Business Trusts - PENALTY FOR PURPORTING TO DO BUSINESS WITHOUT FILING CERTIFICATE OF TRUST OR WITHOUT REGISTRATION - Activities subject to fine.

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[Rev. 8/22/2014 3:54:59 PM]

[NAC-88A Revised Date: 9-14]

CHAPTER 88A - BUSINESS TRUSTS

GENERAL PROVISIONS

88A.005            Electronic filing of records.

88A.010            Considerations in determining whether proposed name of business trust is distinguishable from name of existing business entity.

ANNUAL LIST

88A.300            Definitions.

88A.310            “Alternative due date” defined.

88A.320            “Due date” defined.

88A.330            Selection of alternative due date for filing annual list: Form; contents.

88A.340            Selection of alternative due date by business trust or foreign business trust in terminated status.

88A.350            Form for selection of alternative due date to be submitted with annual list; deadline for submission.

88A.360            Acceptance and filing of form for selection of alternative due date and annual list.

88A.370            Notice to registered agent of intent to select alternative due date.

88A.380            Limitation on selection of alternative due date; exception.

PENALTY FOR PURPORTING TO DO BUSINESS WITHOUT FILING CERTIFICATE OF TRUST OR WITHOUT REGISTRATION

88A.400            Activities subject to fine.

88A.405            Filing of complaints.

88A.410            Duties of Secretary of State upon receipt of complaint.

88A.415            Determination regarding sufficiency of complaint by Secretary of State: Notice of deficiencies; demand for response; referral for legal proceedings.

 

 

 

GENERAL PROVISIONS

      NAC 88A.005  Electronic filing of records. (NRS 88A.890)

     1.  The Secretary of State may develop or approve an electronic process for the electronic filing of records authorized or required to be filed with the Secretary of State pursuant to chapter 88A of NRS.

     2.  If the Secretary of State has developed or approved an electronic process and the electronic process is in place and available for use in the Office of the Secretary of State:

     (a) A person may use the electronic process to file with the Secretary of State any record authorized or required to be filed with the Secretary of State pursuant to chapter 88A of NRS; and

     (b) The Secretary of State will accept a record filed with the Secretary of State through the use of the electronic process if the record contains all the information required for filing and is accompanied by the appropriate fee and any applicable penalty.

     3.  The Secretary of State may reject a record filed with the Secretary of State through the use of an electronic process developed or approved by the Secretary of State if:

     (a) The statutory requirements for filing the record have not been satisfied;

     (b) The appropriate fee has not been submitted;

     (c) The information contained in the record has been corrupted in any manner; or

     (d) The record contains a virus or may otherwise compromise the security of the electronic process.

     4.  Failure by the Secretary of State to receive a record filed through the use of an electronic process does not relieve the person who attempted to file the record from any requirement to file the record, pay the appropriate fee or incur an applicable penalty.

     5.  As used in this section:

     (a) “Electronic filing” means the submission of records to the Secretary of State by an electronic process and the processing of such records by the Secretary of State by an electronic process.

     (b) “Electronic process” means any electronic process for the electronic filing of records authorized or required to be filed with the Secretary of State pursuant to chapter 88A of NRS.

     (Added to NAC by Sec’y of State by R068-11, eff. 12-30-2011)

      NAC 88A.010  Considerations in determining whether proposed name of business trust is distinguishable from name of existing business entity. (NRS 88A.230)  To determine whether a proposed name of a business trust is distinguishable from the name of an existing business entity, the Secretary of State will consider, without limitation, the rules set forth in NAC 78.020 to 78.100, inclusive.

     (Added to NAC by Sec’y of State by R098-00, eff. 9-25-2000)

ANNUAL LIST

      NAC 88A.300  Definitions. (NRS 88A.600, 88A.732)  As used in NAC 88A.300 to 88A.380, inclusive, unless the context otherwise requires, the words and terms defined in NAC 88A.310 and 88A.320 have the meanings ascribed to them in those sections.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.310  “Alternative due date” defined. (NRS 88A.600, 88A.732)  “Alternative due date” means the date selected by a business trust or foreign business trust, as applicable, pursuant to NAC 88A.330 on which the applicable list required by subsection 1 of NRS 88A.600 or subsection 1 of NRS 88A.732 must be filed with the Secretary of State each year.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.320  “Due date” defined. (NRS 88A.600, 88A.732)  “Due date” means the date on which the applicable list required by subsection 1 of NRS 88A.600 or subsection 1 of NRS 88A.732 must be filed with the Secretary of State each year as set forth in NRS 88A.600 or 88A.732.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.330  Selection of alternative due date for filing annual list: Form; contents. (NRS 88A.600, 88A.732)

     1.  A business trust or foreign business trust, as applicable, may select the last day of a month other than the month in which the business trust’s or foreign business trust’s due date occurs as the alternative due date for filing the applicable list required by subsection 1 of NRS 88A.600 or subsection 1 of NRS 88A.732 by submitting to the Secretary of State a form prescribed by the Secretary of State which must include, at a minimum:

     (a) The name of the business trust or foreign business trust;

     (b) The business identification number assigned to the business trust or foreign business trust by the Secretary of State;

     (c) A statement that the business trust or foreign business trust desires to select an alternative due date;

     (d) The month in which the alternative due date will occur;

     (e) A declaration under penalty of perjury that:

          (1) The information provided in the form is true and correct to the best of the business trust’s or foreign business trust’s knowledge;

          (2) The selection of an alternative due date is not being made to avoid any fee or penalty; and

          (3) The business trust or foreign business trust acknowledges that pursuant to NRS 239.330, it is a category C felony to knowingly offer any false or forged instrument for filing with the Office of the Secretary of State; and

     (f) The printed name and signature of the person submitting the form and the date on which the form was signed.

     2.  The alternative due date selected pursuant to subsection 1 must occur before the business trust’s or foreign business trust’s next due date, as applicable. The selection of an alternative due date cannot have the effect of extending a business trust’s or foreign business trust’s due date.

     3.  The selection of an alternative due date pursuant to this section will not result in the proration of any fees or penalties.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.340  Selection of alternative due date by business trust or foreign business trust in terminated status. (NRS 88A.600, 88A.732)

     1.  If a business trust or foreign business trust is in terminated status, the business trust or foreign business trust must have its right to transact business in this State restored before it may select an alternative due date pursuant to NAC 88A.330.

     2.  As used in this section, “terminated status” means any status in the records of the Office of the Secretary of State which indicates that a business trust or foreign business trust no longer has the right to transact business in this State, including, without limitation, the status of “revoked,” “permanently revoked,” “dissolved,” “cancelled,” “terminated,” “administrative hold” or “withdrawn.”

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.350  Form for selection of alternative due date to be submitted with annual list; deadline for submission. (NRS 88A.600, 88A.732)  If a business trust or foreign business trust is selecting an alternative due date pursuant to NAC 88A.330, the business trust or foreign business trust must submit the form for the selection of an alternative due date along with the applicable list required pursuant to subsection 1 of NRS 88A.600 or subsection 1 of NRS 88A.732 on or before the last day of the month immediately preceding the month in which the business trust’s or foreign business trust’s due date, as applicable, occurs.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.360  Acceptance and filing of form for selection of alternative due date and annual list. (NRS 88A.600, 88A.732)  Except as otherwise provided in NAC 88A.380, the Secretary of State will accept and file a form for the selection of an alternative due date and the applicable list required pursuant to subsection 1 of NRS 88A.600 or subsection 1 of NRS 88A.732 that a business trust or foreign business trust submits pursuant to NAC 88A.350 if:

     1.  The form contains all the information required pursuant to NAC 88A.330; and

     2.  The list satisfies all filing requirements set forth in NRS 88A.600 or 88A.732, as applicable.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.370  Notice to registered agent of intent to select alternative due date. (NRS 88A.600, 88A.732)  A business trust or foreign business trust shall notify its registered agent of its intent to select an alternative due date not later than 60 days before the alternative due date.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

      NAC 88A.380  Limitation on selection of alternative due date; exception. (NRS 88A.600, 88A.732)

     1.  Except as otherwise provided in subsection 2, the Secretary of State may limit the number of times a business trust or foreign business trust can select an alternative due date.

     2.  The Secretary of State may allow for additional selections of an alternative due date beyond any limit imposed by subsection 1 in extenuating circumstances.

     (Added to NAC by Sec’y of State by R078-13, eff. 12-23-2013)

PENALTY FOR PURPORTING TO DO BUSINESS WITHOUT FILING CERTIFICATE OF TRUST OR WITHOUT REGISTRATION

      NAC 88A.400  Activities subject to fine. (NRS 88A.215, 88A.750)

     1.  The Secretary of State may refer the matter to the district attorney of the county in which a person’s principal place of business is located or the Attorney General, or both, for a determination of whether to institute proceedings to recover the fine set forth in NRS 88A.215 if the person:

     (a) Is purporting to be a business trust but has willfully failed to file with the Secretary of State a certificate of trust;

     (b) Is doing business in this State as a business trust but has willfully failed to file with the Secretary of State a certificate of trust; or

     (c) Is doing business in this State as a business trust while the business trust is in terminated status.

     2.  The Secretary of State may refer the matter to the district attorney of the county in which a foreign business trust has its principal place of business or the Attorney General, or both, for a determination of whether to institute proceedings to recover the fine set forth in NRS 88A.750 if the foreign business trust:

     (a) Is transacting business in this State but has willfully failed to register with the Secretary of State pursuant to NRS 88A.710; or

     (b) Is transacting business in this State while the foreign business trust is in terminated status.

     3.  As used in this section, “terminated status” means any status in the records of the Office of the Secretary of State which indicates that a business trust or foreign business trust no longer has the right to transact business in this State, including, without limitation, the status of “revoked,” “permanently revoked,” “dissolved,” “cancelled,” “terminated” or “withdrawn.”

     (Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012; A by R080-13, 12-23-2013)

      NAC 88A.405  Filing of complaints. (NRS 88A.215, 88A.750)

     1.  A person may report to the Secretary of State that a person or foreign business trust may be subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable, by emailing a complaint to blcompliance@sos.nv.gov or by mailing a complaint to:

 

Secretary of State

Commercial Recordings Division

Attn: Business Compliance

202 North Carson Street

Carson City, Nevada 89701

 

     2.  A complaint filed with the Secretary of State pursuant to subsection 1 must be on a form prescribed by the Secretary of State and must include, without limitation:

     (a) The name, street address, telephone number and, if applicable, the electronic mail address and any other contact information of the complainant;

     (b) The name, street address, telephone number and, if applicable, the electronic mail address and any other contact information of any person authorized to file the complaint on behalf of the complainant;

     (c) The name, street address, telephone number and, if applicable, the electronic mail address and any other contact information of the person or foreign business trust alleged to be subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable;

     (d) Information identifying all persons involved in the alleged conduct subjecting the person or foreign business trust to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable, including, without limitation, the names, street addresses, business locations, telephone numbers, electronic mail addresses and Internet websites of the persons involved in the alleged conduct;

     (e) Information identifying the nature of the business engaged in by the person or foreign business trust alleged to be subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable;

     (f) Information identifying any other regulatory entity or agency or any court, arbitrator or other tribunal with which the complainant has filed a complaint or report regarding the same conduct, including, without limitation, the name and address of the regulatory entity, agency, court, arbitrator or tribunal, the date upon which any complaint or report was filed and the case number assigned to the complaint or report, if any;

     (g) Any additional information which the complainant believes may assist in the investigation of the allegations made in the complaint;

     (h) Copies of any documents which the complainant believes may assist in the investigation of the allegations made in the complaint;

     (i) A statement indicating whether the complainant is willing to testify regarding the complaint in a court of law or administrative proceeding; and

     (j) A statement that to the best of the complainant’s knowledge the information contained in the complaint is true and correct.

     (Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012)

      NAC 88A.410  Duties of Secretary of State upon receipt of complaint. (NRS 88A.215, 88A.750)

     1.  Upon receiving a complaint filed pursuant to NAC 88A.405, the Secretary of State will:

     (a) Review the complaint and any information submitted with the complaint;

     (b) Determine whether the allegations in the complaint may be addressed through the administrative processes of the Office of the Secretary of State; and

     (c) Determine whether to refer the complaint to another regulatory or enforcement agency of this State, a political subdivision of this State, another state or the Federal Government.

     2.  The Secretary of State may refer a complaint filed pursuant to NAC 88A.405 and any information obtained by the Secretary of State through an investigation of the complaint to another regulatory or enforcement agency of this State, a political subdivision of this State, another state or the Federal Government.

     3.  The Secretary of State may request that the complainant or the person or foreign business trust alleged to be subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable, provide any information deemed necessary by the Secretary of State to assist in the investigation of the allegations made in the complaint.

     (Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012)

      NAC 88A.415  Determination regarding sufficiency of complaint by Secretary of State: Notice of deficiencies; demand for response; referral for legal proceedings. (NRS 88A.215, 88A.750)

     1.  If the Secretary of State determines that the information provided with a complaint filed pursuant to NAC 88A.405 is not sufficient to warrant further investigation or processing of the complaint, the Secretary of State will send to the complainant written notification of the deficiencies in the complaint.

     2.  If the Secretary of State determines that the information provided with a complaint filed pursuant to NAC 88A.405 or obtained during the course of an investigation of another matter is sufficient to warrant further investigation or processing, the Secretary of State may send a written demand for a response to the complaint or investigation to the person or foreign business trust alleged to be subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable.

     3.  A response demanded pursuant to subsection 2 must be:

     (a) Completed and returned to the Office of the Secretary of State within the time specified in the written demand; and

     (b) Signed under oath by the respondent or, if the respondent is an entity, by a person in a position of responsibility with the respondent.

     4.  If, based on the information submitted with a complaint, any information obtained during an investigation of the complaint and any information included in a response demanded pursuant to subsection 2, the Secretary of State determines that a person or foreign business trust is subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable, the Secretary of State may demand that the person or foreign business trust file any document required to bring the person or foreign business trust, as applicable, into compliance with chapter 88A of NRS and pay any fee, penalty or fine required by the laws of this State.

     5.  If, in response to the demand of the Secretary of State pursuant to subsection 4, the person or foreign business trust does not file a document required to bring the person or foreign business trust, as applicable, into compliance with chapter 88A of NRS or pay any fee, penalty or fine required by the laws of this State, the Secretary of State may refer the matter to the district attorney of the county in which the person or foreign business trust has its principal place of business or the Attorney General, or both, and request that the district attorney or Attorney General institute legal proceedings to require the person or foreign business trust to file any document required to bring the person or foreign business trust, as applicable, into compliance with chapter 88A of NRS and to pay any fee, penalty or fine required by the laws of this State.

     6.  The Secretary of State may communicate any findings made or actions taken in response to a complaint or the investigation of a complaint to:

     (a) The complainant at the address provided on the complaint form; and

     (b) The person or foreign business trust alleged to be subject to the fine set forth in NRS 88A.215 or 88A.750, whichever is applicable, at the last known address of the person or through the registered agent of record for the person or foreign business trust.

     (Added to NAC by Sec’y of State by R070-11, eff. 5-30-2012)