CHAPTER 1. INDIANA BUSINESS TRUST ACT
IC 23-5
ARTICLE 5. OTHER BUSINESS ASSOCIATIONS
IC 23-5-1
Chapter 1. Indiana Business Trust Act
IC 23-5-1-1
Short title
Sec. 1. This chapter may be cited as the Indiana Business TrustAct of 1963.
(Formerly: Acts 1963, c.353, s.1.) As amended by P.L.34-1987,SEC.324.
IC 23-5-1-2
Definitions
Sec. 2. For the purpose of this chapter:
(a) A "business trust" is an unincorporated business associationwhich is created by a trust instrument, pursuant to common law orenabling legislation, under which property is held, managed,administered, controlled, invested, reinvested, or operated, orbusiness or professional activities for profit are carried on, by atrustee or trustees for the benefit and profit of such person or personsas are or may become the holders of transferable certificates, issuedpursuant to the provisions of the trust instrument, which have eitherrestricted or unrestricted transferability, evidencing beneficialinterests in the trust estate, including but not limited to a trust of thetype known at common law as a business trust, or Massachusettstrust, or a trust qualifying as a real estate investment trust underSection 856 of the Internal Revenue Code or under any similarstatute. Such business trust may provide that the holders of suchcertificates are entitled to the same limitation of personal liabilityextended to stockholders of private corporations for profit. Abusiness trust shall not be construed to include, and this chapter shallnot apply to, the form of trust known as a land trust, under which atrustee or trustees holds the legal or equitable title to real estate,which does not issue transferable certificates of beneficial interestand which has less than one hundred beneficiaries. Nothing in thespecific exclusion shall be construed to enlarge the operation orapplication of this chapter.
(b) A "domestic business trust" is one created under the laws ofthis state.
(c) A "foreign business trust" is one created under the laws of aterritory or state other than Indiana.
(d) The "corpus" of any business trust shall consist of its networth and shall be equivalent to the capital, paid-in surplus, andaccumulated earnings or earned surplus of a corporation.
(Formerly: Acts 1963, c.353, s.2.) As amended by P.L.2-1987,SEC.33.
IC 23-5-1-3 Business trust created prior to chapter
Sec. 3. A business trust is hereby declared to be a permitted formof association for the conduct of business in this state, provided theprovisions of this chapter are complied with, except that nothingcontained in this chapter shall be construed to limit, prohibit, orinvalidate the existence, acts, or obligations to the state or to anyperson, of any business trust created or doing business in this stateprior to August 12, 1963.
(Formerly: Acts 1963, c.353, s.3.) As amended by P.L.34-1987,SEC.325.
IC 23-5-1-4
Required filings; recordation
Sec. 4. (a) Any business trust, whether domestic or foreign,desiring to transact business in this state, shall file the followingdocuments and information in the office of the secretary of state, onsuch forms, if any, as such secretary may prescribe:
(1) An executed copy of the trust instrument by which the trustwas created and of all amendments thereto or a true and correctcopy thereof certified to be such by a trustee thereof before anofficial authorized to administer oaths or by a public official ofanother state, territory, or country in whose office an executedcopy thereof is on file.
(2) A verified list of the names and addresses of its trustees.
(3) A balance sheet, certified by an independent certified orpublic accountant or firm of accountants as of the date noearlier than sixty (60) days prior to such date of filing, fairlyand truly reflecting its assets and liabilities and specificallysetting out its corpus and showing a net worth of not less thanone thousand dollars ($1,000). A foreign business trust shallalso file a statement showing the same information required ofa foreign corporation under IC 23-1.
(4) The location of its registered office in this state and thename of its resident agent in charge of such registered office.
(b) A foreign business trust shall comply with and be subject toall the provisions of IC 23-1 as though it were a foreign corporation.Before commencement of business in Indiana every trust, domesticor foreign, shall record in the office of the county recorder of thecounty in which the principal office of said business trust in this stateis located a copy of the trust instrument duly bearing the file mark ofthe secretary of state.
(Formerly: Acts 1963, c.353, s.4.) As amended by P.L.149-1986,SEC.48; P.L.34-1997, SEC.13.
IC 23-5-1-5
Application and filing fees
Sec. 5. Contemporaneously with the filing in the office of thesecretary of state of the instruments required by section 4 of thischapter, domestic and foreign business trusts shall pay to thesecretary of state an application fee of twenty dollars ($20).(Formerly: Acts 1963, c.353, s.5.) As amended by P.L.34-1987,SEC.326; P.L.34-1997, SEC.14.
IC 23-5-1-6
Conditions precedent to beginning business; liability for violations
Sec. 6. No business trust shall transact any business in this state,except such as may be incident to its organization, until it has fullycomplied with sections 4 and 5 of this chapter, and in event of anyviolation of this section, all trustees of such business trust, exceptthose who filed their written dissent in the office of the secretary ofstate before such business was transacted, shall be jointly andseverally liable for all debts and obligations of the business trustarising from the business so transacted in this state prior tocompliance with sections 4 and 5 of this chapter.
(Formerly: Acts 1963, c.353, s.6.) As amended by P.L.34-1987,SEC.327.
IC 23-5-1-7
Amendments to trust instruments; filing; fees; recordation
Sec. 7. The trust instrument by which any business trust wascreated may be amended in the manner specified therein or in suchmanner as is valid under the common or statutory law applicable tosuch business trust; provided, that no such amendment adoptedsubsequent to the preliminary filings required by section 4 of thischapter shall be legally effective in this state until an executed copythereof has been filed in the office of the secretary of stateaccompanied by a fee of thirteen dollars ($13) and a file-markedcopy thereof recorded in the office of the county recorder of thecounty in which the principal office of said business trust in this stateis located.
(Formerly: Acts 1963, c.353, s.7.) As amended by P.L.34-1987,SEC.328.
IC 23-5-1-8
Powers; construction of instruments; terms and conditions;binding effect
Sec. 8. The power and authority of any business trust authorizedunder this chapter to transact business in this state shall be asspecified in the instrument by which it was created as amended,including but not limited to general grants of power to act andlimitations upon individual liability of stockholders, whichinstrument shall be construed and interpreted in accordance with thecommon and statutory law applicable to business trusts. Any suchtrust shall have the right to sue and be sued and if incidental to itspurposes the right in its own name, or in the name of the person orpersons or corporation or corporations who are from time to time itstrustee or trustees, to acquire, hold title to, mortgage, sell, convey,lease, operate, invest in, lend on the security of, and otherwise dealin or with real and personal property; provided, that no business trustshall engage in the business of operating a savings association or
credit union or have the power or authority to conduct a banking,railroad, insurance, surety, safe deposit, mortgage guaranty, orbuilding and loan business, or in the business of mining ormanufacturing, or in any business regulated under the utilityregulatory commission, or take any action which is in violation ofthis chapter. Subject to the limitations in this section on power andauthority, any person dealing with a business trust authorized underthis chapter to transact business in this state shall be bound by theterms and conditions of the instrument by which the trust was createdand by any amendments thereto which have been filed and recordedin compliance with section 7 of this chapter.
(Formerly: Acts 1963, c.353, s.8.) As amended by P.L.34-1987,SEC.329; P.L.23-1988, SEC.112; P.L.79-1998, SEC.23.
IC 23-5-1-9
Applicability of general corporate laws
Sec. 9. Business trusts and certificates of beneficial interests inbusiness trusts are subject to all applicable provisions of law, relatingto domestic and foreign corporations, respectively, with regard to theissuance and transfer of securities, merger into a domesticcorporation, and the filing of required statements, reports and serviceof process.
(Formerly: Acts 1963, c.353, s.9.) As amended by P.L.34-1987,SEC.330; P.L.80-1989, SEC.16; P.L.226-1989, SEC.4.
IC 23-5-1-9.1
Adoption of provisions of general corporate law
Sec. 9.1. (a) A business trust, by resolution of the trustees, mayadopt a provision of law related to domestic and foreign corporationsnot listed under section 9 of this chapter.
(b) If a business trust adopts a provision of law under subsection(a), the business trust shall:
(1) file notice of the adoption in the office of the secretary ofstate; and
(2) record notice of the adoption in the office of the countyrecorder of the county in which the principal office of thebusiness trust is located.
As added by P.L.226-1989, SEC.5.
IC 23-5-1-10
Repealed
(Repealed by P.L.34-1997, SEC.28.)
IC 23-5-1-10.1
Biennial report; fee
Sec. 10.1. (a) As used in this section, “trust” means a:
(1) domestic business trust; or
(2) foreign business trust;
as defined in section 2 of this chapter.
(b) Each trust authorized to transact business in Indiana shall
deliver a biennial report to the secretary of state for filing that setsforth the following:
(1) The name of the trust and the state or country under whoselaw the trust is created.
(2) The address of the trust's registered office and the name ofits registered agent at that office in Indiana.
(3) The address of the trust's principal office.
(c) When a biennial report is filed, it must be accompanied by thefollowing:
(1) A verified list of the names and addresses of the trustees ofthe business trust.
(2) Executed copies of all amendments to:
(A) the original trust instrument; and
(B) amendments to the trust instrument that:
(i) were adopted not later than December 31 of thepreceding year; and
(ii) have not been filed under section 7 of this chapter.
(3) A fee of fifteen dollars ($15) per year to be paid biennially.
(d) Information in the biennial report must be current as of thedate the biennial report is executed on behalf of the trust.
(e) The first biennial report must be delivered to the secretary ofstate in the second year following the calendar year in which adomestic business trust was created or a foreign business trust wasauthorized to transact business. The biennial report is due during thesame month as the month in which the trust was created orauthorized to transact business.
(f) Subsequent biennial reports must be delivered to the secretaryof state every second year following the year in which the lastbiennial report was filed. The secretary of state may accept reportsduring the two (2) months before the month that they are due.
(g) If a biennial report does not contain the information requiredby this section, the secretary of state shall promptly notify thereporting trust in writing and return the report to it for correction. Ifthe report is corrected to contain the information required by thissection and delivered to the secretary of state within thirty (30) daysafter the effective date of notice, it is considered to be timely filed.
As added by P.L.34-1997, SEC.15.
IC 23-5-1-11
Surrender of authority to transact business; closing out business;effect of withdrawal
Sec. 11. (a) Any business trust, domestic or foreign, which hasobtained authority under this chapter to transact business in Indianamay surrender its said authority at any time by:
(1) filing in the office of the secretary of state a file-markedcopy of a resolution duly adopted by its trustees declaring itsintention to withdraw, accompanied by a withdrawal fee ofthirteen dollars ($13);
(2) recording a copy thereof in the office of the county recorderof the county in which the principal office of said business trust
in this state is located; and
(3) filing all annual reports and paying all annual fees requiredby section 10 of this chapter and not theretofore filed and paid.
(b) During a period of five (5) years following the effective dateof such withdrawal, the business trust shall nevertheless be entitledto convey and dispose of its property and assets in this state, settleand close out its business in this state, and perform any other act oracts pertinent to the liquidation of its business, property, and assetsin this state, and to prosecute and defend all suits filed prior to theexpiration of said five (5) year period involving causes of actionprior to the effective date of such withdrawal or arising out of anyaction or transactions occurring during said five (5) year period inthe course of the liquidation of its business, property, or assets. Thewithdrawal of a business trust as provided in this section shall haveno effect upon any suit filed by or against it prior to the expiration ofsaid five (5) year period until such suit has been finally determinedor otherwise finally concluded and all judgments, orders, and decreesentered therein have been fully executed, even though such finaldetermination, conclusion, or execution occurs after the expirationof said five (5) year period.
(c) With respect to a foreign business trust, withdrawal under thissection shall not affect its written consent to be sued in the courts ofthis state, or the jurisdiction over public foreign business trusts of thecourts of this state, with respect to any cause of action which aroseprior to the effective date of its withdrawal.
(Formerly: Acts 1963, c.353, s.11.) As amended by P.L.34-1987,SEC.331.