Business and Commerce

Subject:

Business and Commerce

Requested By:

Mr. Clyde Smith Deputy Secretary of State

Questions:

(1)

May a North Carolina limited partnership formed under Article 5 of Chapter 59 of the General Statutes do business under an assumed name?

(2)

May a foreign limited partnership authorized to transact business in North Carolina under Article 5 of Chapter 59 of the General Statutes use more than the one assumed name permitted by G.S. 59-902(a)(1)?

(3)

If the answer to either question (1) or (2) is yes, must the assumed name contain the words "limited partnership?"

(4)

If the answer to either question (1) or (2) is yes, is the limited partnership required or permitted to file its assumed name under G.S. 66-68?

Conclusions:

(1)

No

(2)

No

(3)

and (4)

Since the answer to Questions (1) and (2) is no, it is not necessary to answer these questions.

Discussion of Question 1

Businesses operating under assumed names are regulated by Articles 14 and 15 of Chapter 66 of the North Carolina General Statutes. These statutes require all persons, partnerships or corporations not excluded by the statute and operating under an assumed name to register an assumed name certificate with the Register of Deeds in any county where they operate under such assumed name. The statute specifically excludes limited partnerships from its coverage. G.S. 66

68.

The Courts of this State have long held that the intent of this statute is to prevent fraud or imposition upon those dealing with a business conducted under an assumed name, and to afford them means for knowing the status and responsibility of the concern with which they deal. Price

v. Edwards, 178 N.C. 493, 101 S.E.33 (1919). Limited partnerships operating under assumed names have the same potential to mislead creditors and others dealing with them as do individuals, partnerships and corporations operating under assumed names. Since limited partnerships were specifically excluded from the provisions of the Assumed Name Statute, G.S. 66-68 et. seq., the logical conclusion is that these limited partherships may not operate under assumed names.

G.S. 59-103 and 59-104 deal specifically with the names of limited partnership and registration requirements. Each of these provisions speaks of only one name for the limited partnership, thus indicating that assumed names may not be used by limited partherships. Further, G.S. 59201(a)(1) requires a certificate of limited partnership to be executed and filed setting forth the name of the limited partnership, again indicating that only one name may be used by such entities.

Thus domestic limited partnerships may not operate under assumed names in this state.

Discussion of Question 2

G.S. 59-902(a)(1), strictly construed, suggests that a foreign limited partnership may only use one assumed name, by using the singular form of the word "name." The foreign limited partnership may change its name in accordance with G.S. 59-104(a)(4), but nothing in Article 5, Chapter 59, expressly or implicitly authorizes the use of more than one assumed name by a foreign limited partnership.

Furthermore, the general provisions on use of assumed names by businesses, G.S. 66-68, specifically exclude limited partnerships from its terms. There is, therefore, no authority in the statute for allowing a foreign limited partnership to operate under any more than one assumed name, and the assumed name under which it operates must be the one registered with the Secretary of State pursuant to G.S. 59-902(a)(1).

Discussion of Question 3

Since Questions (1) and (2) were answered no, no response is given to this question.

Discussion of Question 4

Since Questions (1) and (2) were answered no, no response is given to this question.

LACY H. THORNBURG ATTORNEY GENERAL

L. Darlene Graham Associate Attorney General