(1972) , 61 Op. Att'y Gen. 349 ( 1972 )

ROBERT C. ZIMMERMAN, Secretary of State

You have requested my advice concerning the proper county for filing and recording documents of a corporation organized under ch. 180, Stats., after the resignation of the corporation's registered agent, pursuant to sec. 180.105, Stats., has become effective.

Corporations are required to have and maintain a registered agent and a registered office pursuant to sec 180.09, Stats., which provides that:

"Registered office and registered agent. Each corporation,shall have and continuously maintain in this state:

"(1) A registered office which may be, but need not be, the same as it place of business.

"(2) A registered agent, which agent may be either an individual resident in this state whose business office is identical with such registered office, or a domestic corporation, or a foreign corporation authorized to transact business in this state, having a business office identical with such registered office." (Emphasis added)

The purpose of this requirement "is to insure that all corporations maintain a convenient and accessible agent for the service of process, and for all other matters pertaining to the general supervisory control of the State of Wisconsin over its corporations." 55 OAG 24 (1966)

A registered agent may resign his position by executing a statement to that effect pursuant to sec. 180.105, Stats. Section 180.105 (3) and (4), Stats., specifically provides that:

"(3) Such statement shall be filed and recorded. At the time of filing, a triplicate shall be delivered to the secretary of state. On receipt from the register of deeds of the certificate showing the recording of the duplicate original of the statement, the secretary of state shall note on the triplicate the date of recording and mail the same to the corporation at its principal place of business as shown by the records in his office.

"(4) If no change of registered agent is previously made, the resignation shall be effective on the expiration of 60 days after the date of recording the statement, and the office of the resigned registered agent shall then cease to be the registered office of the corporation."

You advise that subsec. (4) is interpreted by your office to mean that, upon the effectiveness of the agent's resignation, the corporation no longer has a registered office. You note that this results in a situation where the corporation appears to be prevented from recording subsequent documents pursuant to sec. 180.86, Stats., which requires that duplicate originals of corporation documents filed with the Secretary of State's office "shall be recorded in the office of the register of deeds of the county in which the registered office of the corporation is located. * * *"

In a situation where a corporation is technically prevented from following the procedure set forth in sec. 180.86, Stats., our office has previously stated, in a letter to you dated January 22, 1970, that the procedure set forth in sec. 180.10, Stats., which provides the method by which a corporation may change its registered office or its registered agent may be used to "change" the registered agent of a corporation in those cases where the registered agent of the corporation has resigned or passed away.

As I noted in our previous opinion, the terms of sec. 180.10, Stats., do not explicity lend themselves to the situation described. That letter indicated, however, that:

"* * * Any other interpretation would necessarily work to penalize a given corporation upon the death of its registered agent or its failure to change its registered agent within sixty days after his resignation. I do not believe that such was the intent of this statute.

"Use of the form which you provide and compliance with the terms of sec. 180.10 will accomplish the end which registration with your office is intended to accomplish."

I, therefore, recommend that a corporation which fails to maintain a registered office pursuant to sec. 180.09, Stats., be requested by your office to establish a new registered agent and registered office pursuant to sec. 180.10, Stats., by filing the necessary papers with your office and the register of deeds of the proper county or counties.

If the situation arises where a nonconforming corporation fails to comply with the foregoing request of your office, that corporation may be dissolved involuntarily by your office pursuant to sec. 180.769 (1) (d), Stats., which provides that:

"Involuntary dissolution. (1) A corporation may be dissolved involuntarily by a decree of any circuit court in an action commenced by the attorney-general when it is established that:

"* * *

"(d) The corporation has failed for 30 days to appoint and maintain a registered agent in this state; or

"(e) The corporation has failed for 30 days after change of its registered office or registered agent to file in the office of the secretary of state a statement of such change: * * *"

In those instances where the Secretary of State does not obtain compliance with his request, he should notify the Attorney General of the matter with a request that he take the necessary legal action.

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