Opinion No. 72-129 (1972) Ag ( 1972 )

** Summary ** BUSINESS CORPORATION ACT APPLICABLE TO PROFESSIONAL CORPORATIONS County Clerks are required to file copies of articles of incorporation issued by the Secretary of State to professional corporations in the same manner that said articles would be filed under provisions of the "Business Corporation Act." Fees to be charged for filing articles of incorporation are set out in Title 18 O.S. 1.247 [18-1.247] (1971); those fees would be applicable to the filing of articles of incorporation for a professional corporation. You have by letter requested an opinion of the Attorney General on the following questions: "1. Are County Clerks required or authorized to accept for filing and file copies of articles of incorporation issued by the Secretary of State to professional corporations under 18 O.S. 803 [18-803] (1971)? "2. If you answer question 1 in the affirmative, what fees should be charged?" Consideration of your first question must begin with an examination of the provisions of the "Professional Corporation Act" Title 18 O.S. 801 [18-801] (1971) et seq.). Such an examination reveals a clearly expressed legislative intent that provisions of the "Business Corporation Act" (Title 18 O.S. 1.1 [18-1.1] (1971) et seq.) shall apply to professional corporations, unless those provisions conflict with provisions of the "Professional Corporation Act." This intention is lucidly stated in 18 O.S. 805 [18-805] (1971), as follows: "Applicability of Business Corporation Act. The Business Corporation Act shall be applicable to professional corporations, and they shall enjoy the powers and privileges and be subject to the duties, restrictions, and liabilities of other corporations, except where inconsistent with the letter and purpose of this act. This act shall take precedence in the event of any conflict with provisions of the Business Corporation Act or other laws." (Emphasis added) The "Business Corporation Act" by virtue of the provisions of 18 O.S. 1.246 [18-1.246] and 18 O.S. 1.247 [18-1.247] requires a county clerk to file articles of incorporation and designates the charges for filing. These two (2) sections are as follows: " 1.246 Alphabetical list of corporations. a. It shall be the duty of the Secretary of State to keep and maintain in his office permanent card files containing the names, alphabetically arranged, of all domestic and domesticated corporations. "b. It shall be the duty of the county clerk of each county in this State to keep and maintain in his office permanent card files containing the names, alphabetically arranged, of all domestic and domesticated corporations any records of which are filed in his office under the provisions of this Act. " 1.247 Filing and other service fees. a. The Secretary of State, for services performed in his office, for expense of mailing, and for filing in the office of the county clerk, shall charge and collect the following fees in addition to the fees provided by Section 111, of Title 28 O.S. 1951 [28-1951]: "(1) For articles, or amended articles, of incorporation, of consolidation, of merger, of reorganization, of revival and extension, of dissolution, of domestication, or of withdrawal, Eight Dollars ($8.00), (plus Two Dollars ($2.00) for each county in which a copy of such articles and corresponding certificate are required to be filed; in the case of amended articles of incorporation changing the location of the registered office from one county to another, Twelve Dollars ($12.00) provided that corporations organizing for religious, educational or charitable purposes exclusively shall only be required to pay a fee of Two Dollars ($2.00) for all of such services; "(2) For any other report, statement, or other document required to be filed both in the office of the Secretary of State and in the office of the county clerk of one county, Five Dollars ($5.00); if a filing be required in more than one county, Two Dollars ($2.00) shall be added for each such additional county; "(3) For any other report, document, or other paper required to be filed only in the office of the Secretary of State, Three Dollars ($3.00); "(4) For issuing a certificate of reservation of corporate name, Two Dollars ($2.00); "(5) For issuing extra copy of any certificate not requiring any extra filing of papers or documents of any kind, Two Dollars ($2.00); "(6) For issuing any other certificate, Two Dollars ($2.00); "(7) For copying any report, document, or other paper on file in the office of the Secretary of State pursuant to the provisions of this Act, for each one hundred (100) words, ten cents ($.10); for each carbon copy in addition to the original copy, for each one hundred (100) words, five cents ($.05); and "(8) For receiving service of process against any corporation, for each corporation upon which such service is made, Two Dollars ($2.00). "b. For the purpose of computing the fees to be collected by the Secretary of State under Section 111, Title 28, Oklahoma Statutes, 1941, for filing articles of incorporation, each share without par value shall be treated the same as a share with a par value of Fifty Dollars ($50.00), and the fees thereon shall be collected accordingly. "c. All fees paid to the Secretary of State in accordance with the provisions of the Act shall be properly accounted for and shall be paid into the State Treasury quarterly; provided, that the expense of postage for forwarding any documents to the county clerk of any county for filing in such county and amounts forwarded to such clerk as his filing fee as provided in this Act shall be deducted from and paid out of the fees collected and such amounts expended by the Secretary of State shall be properly accounted for but are not required to be paid into the State Treasury. "d. The Secretary of State shall remit to the county clerk with each document forwarded to such clerk for filing pursuant to the provisions of this Act as ($1.00); each set of papers or documents requiring a single filing shall be construed to be a separate document for the purpose of this Section. "e. The county clerk of any county shall collect the same amount as a fee for copying any report, document, or other paper on file in his office pursuant to the provisions of this Act as collectible by the Secretary of State for such services pursuant to Subsection a (7) of this Section. For a certification of such copy or for any other certificate supplied by him such clerk shall receive a fee of one dollar ($1.00). Such fees shall be properly accounted for and shall be paid into the county treasury in the same manner as other fees collected by the county clerk for filing and recording of mortgages and deeds. "f. In any court proceeding pursuant to the provisions of this Act requiring the filing of any decree, order, report, or other document in the office of the Secretary of State or in the office of any county clerk, in addition to the usual court costs and the costs for filing in the office of the clerk of the court, fees equal to the amounts provided for in this Section for such required filing shall be collected as costs in such proceedings and such amount shall be forwarded to the Secretary of State and the county clerk with the papers to be filed." The foregoing provisions of the "Business Corporation Act" do not conflict with any of the provisions of the "Professional Corporation Act;" therefore, it is the opinion of the Attorney General that county clerks are required to file copies of articles of incorporation issued by the Secretary of State to professional corporations in the same manner that said articles would be filed under provisions of the "Business Corporation Act." Your second question concerning fees to be charged for filing articles of incorporation for a professional corporation can also be answered by referring to the "Business Corporation Act." The same reasoning, which supports the answer to your first question applies to the answer of your second question. Fees to be charged for filing articles of incorporation are set out in Title 18 O.S. 1.247 [18-1.247] (1971), cited above; and it is the opinion of the Attorney General that those fees would be applicable to the filing of articles of incorporation for a professional corporation. (Jeff L. Hartmann)