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 Trust
Act 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 association
which is created by a trust instrument, pursuant to common law or
enabling legislation, under which property is held, managed,
administered, controlled, invested, reinvested, or operated, or
business or professional activities for profit are carried on, by a
trustee or trustees for the benefit and profit of such person or persons
as are or may become the holders of transferable certificates, issued
pursuant to the provisions of the trust instrument, which have either
restricted or unrestricted transferability, evidencing beneficial
interests in the trust estate, including but not limited to a trust of the
type known at common law as a business trust, or Massachusetts
trust, or a trust qualifying as a real estate investment trust under
Section 856 of the Internal Revenue Code or under any similar
statute. Such business trust may provide that the holders of such
certificates are entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit. A
business trust shall not be construed to include, and this chapter shall
not apply to, the form of trust known as a land trust, under which a
trustee or trustees holds the legal or equitable title to real estate,
which does not issue transferable certificates of beneficial interest
and which has less than one hundred beneficiaries. Nothing in the
specific exclusion shall be construed to enlarge the operation or
application of this chapter.
(b) A "domestic business trust" is one created under the laws of
this state.
(c) A "foreign business trust" is one created under the laws of a
territory or state other than Indiana.
(d) The "corpus" of any business trust shall consist of its net
worth and shall be equivalent to the capital, paid-in surplus, and
accumulated 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 form
of association for the conduct of business in this state, provided the
provisions of this chapter are complied with, except that nothing
contained in this chapter shall be construed to limit, prohibit, or
invalidate the existence, acts, or obligations to the state or to any
person, of any business trust created or doing business in this state
prior 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 following
documents and information in the office of the secretary of state, on
such forms, if any, as such secretary may prescribe:
(1) An executed copy of the trust instrument by which the trust
was created and of all amendments thereto or a true and correct
copy thereof certified to be such by a trustee thereof before an
official authorized to administer oaths or by a public official of
another state, territory, or country in whose office an executed
copy 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 or
public accountant or firm of accountants as of the date no
earlier than sixty (60) days prior to such date of filing, fairly
and truly reflecting its assets and liabilities and specifically
setting out its corpus and showing a net worth of not less than
one thousand dollars ($1,000). A foreign business trust shall
also file a statement showing the same information required of
a foreign corporation under IC 23-1.
(4) The location of its registered office in this state and the
name of its resident agent in charge of such registered office.
(b) A foreign business trust shall comply with and be subject to
all the provisions of IC 23-1 as though it were a foreign corporation.
Before commencement of business in Indiana every trust, domestic
or foreign, shall record in the office of the county recorder of the
county in which the principal office of said business trust in this state
is located a copy of the trust instrument duly bearing the file mark of
the 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 the
secretary of state of the instruments required by section 4 of this
chapter, domestic and foreign business trusts shall pay to the
secretary 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 fully
complied with sections 4 and 5 of this chapter, and in event of any
violation of this section, all trustees of such business trust, except
those who filed their written dissent in the office of the secretary of
state before such business was transacted, shall be jointly and
severally liable for all debts and obligations of the business trust
arising from the business so transacted in this state prior to
compliance 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 was
created may be amended in the manner specified therein or in such
manner as is valid under the common or statutory law applicable to
such business trust; provided, that no such amendment adopted
subsequent to the preliminary filings required by section 4 of this
chapter shall be legally effective in this state until an executed copy
thereof has been filed in the office of the secretary of state
accompanied by a fee of thirteen dollars ($13) and a file-marked
copy thereof recorded in the office of the county recorder of the
county in which the principal office of said business trust in this state
is 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 authorized
under this chapter to transact business in this state shall be as
specified in the instrument by which it was created as amended,
including but not limited to general grants of power to act and
limitations upon individual liability of stockholders, which
instrument shall be construed and interpreted in accordance with the
common and statutory law applicable to business trusts. Any such
trust shall have the right to sue and be sued and if incidental to its
purposes the right in its own name, or in the name of the person or
persons or corporation or corporations who are from time to time its
trustee or trustees, to acquire, hold title to, mortgage, sell, convey,
lease, operate, invest in, lend on the security of, and otherwise deal
in or with real and personal property; provided, that no business trust
shall 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, or
building and loan business, or in the business of mining or
manufacturing, or in any business regulated under the utility
regulatory commission, or take any action which is in violation of
this chapter. Subject to the limitations in this section on power and
authority, any person dealing with a business trust authorized under
this chapter to transact business in this state shall be bound by the
terms and conditions of the instrument by which the trust was created
and by any amendments thereto which have been filed and recorded
in 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 in
business trusts are subject to all applicable provisions of law, relating
to domestic and foreign corporations, respectively, with regard to the
issuance and transfer of securities, merger into a domestic
corporation, and the filing of required statements, reports and service
of 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, may
adopt a provision of law related to domestic and foreign corporations
not 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 of
state; and
(2) record notice of the adoption in the office of the county
recorder of the county in which the principal office of the
business 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 sets
forth the following:
(1) The name of the trust and the state or country under whose
law the trust is created.
(2) The address of the trust's registered office and the name of
its 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 the
following:
(1) A verified list of the names and addresses of the trustees of
the 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 the
preceding 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 the
date the biennial report is executed on behalf of the trust.
(e) The first biennial report must be delivered to the secretary of
state in the second year following the calendar year in which a
domestic business trust was created or a foreign business trust was
authorized to transact business. The biennial report is due during the
same month as the month in which the trust was created or
authorized to transact business.
(f) Subsequent biennial reports must be delivered to the secretary
of state every second year following the year in which the last
biennial report was filed. The secretary of state may accept reports
during the two (2) months before the month that they are due.
(g) If a biennial report does not contain the information required
by this section, the secretary of state shall promptly notify the
reporting trust in writing and return the report to it for correction. If
the report is corrected to contain the information required by this
section and delivered to the secretary of state within thirty (30) days
after 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 has
obtained authority under this chapter to transact business in Indiana
may surrender its said authority at any time by:
(1) filing in the office of the secretary of state a file-marked
copy of a resolution duly adopted by its trustees declaring its
intention to withdraw, accompanied by a withdrawal fee of
thirteen dollars ($13);
(2) recording a copy thereof in the office of the county recorder
of 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 required
by section 10 of this chapter and not theretofore filed and paid.
(b) During a period of five (5) years following the effective date
of such withdrawal, the business trust shall nevertheless be entitled
to convey and dispose of its property and assets in this state, settle
and close out its business in this state, and perform any other act or
acts pertinent to the liquidation of its business, property, and assets
in this state, and to prosecute and defend all suits filed prior to the
expiration of said five (5) year period involving causes of action
prior to the effective date of such withdrawal or arising out of any
action or transactions occurring during said five (5) year period in
the course of the liquidation of its business, property, or assets. The
withdrawal of a business trust as provided in this section shall have
no effect upon any suit filed by or against it prior to the expiration of
said five (5) year period until such suit has been finally determined
or otherwise finally concluded and all judgments, orders, and decrees
entered therein have been fully executed, even though such final
determination, conclusion, or execution occurs after the expiration
of said five (5) year period.
(c) With respect to a foreign business trust, withdrawal under this
section shall not affect its written consent to be sued in the courts of
this state, or the jurisdiction over public foreign business trusts of the
courts of this state, with respect to any cause of action which arose
prior to the effective date of its withdrawal.
(Formerly: Acts 1963, c.353, s.11.) As amended by P.L.34-1987,
SEC.331.