Delaware Certificate of Revival: Section 312, Back Taxes, and Filing

A Delaware Certificate of Revival restores a corporation whose charter has been declared void or forfeited, bringing it back to good standing under Title 8, Section 312 of the Delaware General Corporation Law. The filing fee is $189, but the real cost is the back franchise taxes, penalties, and interest that must be paid before the Division of Corporations will process the filing. Once revived, the corporation is treated as though its charter had never lapsed, and every act taken in its name during the void period is validated retroactively.¹

When Section 312 Revival Applies

Two situations put a Delaware corporation into the territory Section 312 covers. The first is a void charter: if the corporation fails to pay its franchise tax or file a complete annual franchise tax report for one year, the Secretary of State declares the charter void and all corporate powers inoperative. A warning goes out by November 30, and the corporation has until March 1 of the following year to cure before the void takes effect.² The second is forfeiture: if the registered agent resigns and the corporation does not appoint a replacement within 30 days, the charter is forfeited.³ In either case the corporation cannot legally operate, contract, or sue. The Section 312 Certificate of Revival fixes both.

Section 312 has no time limit. A corporation that has been void for decades can still revive. That is different from Section 311, which covers corporations that voluntarily dissolved or whose charters expired by their own time limit; Section 311 requires a shareholder vote and must be filed within three years of dissolution.¹ If your corporation was voluntarily dissolved, Section 312 is not your statute.

What the Certificate Must Contain

Section 312(d) requires specific information on the face of the certificate:¹

The corporation’s original name at incorporation, the name at the time the charter became void, and a new name if the original is no longer available.
The address of the corporation’s registered office in Delaware and the name of its registered agent at that address.
The date the certificate of incorporation was originally filed.
The date the charter became void or forfeited.
A statement that the certificate is filed by authority of the board of directors or governing body.

The filing fee is $189, plus $9 for each page beyond the first.⁴ The certificate can be submitted by mail, in person, or electronically through the Division of Corporations, and expedited processing is available for an additional fee.

Who Can Authorize the Filing

The board of directors authorizes the revival. For this purpose, the board consists of whoever would have been the directors if the corporation had never been voided, and a majority of remaining directors, or even a sole remaining director, can authorize the filing. The usual quorum rules do not apply.¹

When no directors are available, stockholders can elect a new board by calling a special meeting. Any officer or stockholder can call that meeting by giving notice under Section 222, and the newly elected board authorizes the revival. The Division of Corporations’ form asks for the signature of an “authorized officer,” but the underlying authority runs through the board.⁵

Back Taxes, Penalties, and the Five-Year Rule

Delaware will not process the revival until all franchise taxes, penalties, and interest are paid. How much that comes to depends on how long the corporation has been out of good standing.

Delaware uses one of two franchise tax calculation methods, with a minimum of $175 per year under the authorized shares method or $400 per year under the assumed par value capital method, and a maximum of $200,000 annually for most corporations.⁶ On top of the tax, Delaware imposes a $200 penalty for failure to file the annual report by March 1, and interest accrues at 1.5% per month on the unpaid tax and penalty balance.⁷

Void Five Years or Less

The corporation pays every year of back franchise tax, every $200 annual penalty, and accrued interest from the time the charter became void. A corporation at the $175 minimum that has been void for four years owes $700 in back tax alone, before penalties and interest.

Void More Than Five Years

Instead of paying every year of accumulated tax and penalties, a corporation void for more than five years pays three times the annual franchise tax that would be due for the year of revival.¹ At the $175 minimum, that is $525. For larger corporations with higher assessments, the cap can save substantial money against what five-plus years of back taxes, penalties, and compounding interest would otherwise total. This payment does not cover the franchise tax owed for the current year of revival; that bill is separate.

Before you file, contact the Delaware Franchise Tax Section to get the exact amount owed. The calculation involves your tax method, the number of void years, and compounding interest, and filing with an underpayment delays processing.

If the Name Is Taken

If another Delaware entity, domestic or foreign, adopted your name or a confusingly similar one while your charter was void, you cannot revive under the original name. Section 312(f) requires you to choose a new name and put it in the Certificate of Revival.¹ Check availability through the Division of Corporations’ entity search before preparing the certificate. The revival itself acts as an amendment to the certificate of incorporation for the name change, so you do not need a separate amendment filing, but you will want to update operating agreements, bank accounts, contracts, and any state or federal registrations that reference the old name.

Registered Agent

The certificate must list a current registered agent and Delaware registered office. If your previous agent resigned during the void period, which happens often when fees go unpaid, arrange a new one before filing.⁸ Professional registered agent services in Delaware typically charge between $50 and $200 per year. Lack of a registered agent is itself grounds for forfeiture, so lining up a reliable agent before revival keeps the corporation from falling right back out of good standing.

What Revival Legally Does

Revival is not just a database status change. Section 312(e) says the corporation is revived “with the same force and effect as if its certificate of incorporation had not been forfeited or void.”¹ Every contract entered during the void period is validated. Every act taken by directors, officers, and agents in the corporation’s name is treated as legitimate. Property and credits that belonged to the corporation when it went void, and anything acquired afterward, vest back in the corporation. The flip side: the corporation is also liable for everything done in its name during the void period, as though the charter had been in effect the whole time. Shareholder voting and dividend rights resume, and creditors keep their claims.

If You Are Reviving an LLC Instead

If the entity is a Delaware LLC rather than a corporation, Section 312 does not apply. LLC revival runs through Title 6, Section 18-1109, with its own certificate.⁹ The information required is largely the same, and all back taxes, penalties, and interest must be paid. The filing fee is $220 rather than $189.⁴ The LLC certificate of revival is treated as an amendment to the certificate of formation, so no separate amendment is needed for a new name or registered agent.

After the Certificate Is Filed

Delaware revival restores the charter, but a few things still need attention.

Confirm the current year’s annual franchise tax report has been filed. Delaware domestic corporations file by March 1 each year, and if revival happens mid-year the current year’s report may still be outstanding.⁷ Some banks freeze accounts of voided corporations; the filed Certificate of Revival together with a certificate of good standing is usually what unfreezes them. Check whether state or federal income tax returns were missed during the void period.

For a tax-exempt corporation, state revival does not fix the federal side. The IRS automatically revokes tax-exempt status when an organization fails to file required Form 990 returns for three consecutive years. If that happened during the void period, you face a separate federal reinstatement process. Smaller organizations eligible to file Form 990-EZ or 990-N can use streamlined retroactive reinstatement if they have not been revoked before, and the application must be submitted within 15 months of the revocation letter or the date the organization appeared on the IRS Revocation List. Larger organizations, or those that have been revoked before, must show reasonable cause for the failure to file. In both cases the organization files the missing returns and submits a new exemption application with the applicable user fee.¹⁰

For-profit corporations have no equivalent automatic federal revocation, but any federal returns missed during the void period should be filed promptly after revival to limit separate IRS penalties.

1
Justia. Delaware Code 8-312 – Revival of Certificate of Incorporation
2
Justia. Delaware Code 8-510 – Failure to Pay Tax or File a Complete Annual Report for 1 Year; Charter Void; Extension of Time
3
State of Delaware. Delaware ECORP Field Descriptions
4
Delaware Division of Corporations. Schedule of Fees
5
Delaware Division of Corporations. Certificate for Revival of Charter for a Voided Corporation
6
Delaware Division of Corporations. How to Calculate Franchise Taxes
7
Delaware Division of Corporations. Annual Report and Tax Instructions
8
Delaware Division of Corporations. Renewal For All Entities
9
Justia. Delaware Code 6-18-1109 – Revival of Domestic Limited Liability Company
10
Internal Revenue Service. Automatic Revocation – How to Have Your Tax-Exempt Status Reinstated