The question of whether rendering professional services is permitted through a Foreign Professional Corporation, meaning formed in a state other than California, is a matter of legal interpretation. This article aims to dissect the legal framework governing the use of Foreign Professional Corporations for architects and professional employees rendering architectural services in California.

In California, the structure and organization of businesses that architects may use to provide architectural services are subject to specific legal and regulatory considerations. Architects must contemplate the most suitable corporate form for tax liability by minimizing both income and self-employment taxes as well as personal liability and personal asset protection concerns such as separating personal and corporate assets and practicing in a business entity that provides limited liability protection to protect personal assets. To undertake their architectural practice without losing sight of the legally permissible forms of business structures, architects should seek the advice and counsel of both experienced corporate attorneys and their tax advisors when choosing a business structure for their architectural practice.

Given the stringent regulations on the provision of architectural services in California, understanding the nuances and requirements is crucial for architects seeking to incorporate their California-based architectural practices in Foreign Professional Corporations. This article endeavors to provide a clear, informative, and practical answer for architects considering the use of a Foreign Professional Corporation for their architectural practice and to inform architects who might currently be practicing architecture in California in a Foreign Professional Corporation of their options to get into compliance with the California Corporations Code, the California Business and Professions Code, and the rules and regulations of the California Architects Board and other governmental agency regulating the profession of architecture.

Executive Summary: Putting the Conclusion First for Busy Architects

California licensed architects may not practice architecture in California using a Foreign Professional Corporation, and instead must opt for a California Professional Architecture Corporation. This prohibition includes Foreign Professional Corporations, similar to the restrictions on the use of a limited liability company for practicing architecture, which precludes the use of both California LLCs as well as foreign LLCs and PLLCs, and non-professional Foreign Corporations, and requires conversion from the California LLC, conversion from the foreign LLC or PLLC, or conversion from the non-professional Foreign Corporation into a California Professional Architecture Corporation.

What is a Foreign Professional Corporation?

A Foreign Professional Corporation is a corporation organized and existing under the laws of a state other than California. A Foreign Professional Corporation may be easily identified by reading the Purpose Statement of the Articles of Incorporation or Certificate of Incorporation. The Purpose Statement of a California Corporation will indicate that the corporation is organized under California law. The Purpose Statement or other language of a Foreign Professional Corporation formed in a state other than California will indicate that the corporation was organized under the laws of a state other than California.

What are the Options for Professionals Who Render Professional Services in California with a Foreign Professional Corporation?

Architects rendering professional services in California within a Foreign Professional Corporation should immediately seek informed legal guidance to either form a new California Professional Architecture Corporation or convert the Foreign Professional Corporation into a California Professional Architecture Corporation to ensure compliance with the nuanced requirements set by the California Corporations Code, the California Business and Professions Code, and the rules and regulations of the California Architects Board or any other governmental agency regulating the profession of architecture before continuing to render professional services in California.

Contact the experienced attorneys at San Diego Corporate Law today for personalized legal solutions tailored to the unique needs of your architectural practice. Our team of corporate attorneys is dedicated to helping you seamlessly transition into a compliant corporate structure, safeguarding the future of your architectural practice and protecting the architectural license you studied and worked hard to obtain.

What are Foreign Professional Corporations?

In the context of rendering professional services in California, Foreign Professional Corporations are out of state corporations formed under the laws of a state other than California for the purpose of practicing a profession such as architecture. While similar in many respects to California Professional Corporations such as California Professional Architecture Corporation, Foreign Professional Corporations differ with respect to the state in which they were formed or are currently registered and their ability to be used for architectural practice by a California licensed architect in California. Understanding the nuances between these corporate structures is essential for architects intending to establish or continue their architectural practices within the legal frameworks of California or any other state. This section will discuss the attributes of both Foreign Professional Corporations and California Professional Architecture Corporations.

What is a California Professional Architecture Corporation?

California Professional Architecture Corporations are specialized entities formed pursuant to the Moscone-Knox Professional Corporation Act specifically for rendering architectural services pursuant to architectural licensing in California. While not all professions in California that require a state license may be formed as a California Professional Corporation, licensed architects have California Professional Corporations and must use a California Professional Architecture Corporation to practice architecture in California in a corporate structure. This differentiation ensures that architects are able to comply with specific legal stipulations governing their architectural practice, including liability and practice requirements, thereby protecting both the architects and the public they serve.

Comparison of Foreign Professional Corporations versus California Professional Architecture Corporations

The key differences between a Foreign Professional Corporation and a California Professional Architecture Corporation are as follows:

• A Foreign Professional Corporation is formed in a state other than California, while a California Professional Architecture Corporation is formed under the laws of the State of California, specifically the Moscone-Knox Professional Corporation Act and the California Corporations Code.
• Foreign Professional Corporations may not lawfully render professional services in California, whereas California Professional Architecture Corporations are specifically designated for rendering the same professional services in California.
• Foreign Professional Corporations other than California Professional Accountancy Corporations and California Professional Law Corporations will have difficulty applying for authority to transact business in California (California foreign qualification or registration) because California Secretary of State Form S&DC-PC, Statement and Designation by Foreign Professional Corporation, only allows California Professional Accountancy Corporations and California Professional Law Corporations to complete the form to apply for authority to transact business in California.

How to Identify Foreign Professional Corporations and California Professional Architecture Corporations?

Since Foreign Professional Corporations cannot be used to render architectural services in California and California Professional Architecture Corporations must be used to practice architecture in corporate form, it is important for every architect to identify whether they are practicing architecture as a Foreign Professional Corporation or a California Professional Architecture Corporation.

The corporate documents of a Foreign Professional Corporation such as the Articles of Incorporation, Bylaws, and Stock Certificates, should contain language specific to the jurisdiction in which the Foreign Professional Corporation was registered. Similarly, the Articles of Incorporation, Bylaws, and Stock Certificates of a California Professional Architecture Corporation should contain language specific to the formation of the California Professional Architecture Corporation under California law and also include language specifying the practice of architecture under the California Professional Architecture Corporation.

Purpose Statement of a Foreign Professional Corporation

A Foreign Professional Corporation may be easily identified by reading the Purpose Statement in the Articles of Incorporation or Certificate of Incorporation. The Purpose Statement of a Foreign Professional Corporation will include language indicating the state laws under which the corporation was formed, and this will be a state other than California, although the specific wording will vary from state to state. In addition, the purpose statement of a Foreign Professional Corporation will also indicate that it is established to practice professionally or specify a certain profession to be practiced. The exact details will vary on a state-by-state basis.

If the Purpose Statement indicates formation of the corporation under the laws of a state other than California law, but does not specify the profession of architecture, those Articles of Incorporation are likely for a Foreign Corporation which may not be used to render professional services in California and should either be converted to or replaced with a California Professional Architecture Corporation for rendering architectural services in California. If the Purpose Statement indicates formation of the corporation under the laws of a state other than California law and specifies professional status for architectural services, those Articles of Incorporation are likely for a Foreign Professional Architecture Corporation which may not be used to render professional services in California and should either be converted to or replaced with a California Professional Architecture Corporation.

Purpose Statement of a California Professional Architecture Corporation

A California Professional Architecture Corporation may be easily identified by reading the Purpose Statement in the Articles of Incorporation. The Purpose Statement of a California Professional Architecture Corporation will read as follows:

“The purpose of the corporation is to engage in the profession of architecture and any other lawful activities (other than the banking or trust company business) not prohibited to a corporation engaging in such profession by applicable laws and regulations. This corporation is a professional corporation within the meaning of California Corporations Code section 13400 et. seq.”

If the Purpose Statement indicates formation of the corporation under California law, but does not specify the profession of architecture, those Articles of Incorporation are likely for a non-professional California General Stock Corporation, such as a California Corporation or California S-Corp, which may be used to render professional architectural services in California may also be converted to or replaced with a California Professional Architecture Corporation for rendering architectural services in California.

What to Do if Practicing Architecture in a Foreign Professional Corporation?

Architects practicing architecture in California using a Foreign Professional Corporation should contact the experienced attorneys at San Diego Corporate Law today for personalized legal solutions tailored to the unique needs of their architectural practice. Our team of corporate attorneys is dedicated to helping architects seamlessly transition into compliant corporate structures, safeguarding the future of their architectural practice and protecting the architectural license they studied and worked hard to obtain.

What are the Options for Architects Rendering Architectural Services in a Foreign Professional Corporation?

In California, architects who discover they are not incompliance with the California Corporation Code, the California Business and Professions Code, and the rules and regulations of the California Architects Board or other governmental agency regulating the profession of architecture agency because they are practicing architecture as a Foreign Professional Corporation should cease operating as a Foreign Professional Corporation as soon as possible.

These architects are presented with two viable pathways to align their business structure with California laws and regulations: (1) forming a new California Professional Architecture Corporation and thereafter dissolving and winding up their Foreign Professional Corporation (unless they will continue to render professional services with the Foreign Professional Corporation outside of California); or (2) converting the existing Foreign Professional Corporation into a California Professional Architecture Corporation. This section of the article will explore the considerations involved in each option, providing a clear roadmap for architects facing the need to navigate this transition.

Forming a New California Professional Architecture Corporation and Dissolving and Winding Up the Foreign Professional Corporation (or Keeping the Foreign Professional Corporation for Rendering Architectural Services Outside of California)

Forming a new California Professional Architecture Corporation as a means to come into compliance with the California laws and regulations for corporate structures permitted to be used for architectural practices is a viable option for architects operating their architectural practice under a Foreign Professional Corporation. This option entails the establishment of a California Professional Architecture Corporation that adheres to the specifics outlined in the Moscone-Knox Professional Corporations Act, the California Corporations Code, and California Business and Professions Code, thereby enabling the architect to legally render architectural services within the State of California.

Forming a California Professional Architecture Corporation

The initial step in forming a California Professional Architecture Corporation is drafting and filing Articles of Incorporation specific to the profession of architecture with the California Secretary of State, including the required filing fee. These Articles of Incorporation should include the required Purpose Statement for a California Professional Architecture Corporation and should also comply with all pertinent codes and regulations specific to the profession of architecture. Subsequently, it is essential to adopt corporate Bylaws that govern the internal operations of the California Professional Architecture Corporation. All of the required language that must be included in the corporate documents of a California Professional Architecture Corporation should be included in the Articles of Incorporation and the corporate Bylaws. A California Statement of Information, Internal Revenue Service EIN, S Corporation election, California Limited Offering Exemption Notice, and FinCEN Beneficial Ownership Information Report should be filed for the new California Professional Architecture Corporation, and all other corporate documents should be drafted and adopted.

Dissolving and Winding Up a Foreign Professional Corporation

Upon the successful formation of the California Professional Architecture Corporation, attention must then turn to the dissolution and winding up of the Foreign Professional Corporation. This process involves settling debts and obligations, distributing any remaining assets, and filing the necessary documentation with the state in which the Foreign Professional Corporation is registered to officially terminate the corporate existence of the Foreign Professional Corporation. An attorney licensed to practice in the state where the Foreign Professional Corporation is registered should assist with the dissolution and winding up of the Foreign Professional Corporation.

Of course, the Foreign Professional Corporation may continue its existence and operations if it will continue to be useful to its owner(s) after the architectural practice in California is transferred to the newly formed California Professional Architecture Corporation.

Converting the Existing Foreign Professional Corporation into a California Professional Architecture Corporation

Not all states allow the conversion of business structures registered in their state to other states. However, if permitted, the process of converting a Foreign Professional Corporation registered in a state other than California into a California Professional Architecture Corporation would allow a professional rendering architectural services in California with a Foreign Professional Corporation to come into compliance with California law.

If permitted by the laws of the state in which the Foreign Professional Corporation was formed and exists, the conversion of an existing Foreign Professional Corporation into a California Professional Architecture Corporation is an alternative to forming a new California Professional Architecture Corporation. The conversion process, when permitted by the foreign jurisdiction, necessitates meticulous planning and strict adherence to California law. This route allows business entities to transition structure without the need to dissolve the original business entity and form a new business entity, thus retaining its existing operational history, relationships, contracts, and potentially Internal Revenue Service EIN if the taxation type of the Foreign Professional Corporation converting is the same as the resulting California Professional Architecture Corporation it is converted into.

Converting a Foreign Professional Corporation into a California Professional Architecture Corporation

The initial step in converting a Foreign Professional Corporation into a California Professional Architecture Corporation is filing Articles of Incorporation Conversion specific to the profession of architecture with the California Secretary of State together with the required filing fee. These Articles of Incorporation Conversion should include the required Purpose Statement for a California Professional Architecture Corporation and should also comply with all pertinent codes and regulations specific to practicing in California.

Subsequent to the filing of Articles of Incorporation Conversion, it is essential to adopt new corporate Bylaws that govern the internal operations of the California Professional Architecture Corporation, as these corporate Bylaws will differ significantly from the corporate Bylaws used by a Foreign Professional Corporation. All of the required language that must be included in the corporate documents of a California Professional Architecture Corporation should be included in the Articles of Incorporation Conversion and the corporate Bylaws.

A California Statement of Information and FinCEN Beneficial Ownership Information Report should be filed after conversion of a Foreign Professional Corporation into a California Professional Architecture Corporation, and all other corporate documents required should be drafted and adopted.

Deciding between Forming a New California Professional Architecture Corporation and Converting a Foreign Professional Corporation

Deciding between forming a new California Professional Architecture Corporation and converting an existing Foreign Professional Corporation into a California Professional Architecture Corporation ultimately depends on the specific circumstances and needs of the architect. Both options have their advantages and disadvantages, and consulting with a legal professional is recommended to determine the best course of action. Factors such as the complexity of the current business structure, potential tax implications, and timeline for transition should be carefully considered before making a decision. However, the following presents some of the considerations that should be examined when choosing a path toward rendering architectural services in California with a California Professional Architecture Corporation.

When is Forming a New California Professional Architecture Corporation and Dissolving and Winding Up a Foreign Professional Corporation the Best Option?

Transitioning to a California Professional Architecture Corporation not only assures compliance with California law but also provided the limited liability status for professional shareholders, which is crucial for protecting personal assets from business liabilities. Additionally, it aligns the business structure not only with the norms and expectations of the architectural practice within California, potentially enhancing its legitimacy and reputation among peers and clients, but also complies with the legal requirements for the architectural practice in California.

Forming a new California Professional Architecture Corporation and dissolving and winding up the previously used Foreign Professional Corporation is generally the less expensive of the two options, however, if the administrative burden of managing contracts with clients, vendors, business bank accounts, loss of operating history, or insurance coverage or panels would be less cumbersome with a conversion of the Foreign Professional Corporation into a California Professional Architecture Corporation, the higher legal fees may justify using the conversion option as opposed to the formation of a new California Professional Architecture Corporation and the dissolution and winding up of the Foreign Professional Corporation.

When is Converting a Foreign Professional Corporation into a California Professional Architecture Corporation the Best Option?

Conversion of a Foreign Professional Corporation into a California Professional Architecture Corporation presents a practical option for architects seeking to align their corporate structure with the legal regulatory requirements of California laws and regulations without disrupting the continuity of their business operations. While legal fees for conversion are generally higher than forming a new California Professional Architecture Corporation, conversion allows for a seamless transition without the need to dissolve and wind up the Foreign Professional Corporation. Additionally, it also preserves existing contracts, relationships, and operational history of the business entity.

Converting a Foreign Professional Corporation into a California Professional Architecture Corporation is ideal for architects who have already established a successful business presence in California but want to bring their corporate structure into compliance with California law.

Conclusion

Architects navigating the transition from practicing under a Foreign Professional Corporation to practicing under a California Professional Architecture Corporation should consult with legal and financial advisors to ensure a seamless and compliant shift from the Foreign Professional Corporation to the California Professional Architecture Corporation. Legal and financial advisories play a key role in navigating the new California Professional Architecture Corporation formation process or Foreign Professional Corporation conversion process, ensuring that the transition not only complies with California laws and regulations, but also positions the architectural practice for sustained success and growth within the legal framework of a California Professional Corporation.