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Mergers and Conversions FAQs

The answers to our Frequently Asked Questions are provided for informational purposes and are not intended to provide legal advice or to substitute for the advice of an attorney. If you have specific legal questions, consult your attorney.

General Merger and Conversion Questions

  1. Does the secretary of state have merger or conversion forms?
  2. I cannot find a form on the secretary of state’s website that will work for my situation. What do I do?
  3. Can I file my merger or conversion document online?
  4. My merger or conversion transaction is time sensitive. What is the quickest way to get my instrument filed?
  5. How do I get a Certificate of Account Status for tax clearance purposes?
  6. What are the most common reasons for rejecting a merger or conversion filing instrument?

  1. Does the secretary of state have merger or conversion forms?

    Yes. The secretary of state has adopted a number of forms that meet the minimum statutory filing requirements for certain specific types of mergers and conversions under the Texas Business Organizations Code (BOC). (Forms 621-647) Use of these forms is optional.

  2. I cannot find a form on the secretary of state’s website that will work for my situation. What do I do?

    The secretary of state has not adopted forms to cover every type of merger or conversion transaction. For example, we have not adopted forms for conversions in connection with a conversion and continuance involving a non-United States entity.

    You may wish to consult the Texas Business Organizations Code (BOC) and a private attorney to draft any instrument required for your transaction. Our office will pre-clear an instrument upon written request and the fee is $50 per instrument.

  3. Can I file my merger or conversion document online?

    It depends. Merger documents cannot be submitted through either SOSDirect or SOSUpload, the secretary of state’s online filing options. You may submit your merger instrument by mail, fax, or in-person delivery.

    Conversion documents can be submitted through SOSUpload as well as by mail, fax, or in-person delivery. SOSDirect is not available to accept conversion instruments.

  4. My merger or conversion transaction is time sensitive. What is the quickest way to get my instrument filed?

    Expedited Handling Service. We will email confirmation of processing to the email address you provide.

    To receive expedited handling service, you must:

    • include an explicit written request for expedited handling service at the time of submission;
    • provide an email address and daytime phone number where you may be reached; and
    • add $25 to the filing fee for each document to be expedited

  5. How do I get a Certificate of Account Status for tax clearance purposes?

    The Comptroller of Public Accounts provides information concerning requirements for obtaining a certificate of account status for purposes of termination, merger, conversion or withdrawal. To request a Certificate of Account Status, use Comptroller Form 05-359 (PDF) and/or contact the Comptroller at:

    Tax Assistance Section,
    Comptroller of Public Accounts
    Austin, Texas 78774-0100
    (512) 463-4600; toll-free (800) 252-1381; (TDD) (800) 248-4099
    e-mail

    Some entities may be able to use the Comptroller’s WebFile to obtain a certificate or letter electronically. Please see the Comptroller’s website for more information on self-service requests.

  6. What are the most common reasons for rejecting a merger or conversion filing instrument?

    • Failure to include the additional statements in a certificate of formation that are required for Texas entities created through mergers or conversions. Please see BOC § 3.005(a)(8).
    • Failure to obtain the appropriate certificate of account status from the Texas Comptroller of Public Accounts or to provide the alternative statement regarding payment of all required franchise taxes by one or more of the surviving, new, or acquiring organizations (mergers) or by the converted entity (conversions).

Mergers

  1. Do I need to attach the plan of merger?
  2. I need to attach a certificate of formation to my merger instrument. Can I use one of the secretary of state’s forms for the certificate of formation?
  3. Do I need tax clearance for the merger? If so, what do I need to provide with the filing instrument?
  4. When is a merger effective? Can I delay the effectiveness of my merger?
  5. What are the filing fees for a merger?
  6. Who has to sign the filing instrument?
  7. Can a Texas for-profit entity merge with a Texas nonprofit corporation?

  1. Do I need to attach the plan of merger?

    A merger filing instrument must include either (1) the plan of merger or (2) the statements set out in section 10.151(b)(1) of the BOC. The secretary of state merger forms include an option for providing the alternative statements.

  2. I need to attach a certificate of formation to my merger instrument. Can I use one of the secretary of state’s forms for the certificate of formation?

    Yes. However, if you attach a certificate of formation form to your merger instrument, please note that the certificate of formation must contain additional statements that are not included in the secretary of state forms. You can add the required statements to the “Supplemental Provisions” section of the secretary of state forms.

    A certificate of formation attached to a merger filing instrument must include the statement that the entity is formed under a plan of merger.

  3. Do I need tax clearance for the merger? If so, what do I need to provide with the filing instrument?

    The filing instrument must either (1) be accompanied by a certificate of account status (Form 05-305) from the Texas Comptroller of Public Accounts, or (2) state that one or more of the surviving, new, or acquiring organizations is liable for the payment of the required franchise taxes.

  4. When is a merger effective? Can I delay the effectiveness of my merger?

    Generally, an instrument is effective when it is filed by the secretary of state. However, the effectiveness of a merger filing can be delayed:

    • to a specified future date within 90 days of the date the instrument is signed, or
    • upon the occurrence of a specified event that will occur within 90 days from the date the instrument is signed.

    Secretary of state merger forms contain delayed effective provisions. If an instrument specifies a delayed effective condition, within 90 days of the filing date, the entity must file a statement that the relevant fact or condition has occurred. (Form 805 (Word 73kb, PDF 40kb). If no statement is filed, the instrument will not be effective.

  5. What are the filing fees for a merger?

    The filing fees for a merger are $300 ($50 for nonprofit corporations and cooperatives) plus the filing fee for any new Texas filing entity created by the merger. For example:

    • The filing fee for the merger of a Texas corporation that creates a new Texas limited partnership is $300 plus $750 for a total of $1050.
    • The filing fee for the merger of a Texas limited liability company that creates a Texas corporation is $300 plus $300 for a total of $600.
    • The filing fee for the merger of a Texas entity that does not create any new Texas filing entities is $300.

  6. Who has to sign the filing instrument?

    Generally, a managerial official of each party to the merger.

  7. Can a Texas for-profit entity merge with a Texas nonprofit corporation?

    Yes; however, certain restrictions apply. Section 10.010 of the BOC requires that the Texas nonprofit corporation continue as the surviving entity to the merger.

    In addition, section 10.010 of the BOC prohibits a Texas nonprofit corporation from merging with another entity if the Texas nonprofit corporation, because of the merger, will lose or impair its charitable status. The secretary of state cannot advise you on whether a particular merger transaction would impair a Texas nonprofit corporation’s charitable status; please consult with a private attorney.

Conversions

  1. Do I need to attach the plan of conversion?
  2. I need to attach a certificate of formation to my conversion instrument. Can I use one of the secretary of state’s forms for the certificate of formation?
  3. Do I need tax clearance for the conversion? If so, what do I need to provide with the filing instrument?
  4. When is a conversion effective? Can I delay the effectiveness of my conversion?
  5. What are the filing fees for a conversion?
  6. Who has to sign the filing instrument?
  7. May I convert a Texas for-profit corporation to a nonprofit corporation?
  8. I want to convert or re-domesticate my out-of-state entity to a Texas filing entity. What do I need to file with the Texas Secretary of State?

  1. Do I need to attach the plan of conversion?

    A conversion filing instrument must include either (1) the plan of conversion or (2) the statements set out in section 10.154(b)(1) of the BOC. The secretary of state conversion forms include an option for providing the alternative statements.

  2. I need to attach a certificate of formation to my conversion instrument. Can I use one of the secretary of state’s forms for the certificate of formation?

    Yes. However, if you attach a certificate of formation form to your conversion instrument, please note that the certificate of formation must contain additional statements that are not included in the secretary of state forms. You can add the required statements to the “Supplemental Provisions” section of the secretary of state forms.

    A certificate of formation attached to a conversion filing instrument must state (1) that the entity is formed under a plan of conversion and (2) the name, address, date of formation, entity type, and jurisdiction of formation of the converting entity (the entity before the conversion).

  3. Do I need tax clearance for the conversion? If so, what do I need to provide with the filing instrument?

    The filing instrument must either (1) be accompanied by a certificate of account status (Form 05-304) from the Texas Comptroller of Public Accounts when the converted entity is a taxable entity, or (2) state that the converted entity is liable for the payment of the required franchise taxes.

  4. When is a conversion effective? Can I delay the effectiveness of my conversion?

    Generally, an instrument is effective when it is filed by the secretary of state. However, the effectiveness of a conversion filing can be delayed:

    • to a specified future date within 90 days of the date the instrument is signed, or
    • upon the occurrence of a specified event that will occur within 90 days from the date the instrument is signed.

    Secretary of state conversion forms contain delayed effective provisions. If an instrument specifies a delayed effective condition, within 90 days of the filing date, the entity must file a statement that the relevant fact or condition has occurred. (Form 805 (Word 73kb, PDF 40kb). If no statement is filed, the instrument will not be effective.

  5. What are the filing fees for a conversion?

    Generally, $300 ($50 for nonprofit corporations) plus the filing fee for the converted entity (the entity after the conversion), if the converted entity is a Texas filing entity. For example:

    • The filing fee for converting a Nevada corporation to a Texas limited liability company is $300 plus $300, for a total of $600.
    • The filing fee for converting a Delaware limited liability company to a Texas limited liability company is $300 plus $300, for a total of $600.
    • The filing fee for converting a Texas corporation to a Texas limited liability company is $300 plus $300, for a total of $600.
    • The filing fee for converting a Texas professional association to a Texas limited partnership is $300 plus $750, for a total of $1050.
    • The filing fee for converting a Texas limited liability company to a Texas general partnership is $300.
    • The filing fee for converting a Texas limited liability company to a Delaware limited liability company is $300.

  6. Who has to sign the filing instrument?

    Generally, a managerial official of the converting entity (the entity before conversion).

    • In the case of a Texas corporation, professional association, or cooperative, an officer must sign the instrument.
    • In the case of a Texas limited liability company, a manager must sign the instrument, unless the company is managed by its members. If the limited liability company is managed by its members, the instrument must be signed by an authorized member.
    • In the case of a Texas limited partnership or general partnership, a general partner must sign the instrument.

  7. May I convert a Texas for-profit corporation to a nonprofit corporation?

    Yes. The provisions of the Texas Business Organizations Code do not prohibit the conversion of a Texas for-profit corporation to a nonprofit corporation. However, a Texas nonprofit corporation may not convert to a for-profit entity. See BOC § 10.108.

  8. I want to convert or "re-domesticate" my out-of-state entity to a Texas filing entity. What do I need to file with the Texas Secretary of State?

    If you are planning to convert a foreign entity to a Texas filing entity, you should first make sure the conversion transaction complies with the law of the entity’s current jurisdiction of formation and the entity’s governing documents, as well as the Texas Business Organizations Code (BOC). After you have determined that the transaction is lawful, and after the transaction has been approved by the entity, you would simultaneously submit the following to the Texas Secretary of State:

    • Certificate of Conversion (See Form 647);
    • Certificate of Formation for the Texas filing entity (See Forms 201-207) that includes the supplemental provisions required under section 3.005(8) of the BOC; and
    • The appropriate filing fee (See FAQ #5).

    For information regarding filing the conversion transaction with the entity’s current jurisdiction of formation, please contact the appropriate filing office in that jurisdiction.

    Please note that a foreign entity converting into a Texas real estate investment trust (REIT) would follow county filing requirements under sections 4.009 and 10.155(c) of the BOC.