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Case Law Update

Venue and Jurisdiction

Goodman v. SeRine Ind.Ct.App. March 31, 2014

Although the sellers’ bankruptcy action had been dismissed, the bankruptcy court that heard the bankruptcy action was the proper venue for a quiet title action on property that was a part of the bankruptcy estate.

Commercial Speech

Miller v. Fed Ex Ind.Ct.App. April 4, 2014

Fed Ex was found immune from suit under the Federal Communications Decency Act as they are providers of an interactive computer service, as defined under Section 230(c).  To qualify for immunity, Fed Ex had to show that they were a provider of an interactive computer service, that the action treated them as the publisher of the information and that the information was provided by another content provider; they successfully did so.

OWI 

Metzger v. State Ind.Ct.App. Mar. 31, 2014

When a blood draw warrant had been issued for a driver who had refused a breath test, the driver’s refusal to cooperate with the blood draw was properly found to be in indirect criminal contempt.

Sentencing

Wilson v. State Indiana Supreme Court April 1, 2014

A “hybrid” sentence for multiple convictions arising out of the same factual circumstance is not authorized by statute.  The trial court, in sentencing a criminal to a partially concurrent and partially consecutive term, acted outside of its authority.

 

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Administrative Dissolution

Imagine moving along day-by-day, business as usual, when you receive mail from the Indiana Secretary of State notifying you that your company has been administratively dissolved.  Some would panic, some would throw the notice away without reading it and some would call their registered agent and/or attorney to figure out just what was going on.  We strongly suggest the latter, understand the panic and advise you to read your mail.

Indiana Code 23-1-46-1 provides:

The secretary of state may commence a proceeding under section 2 of this chapter to administratively dissolve a corporation if:

1) the corporation does not pay within sixty (60) days after they are due any franchise taxes or penalties imposed by this article or other law;

2) the corporation does not deliver for filing its biennial report to the secretary of state within sixty (60) days after it is due;

3) the corporation is without a registered agent or registered office in this state for sixty (60) days or more;

4) the corporation does not notify the secretary of state within sixty (60) days that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or

5) the corporation’s period of duration stated in its articles of incorporation expires.

Failing anyone of these options will result in the Secretary of State dissolving the corporation administratively.  This means that your company is not legally allowed to carry on any business except that business which involves winding up and dissolution.

If you timely respond to the notice provided by the Secretary of State and correct each ground for dissolution to the reasonable satisfaction of the Secretary of State within 60 days, you can avoid this administrative dissolution.  Many small business (if not all) will struggle to survive if they cannot produce revenue over time and may lose clients permanently due to this administrative dissolution.  Once the dissolution is completed, however, there is a reinstatement process that can take up to two to three months.

The reinstatement process is relatively simple and can be completed by you, your registered agent or attorney.  The process includes the following:

Step 1:

Complete forms AD19 Reinstatement Affidavit and ROC-1 Responsible Officer Information forms.  Mail these forms to the Indiana Department of Revenue, and allow at least four weeks for processing.  Once you receive your Certificate Clearance stating that no tax is owed by the entity, continue forward.

Step 2:

Complete State Form 4160 Application for Reinstatement.

Step 3:

Complete State Form 48725 Business Entity Report and pay the filing fees ($15.00 for for-profit entities, $10.00 for non-profit entities) for all years owed.

Step 4: Mail all forms with the Certificate of Clearance from the Department of Revenue to the Secretary of State, along with all fees ($30.00 Reinstatement fee plus all business entity report filing fees.)

Everything must be mailed together and a check or money order must be sent.  No Cash!

Once everything is processed and the Secretary of State is satisfied with your application, your corporation will be reinstated.

What is the lesson from all of this?  Stay on top of your company.  Be organized and practice ordinary business diligence.  Be sure to stay informed, and have a knowledgable registered agent that can assist you with your corporation’s legal maintenance.

 

http://www.urberglaw.com

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