No foreign corporation shall transact business in this state until it has procured a certificate of authority to do so from the commission [secretary of state]. No foreign corporation shall procure a certificate of authority under the Business Corporation Act to transact in this state any business which a corporation organized under the Business Corporation Act is not permitted to transact. A foreign corporation shall not be denied a certificate of authority because the laws of the state or country under which the corporation is organized governing its organization and internal affairs differ from the laws of this state, and nothing in the Business Corporation Act authorizes this state to regulate the organization or the internal affairs of such corporation. Without excluding other activities which may not constitute transacting business in this state, a foreign corporation shall not be considered to be transacting business in this state, for the purposes of the Business Corporation Act, by reason of carrying on in this state any one or more of the following activities:
A. maintaining or defending any action or suit or any administrative or arbitration proceeding, or effecting the settlement thereof or the settlement of claims or disputes;
B. holding meetings of its directors or shareholders or carrying on other activities concerning its internal affairs;
C. maintaining bank accounts;
D. maintaining offices or agencies for the transfer, exchange and registration of its securities, or appointing and maintaining trustees or depositaries with relation to its securities;
E. effecting sales through independent contractors;
F. soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where the orders require acceptance without this state before becoming binding contracts;
G. creating as borrower or lender, or acquiring, indebtedness or mortgages or other security interest in real or personal property;
H. securing or collecting debts or enforcing any rights in property securing them;
I. transacting any business in interstate commerce;
J. conducting an isolated transaction completed within a period of thirty days and not in the course of a number of repeated transactions of like nature; or
K. investing in or acquiring, in transactions outside New Mexico, royalties and other nonoperating mineral interests and the execution of division orders, contracts of sale and other instruments incidental to the ownership of the nonoperating mineral interests.
History: 1953 Comp., § 51-30-1, enacted by Laws 1967, ch. 81, § 103; 1969, ch. 48, § 1; 1975, ch. 64, § 40.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Laws 2013, ch. 75, § 9 provided that as of July 1, 2013, the secretary of state, pursuant to N.M. const., Art. 11, § 19, shall assume responsibility for chartering corporations as provided by law, including the performance of the functions of the former corporations bureau of the public regulation commission, and that except for Subsection D of 53-5-8 NMSA 1978, references to the "public regulation commission", "state corporation commission" or "commission" shall be construed to be references to the secretary of state. See 8-4-7 NMSA 1978.
Compiler's notes. — This section is derived from Section 106 of the ABA Model Business Corporation Act.
Requirements for resort to state courts. — These provisions establish requirements for corporations should they desire to resort to the courts of this state in seeking remedies while the long arm statute submits a corporation to the jurisdiction of the courts through its acts, regardless of the corporation's intention to use the courts. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
Jurisdictional test not created by provisions as to soliciting orders. — The statutory language of this section dealing with the solicitation of orders as not constituting transaction of business within New Mexico, is for purposes of the Business Corporation Act, and not for testing jurisdiction under 38-1-16 NMSA 1978. Winward v. Holly Creek Mills, Inc., 1972-NMSC-009, 83 N.M. 469, 493 P.2d 954.
Engineering consulting services constitute "transacting business". — A company that provides consulting services in the field of engineering in order to promote a demand for manufacturers' products among potential customers, and that provides extensive engineering services for clients and customers alike in New Mexico, is transacting business within the ambit of this section and therefore is barred under 53-17-20 NMSA 1978 from maintaining any action, suit or proceeding in any court of this state. Applied Techs. Assocs. v. Schmidt, 362 F. Supp. 1103 (D.N.M. 1973).
Acts not constituting transaction of business in state. — Where nonauthorized foreign corporation was directly responsible to the insurance companies it represented for business produced and premiums collected by the local agent, who, in turn, became directly responsible to foreign corporation for the remittance of premium monies due, the debtor-creditor relationship created arose out of the agency relationship between the local agent and the insurers and is but incidental to the transaction of their insurance business in New Mexico. It did not arise out of the transaction of business in New Mexico by foreign corporation in its own corporate capacity. J.H. Silversmith, Inc. v. Keeter, 1963-NMSC-099, 72 N.M. 246, 382 P.2d 720 (decided under former law).
Where foreign corporation does not maintain an office in New Mexico, nor solicit business for itself as a general agency independent of the companies licensed to do business here for which it acts nor make separate contracts with local agents on its own behalf, it is not said to be transacting business in New Mexico. J.H. Silversmith, Inc. v. Keeter, 1963-NMSC-099, 72 N.M. 246, 382 P.2d 720 (decided under former law).
The appointment and removal of local agents or the collection of premiums for insurance written on behalf of licensed insurance companies by a nonresident insurance agency corporation does not constitute the "transaction of business" by that agency. J.H. Silversmith, Inc. v. Keeter, 1963-NMSC-099, 72 N.M. 246, 382 P.2d 720.
Texas company's representative in New Mexico who only solicits offers for contracts which are relayed back to Texas for acceptance is not doing business in New Mexico and is not barred from suing in New Mexico on contract by statute which requires certain types of businesses doing business in New Mexico to obtain a certificate of authorization to transact business in New Mexico. Don J. Cummings Co. v. Aluminum Mfg. Corp., 371 F.2d 118 (10th Cir. 1967).
Where court construes previous decisions to hold that mere solicitation of a contract in this state by an agent, to be accepted at a home office in a foreign state, amounts to the transaction of business and that any action thereon is barred, the court errs. Vernon Co. v. Reed, 1967-NMSC-261, 78 N.M. 554, 434 P.2d 376 (decided under former law).
Where plaintiff's only business is financing the purchase of its airplanes to aid sales by its parent corporation and toward this end it creates liens on personal property in New Mexico and its other activities are incidental to and directly related to this permitted activity, such activities do not constitute transacting business within this state. Cessna Fin. Corp. v. Mesilla Valley Flying Serv., Inc., 1969-NMSC-169, 81 N.M. 10, 462 P.2d 144, cert. denied, 397 U.S. 1076, 90 S. Ct. 1521, 25 L. Ed. 2d 811 (1970) (decided under former law).
Since absent isolated acts of debt collection and filing suit, a company's only contact with New Mexico was its ownership of the right to receive payment on loans to New Mexico corporations or individuals that originated from New Mexico banks, the contact was too remote to constitute "transacting business in this state" under the closed-door statute (53-17-20 NMSA 1978). Cadle Co. v. Wallach Concrete, Inc., 1993-NMSC-026, 115 N.M. 556, 855 P.2d 130.
Single act not within statute. — If the making and delivery of the promissory note in New Mexico could be said to constitute transacting business here, it is but a single act of business which this court has held would not bring a foreign corporation within its qualifying statutes. J.H. Silversmith, Inc. v. Keeter, 1963-NMSC-099, 72 N.M. 246, 382 P.2d 720 (decided under former law).
Dissolved foreign corporations. — The laws specific to foreign corporations are codified at 53-17-1 to 53-17-20 NMSA 1978, and do not contain a dissolution provision that is inconsistent with Rule 1-017 NMRA. Thus defendant, a foreign corporation, is subject to the New Mexico statutes which are specific to foreign corporations rather than to 53-16-24 NMSA 1978, which controls the dissolution of New Mexico corporations. Therefore, Delaware law controls whether defendant is amenable to suit following dissolution. Smith v. Halliburton Co., 1994-NMCA-055, 118 N.M. 179, 879 P.2d 1198.
Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Res. J. 303 (1961).
For note, "The Entry and Regulation of Foreign Corporations Under New Mexico Law and Under the Model Business Corporation Act," see 6 Nat. Res. J. 617 (1966).
For article, "1975 Amendments to the New Mexico Business Corporation Act," see 6 N.M.L. Rev. 57 (1975).
For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).
For article, "1983 Amendments to the New Mexico Business Corporation Act and Related Statutes," see 14 N.M.L. Rev. 371 (1984).
Annual Survey of New Mexico Corporate Law, see 17 N.M.L. Rev. 253 (1987).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 36 Am. Jur. 2d Foreign Corporations §§ 170 to 224; 281 et seq.
Right of resident creditors of foreign corporation to preference over nonresident creditors, 1 A.L.R. 648.
Mode of proving authority of foreign corporation to do business within state, 2 A.L.R. 1235.
Agreement by foreign corporation to install article within the state as bringing transaction within state control, 11 A.L.R. 614, 101 A.L.R. 356.
Effect of domestication of foreign corporations, 18 A.L.R. 130, 126 A.L.R. 1503.
Soliciting subscriptions to or selling corporate stock as doing business within state, 35 A.L.R. 625.
Construction work as doing business within the state, 55 A.L.R. 726.
Soliciting 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.
Status, citizenship, domicil, residence, or location of national corporations, 69 A.L.R. 1346, 88 A.L.R. 873.
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.
Effect of agreement by foreign corporation to service or repair article sold or leased by it to bring transaction within state control, 126 A.L.R. 1104.
Power to regulate activities of foreign corporation within state as condition of its doing business within, 132 A.L.R. 482.
What constitutes doing business within state by foreign insurance corporation, 137 A.L.R. 1128.
Ownership or control by foreign corporation of stock of other corporation as constituting doing business within state, 18 A.L.R.2d 187.
What constitutes doing business within state by foreign magazine, newspaper, or other publishing corporations, for purposes other than taxation, 38 A.L.R.2d 747.
Leasing of real estate by foreign corporation, as lessor or lessee, as doing business within state within statute prescribing conditions of right to do business, 59 A.L.R.2d 1131.
Holding directors', officers', or stockholders' or sales meetings or conventions in a state by foreign corporation as doing business within the state, 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.
Modern status of the Massachusetts or business trust, 88 A.L.R.3d 704.
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 929.
Personal liability of stockholder, officer, or agent for debt of foreign corporation doing business in state, 27 A.L.R.4th 387.
Construction, application, and operation of state "retaliatory" statutes imposing special taxes or fees on foreign insurers doing business in state, 30 A.L.R.4th 873.
19 C.J.S. Corporations § 901 et seq.