Delaware LLC Privacy: What's on Public Record?

By Rick Bell, Brett Melson Tuesday, July 2, 2019

delaware llc privacyMany people who form an LLC or corporation in Delaware want to know exactly what information is private and what is public, and if Delaware LLC privacy is real.

Delaware LLC Privacy

Delaware LLC filed through a professional Registered Agent affords you the highest level of confidentiality. Only the company name and the name and address of the Registered Agent typically appear on the Certificate of Formation, along with the date of filing and the company file number.

Here is what Delaware LLC privacy offers:

  • No information about the members or managers is required to be listed on the Certificate of Formation.
  • The Delaware Division of Corporations does not request, obtain or store any information regarding the LLC’s members and managers.

Your Delaware Registered Agent is required, however, to maintain a record of the contact person for the LLC, including the contact person's address. The contact person must be an actual person (not another company) who is at least 18 years of age. The contact person does not have to be a member or manager of the LLC and does not need to reside in the United States or be a United States citizen.

In Delaware, members and managers are not required to be named in, nor to execute, the Certificate of Formation. Preparation, execution and filing of the Certificate of Formation must be handled by an authorized person or entity. This is an individual or entity that forms an LLC on behalf of the members by filing the necessary formation documents with the Delaware Secretary of State and then providing the certified documents to the members of the LLC.

Typically, the authorized person is the LLC’s Registered Agent. The powers of the Authorized Person are merely to execute the filing of the document with the Delaware Division of Corporations. Once the document is filed, the Authorized Person delivers the LLC to the initial member(s).

The legal instrument that releases the LLC to the initial member(s) is called the Statement of the Authorized Person. This statement is prepared and signed by the Authorized person and is not provided to the state of Delaware. It is not required to be filed in Delaware public records.

What about Information on Payment Method?

After the initial formation, a Franchise Tax of $300 for the prior year's Franchise Tax is required to be paid, on or before June 1 of each year. If the Franchise Tax is not paid on time, a $200 penalty is assessed on June 2, and interest is assessed immediately.

The state of Delaware records all Franchise Tax payments, including the date and amount of each payment. If you pay your Franchise Tax on the state's website, the state will then have a record of the transaction, including the credit card number used.

If we are your Registered Agent and you take advantage of our service to pay the Franchise Tax through our website, the state will not have your credit card number, since we pay many companies' Franchise Taxes in bulk payments via our direct deposit account with the state of Delaware. Again, in this case, neither your member nor your management data will appear on any Delaware public records.

For Delaware LLCs formed and maintained through Harvard Business Services, Inc., the state of Delaware's public record will, therefore, contain no information about your LLC's members and/or managers. Your Delaware LLC privacy level will be 100%.

How can an LLC member prove ownership if the public record doesn't contain names?

The fundamental terms of an LLC's ownership, operation and management are set forth in an LLC Operating Agreement. An LLC Operating Agreement can be a written document or merely an oral understanding.

A written Operating Agreement, however, is typically used because it memorializes the understanding and agreements of the members which, in the event of a later dispute, misunderstanding, litigation or death, is an invaluable protection for all parties involved.

Although each LLC Operating Agreement is different, an LLC Operating Agreement generally sets forth certain fundamental terms, such as:

  • The ownership percentage of each member
  • The manner in which profits, losses and expenses are allocated
  • The authority of members to bind the LLC and participate in day-to-day management
  • The voting rights of each member in making key decisions
  • The circumstances under which a member may withdraw from the LLC, and the way in which the member’s economic interest is calculated upon withdrawal
  • The ability of a member to sell or pledge his/her interest to a third party
  • Terms contemplating the death or disability of a member
  • The circumstances and terms under which new members may be admitted
  • The circumstances under which the LLC will be liquidated, and the priority of claims among the members upon liquidation
  • Indemnification rights (if any) in the event the LLC or member is sued in connection with the LLC's business

Delaware does not require an LLC Operating Agreement to be filed or added to the Delaware public records. 

Delaware Corporation Privacy

delaware LLC privacyCorporations can also be filed in Delaware through a Registered Agent without listing shareholders, directors or officers on the public record.

However, after the initial filing, every Delaware corporation is required to file a Franchise Tax payment  on or before March 1 of each year and, in doing so, must list the names and addresses of the company's directors and one officer.

This information is required even if your Delaware Registered Agent pays your Franchise Taxes for you. Therefore, this information may be obtained by anyone requesting it from the Delaware Division of Corporations (for a $10 payment). Some states post this information on their websites, but Delaware does not.

When self-filing either type of entity directly with the Delaware Division of Corporations, individuals are required to list their name and address as the incorporator of the company on the formation documents.

These documents can be viewed on the Delaware public record from the first day the company is formed and will remain on the Delaware public record for the life of the company.

Privacy and confidentiality regarding the public record should not be mistaken for invisibility in the eyes of the authorities, should fraud occur and be discovered. The Delaware Attorney General's Office is diligent in punishing the fraudulent use of Delaware companies.

The necessity of possessing the ability to shield a company's ownership from public records plays a valid role in today's business world. Business is very competitive by nature, and the element of confidentiality can be crucial in many perfectly legitimate business transactions that would not happen without strict confidentiality. 

Form Your Delaware LLC

 

Disclaimer

THE AUTHOR OF THIS BLOG ARTICLE IS NOT A LAWYER AND HARVARD BUSINESS SERVICES, INC. IS NOT A LAW FIRM. THE ARTICLE ABOVE IS NOT INTENDED AS LEGAL ADVICE AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. THIS SHORT ARTICLE IS STRICTLY TO MENTION SOME ASPECTS OF DELAWARE’S CORPORATION LAWS AND/OR LAWS RELATING TO OTHER FORMS OF ENTITIES WHICH YOU MAY NOT BE FAMILIAR WITH. WE RECOMMEND THAT YOU CONSULT WITH A LAWYER BEFORE FORMULATING A STRATEGY WHICH WILL BE SUITABLE FOR YOUR SPECIFIC CASE.

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There are 4 comments left for Delaware LLC Privacy: What's on Public Record?

M S Mohideen said: Saturday, November 30, 2019

Do I have to provide a credit card authorization in order to register a Delaware LLC?

HBS Staff replied: Tuesday, December 3, 2019

If you incorporate through Harvard Business Services, you can pay us via credit card, check, or Paypal. We then pay the state of Delaware from our own account.

Diego said: Wednesday, November 6, 2019

So if you contact the Delaware Division of Corporations and someone pays usd 10, they will be informed about the directors ? This point is not clear at all for me., Thank you.

HBS Staff replied: Thursday, November 7, 2019

Yes, after the corporation's first annual report and franchise tax payment (March 1st of the year following the year of incorporation), the report (containing the corporation's directors' information) will be available for purchase by the public. This applies to Delaware corporations but not Delaware LLCs.

Julianne Fox said: Thursday, July 18, 2019

We formed our Delaware LLC with Harvard Business Services, and are happy with the privacy policy afforded to us personally. However, after formation, we filed for our EIN and had to give the IRS my name as the contact person and manager of the LLC, and EIN's are "public record". My question: is my persnal name/privacy revealed by the IRS?. If someone calls the IRS or searches an on-line database for our company name or by our EIN, will my personal name be given with the information? Thank you.

HBS Staff replied: Monday, July 22, 2019

Julianne, the information provided for the EIN is for the IRS use only and it’s not public record. It’s confidential and the IRS will not release any information to a third party without an authorization from the responsible party/owner listed on the account with them and it’s not posted on the IRS website.

ghekiere dirk said: Wednesday, November 22, 2017

we have a joint venture in the usa, a delaware llc. We invested a lot of money but the CEO of the company refuse to send us financial information, balance sheets etc.. The question is where can we find financial reports of a delaware company?

HBS Staff replied: Monday, November 27, 2017

Unless the LLC is operating in the state of Delaware, the financial information would not be listed publically anywhere. You will have to ask the CEO or corporate secretary to provide you with the information.

If the company is operating in Delaware, you can contact the Delaware Division of Revenue, since that is where a Delaware business license would have obtained. Hope this information helps in some way.

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