered to do business within the state may sue in the courts of Georgia so long as it is not transacting business within the meaning of former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). R.N. Kelly Cotton Merchant, Inc. v. York, 379 F. Supp. 1075 (M.D. Ga. 1973), aff'd, 494 F.2d 41 (5th Cir. 1974) (decided under former Code 1933, § 22-1401).
Distinction between corporation's right and state's right.
- A distinction must be made between the right of this state to assert jurisdiction over a defendant foreign corporation doing business within this state, and a plaintiff foreign corporation transacting business within this state which avails itself of the right to sue in the state courts. DeKalb Cablevision Corp. v. Press Ass'n, 141 Ga. App. 1, 232 S.E.2d 353 (1977) (decided under former Code 1933, § 22-1401).
No limitation on state court jurisdiction under long arm statute.
- Paragraphs (7) and (8) of subsection (b) of former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501) apply in determining whether a foreign corporation is required to obtain a certificate of authority from the Secretary of State to transact business in this state. They are not a limitation upon the jurisdiction of this state's courts under the long arm statute. McIntosh v. Mid-State Homes, Inc., 232 Ga. 871, 209 S.E.2d 203 (1974) (decided under former Code 1933, § 22-1401).
Substantial compliance with registration requirement.
- Trial court erred in granting a motion to dismiss for failure to have a certificate of authority at the time the complaint was filed since the plaintiff substantially complied with the registration requirements for a foreign corporation by obtaining a certificate of authority later. Health Horizons, Inc. v. State Farm Mut. Auto. Ins. Co., 239 Ga. App. 440, 521 S.E.2d 383 (1999), cert. denied, 2000 Ga. LEXIS 35 (2000), cert. denied, 2004 Ga. LEXIS 241 (2004).
Failure to obtain certificate is proper subject of dilatory plea.
- The failure of a foreign corporation to obtain a certificate of authority to transact business in this state is properly the subject of a dilatory plea. Safwat v. U.S. Leasing Corp., 154 Ga. App. 341, 268 S.E.2d 395 (1980) (decided under former Code 1933, § 22-1401).
A motion to dismiss an action on the ground the plaintiff is a foreign corporation which is not authorized to maintain an action in this state is a dilatory plea or a motion in abatement. Manufacturers Nat'l Bank v. Tri-State Glass, Inc., 201 Ga. App. 253, 410 S.E.2d 808 (1991).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 22-102 and 22-1401 and former Code Section 14-2-310, which were repealed by Ga. L. 1988, p. 1070, § 1, effective July 1, 1989, are included in the annotations for this Code section.
Registration as a dealer under the former Georgia Securities Act of 1973 did not exempt a foreign corporation from needing a certificate of authority under the former Georgia Business Corporation Code. 1975 Op. Att'y Gen. No. 75-38 (decided under former Code 1933, § 22-1401).
Qualification not equivalent to qualification under Art. 2, Ch. 3, T. 44. - "Qualification to transact business" under the Out-of-State Land Sales Act is not equivalent to qualification for license under the Act; therefore, a corporation meeting the licensing requirements of the Act, must also qualify to do business under the Corporate Code. 1973 Op. Att'y Gen. No. 73-140 (decided under former Code 1933, § 22-1401).
Effect of licensing under the Out-of-State Land Sales Act.
- A foreign corporation that is licensed under the Out-of-State Land Sales Act was not required to comply with the provisions of former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501) if the corporation would be otherwise exempt pursuant to subsection (b) of that section. 1974 Op. Att'y Gen. No. 74-49 (decided under former Code 1933, § 22-1401).
Business trust need not register because not corporate entity.
- The definition of "foreign corporation" found at former Code 1933, § 22-102 (see now O.C.G.A. § 14-2-140(10)) was based upon the premise that such an entity must be a corporation; thus, since a business trust was not considered a corporate entity, it cannot be a foreign corporation under Georgia law and does not have to register with the Secretary of State as a corporation under the Georgia Business Corporation Act. 1978 Op. Att'y Gen. No. 78-42 (decided under former Code 1933, § 22-102).
Unincorporated foreign foundation is not required to qualify under this section to transact business in this state, but a foreign corporation which owns an office building in Georgia, which it has managed on its behalf by another entity is required to qualify under this section to transact business in this state. 1978 Op. Att'y Gen. No. 78-41 (decided under former Code 1933, § 22-102).
Foreign professional corporation is not entitled to certificate of authority to transact business in this state. 1970 Op. Att'y Gen. No. 70-64 (decided under former Code 1933, § 22-102).
Out-of-state medical professional service corporation.- "One-man" Florida professional service corporation formed for purpose of practicing medicine in Florida and Georgia cannot register as foreign corporation under former Code 1933, § 22-1401. 1969 Op. Att'y Gen. No. 69-507 (decided under former Code 1933, § 22-1401).
Annual report required of all corporations.- Each corporation, domestic and foreign, authorized to transact business in this state is required to file an annual report with the Secretary of State's office, regardless of where its authority to transact business may have originated, since the exemption contained in subsection (a) of this section extends only to the requirements for qualification to do business and does not supersede the reporting requirements contained in the Georgia Corporation Code, which are imposed by the state in exchange for the privilege of doing business as a corporation, domestic or foreign, for there is no such exemption contained in former Chapter 22-15. 1977 Op. Att'y Gen. No. 77-62 (decided under former Code 1933, § 22-1401).
Foreign corporation as partner in limited partnership.
- A foreign corporation transacting business in Georgia as a general partner in a limited partnership must qualify to do business. 1982 Op. Att'y Gen. No. 82-95 (decided under former § 14-2-310).
Requirements of RICO Act.
- The Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-4-1 et seq., requires foreign alien corporations to comply with registration requirements when they desire to acquire or maintain of record any real property in this state. 1982 Op. Att'y Gen. No. 82-89 (decided under former § 14-2-310).
Acquiring and servicing mortgages.
- While acquiring mortgages from lenders and enforcing related rights does not alone constitute doing business in the state so as to require a certificate of authority, other activities involved in such servicing of mortgages may constitute doing business under former § 14-2-310, depending on the particular facts of each case. 1983 Op. Att'y Gen. No. 83-75 (decided under former § 14-2-310).
RESEARCH REFERENCES
Am. Jur. 2d.
- 36 Am. Jur. 2d, Foreign Corporations, §§ 11,13, 76 et seq.
12 Am. Jur. Pleading and Practice Forms, Foreign Corporations, § 1 et seq.
C.J.S.- 19 C.J.S., Corporations, §§ 988, 992 et seq.
ALR.
- Mode of proving authority of foreign corporations to do business within state, 2 A.L.R. 1235.
Effect of agreement by foreign corporation to install article within the state to bring transaction within state control, 11 A.L.R. 614; 101 A.L.R. 356.
Jurisdiction of action or proceeding involving internal affairs of foreign corporation, 18 A.L.R. 1383; 89 A.L.R. 736; 155 A.L.R. 1231; 72 A.L.R.2d 1211.
Applicability of state anti-trust Act to interstate transaction, 24 A.L.R. 787.
Interference with operation of plant producing goods destined for shipment out of state as restraint of trade or commerce among the states within inhibition of Sherman Anti-trust Act, 28 A.L.R. 1015; 128 A.L.R. 1075.
Foreign corporations: soliciting subscriptions to or selling corporate stock as doing business within state, 35 A.L.R. 625.
Construction work by foreign corporation as doing business within the state, 55 A.L.R. 726.
Solicitation within state of orders for goods to be shipped from other state as doing business within state within statutes prescribing conditions of doing business or providing for service of process, 60 A.L.R. 994; 101 A.L.R. 126; 146 A.L.R. 941.
Power of state to require foreign corporation to become incorporated under its laws as a condition of doing business in state, 72 A.L.R. 105.
Subsequent compliance with conditions of doing business in state as affecting enforceability of contract of foreign corporation made before compliance with such conditions, 75 A.L.R. 446.
Discrimination by state against foreign corporations in imposition of taxes and license fees, 77 A.L.R. 1490.
Applicability of provisions explicitly invalidating contracts made by foreign corporation not licensed to do business in state, to contracts made out of the state, 81 A.L.R. 1134.
Payment of fees or taxes imposed as condition of foreign corporation doing business within state as exempting it from other taxes, 82 A.L.R. 1437.
Failure of foreign corporation to comply or delay in complying with conditions of its right to do business as affecting its right to assert mechanics' lien, 95 A.L.R. 367.
Withdrawal of foreign corporation from state as affecting conditions under which it may be readmitted to do business in state and its rights and duties if readmitted, 110 A.L.R. 528.
Collateral business activities incident to, or in aid of, interstate transportation, as related to interstate commerce, 152 A.L.R. 1078.
What amounts to presence of foreign corporation in state, so as to render it liable to action therein to recover unemployment compensation tax, 161 A.L.R. 1068.
Ownership or control by foreign corporation of stock of other corporation as constituting doing business within state, 18 A.L.R.2d 187.
Holding directors', officers', stockholders', or sales meetings or conventions in a state by foreign corporation as doing business or otherwise subjecting it to service of process and suit, 84 A.L.R.2d 412.
Foreign corporation's leasing of personal property as doing business within statutes prescribing conditions of right to do business, 50 A.L.R.3d 1020.
Construction work by foreign corporation as doing business for purposes of statute requiring foreign corporation to qualify as condition of access to local courts, 90 A.L.R.3d 937.
What constitutes doing business within state for purposes of state "closed-door" statute barring unqualified or unregistered foreign corporation from local courts - modern cases, 88 A.L.R.4th 466.