Technology-enabled Fiduciary Financial Institutions Act; Senate Sub. for HB 2074

Senate Sub. for HB 2074 enacts the Technology-enabled Fiduciary Financial Institutions Act (Act), which will be part of and supplemental to Chapter 9 of the Kansas Statutes Annotated (the Kansas Banking Code). On July 1, 2021, the bill requires the State Bank Commissioner issue a conditional charter to The Beneficient Company and establish a fidfin fiduciary institution pilot program with an economic growth zone designated in Harvey County. The bill also establishes an income and privilege tax credit beginning in tax year 2021 for trust banks in an amount equal to such fiduciary financial institution’s qualified charitable distributions during such taxable year if the trust bank maintained such fiduciary financial institution’s principal office in an economic growth zone.

Technology-enabled Fiduciary Financial Institution Defined

Under the bill, a “technology-enabled fiduciary financial institution” [referred to generally as a TEFFI] or “fiduciary financial institution” means any limited liability company, limited partnership, or corporation that:

Certificate of Authority and Charter; State Banking Board; Office of the State Bank Commissioner; Department of Commerce

Certificate of Authority; Application Form and Approval of the Board

The bill states no fiduciary financial institution shall be organized under the laws of this state nor engage in fidfin transactions, custodial services, or trust business in this state until the application for such fiduciary financial institution’s organization and the application for certificate of authority have been submitted to and approved by the State Banking Board (Board). The form for making this application will be prescribed by the Board, and the bill requires any application to the Board to contain such information as the Board may require. The bill further provides, except as provided in provisions pertaining to a pilot program, the Board shall not approve any application until The Beneficient Company conditional charter has been converted to a full charter and the State Bank Commissioner (Bank Commissioner) has completed a regulatory examination.

The bill further provides no bank, trust company, or fiduciary financial institution can engage in fidfin transactions in Kansas unless an application has been submitted under the Act and has been approved by the Board.

Requirements on Fiduciary Financial Institution Applicants

The bill provides the Board cannot accept an application for a fiduciary financial institution unless the:

The Board is allowed to deny the application if it makes an unfavorable determination with regard to the:

The Board will not be permitted to make membership in any federal government agency a condition precedent to granting the authority to do business.

The Board is permitted to require fingerprinting of any officer, director, organizer, or any other person of the proposed fiduciary financial institution related to the application deemed necessary by the Board. The bill allows the fingerprints to be submitted to the Kansas Bureau of Investigation and the Federal Bureau of Investigation for the purposes of conducting a state and national criminal history record check. Should the Board require fingerprinting, the bill requires any associated costs to be paid by the applicant or parties to the application.

The Board or the Bank Commissioner is required to notify a fiduciary financial institution of the approval or disapproval of an application. Any final action of the Board approving or disapproving an application is subject to review in accordance with the Kansas Judicial Review Act.

Applicable Distribution, Compliance by Approved Applicants

The bill provides, in the event the application is approved, the fiduciary financial institution would be issued a charter upon compliance with the Act’s requirements and upon demonstrating to the satisfaction of the Bank Commissioner that an applicable distribution has been made. An “applicable distribution” means a distribution of cash, beneficial interests, or other assets having an aggregate value equal to the greater of:

The bill states if the amount provided in accordance with the applicable distribution amount exceeds the amount provided as a percentage of the aggregate financing balances, the fiduciary financial institution would be entitled to a credit against the amount of the distribution under Section 11 of the bill.

The bill provides the distribution schedule for the required applicable distribution to the Department as follows:

Applicable distribution amount	Percentage to Department (%)
$0 to $500,000	90.0%
$500,001 to $1,000,000	50.0%
Above $1,000,000	10.0%

The bill specifies these distribution amounts apply to fiduciary financial institutions chartered prior to January 1, 2023. For fiduciary financial institutions chartered after this date, the Department will be authorized to publish one or more schedules in the Kansas Register as it deems reasonably necessary to facilitate economic growth and development in one or more economic growth zones. The Department is required to timely submit any published schedule to the Bank Commissioner. The Bank Commissioner will be required to provide a copy of such schedule(s) to any applicant for a fiduciary financial institution charter prior to the issuance of such charter. A fiduciary financial institution will be subject to the schedule in existence on the date its charter is issued.

The bill requires the Department to remit all distributions made to the State Treasurer.
Upon receipt of such remittances, the State Treasurer is required to deposit the entire amount to the credit of the Technology-enabled Fiduciary Financial Institutions Development and Expansion Fund. The bill further provides the balance of the applicable distribution must be distributed to one or more qualified charities, as defined in the bill, as selected by the fiduciary financial institution. The bill further states nothing in this section shall preclude a distribution to one of more qualified charities in excess of the amounts provided in this section.

The bill also provides an economic growth zone or qualified charity shall have no
obligation to repay any distributions received under the Act or to make any contributions to a fiduciary financial institution.

Fees and Assessments, Bank Commissioner

Initial Fee and Expenses

The bill requires every fiduciary financial institution be assessed an initial fee of
$500,000 to be remitted concurrently with the issuance of such fiduciary financial institution’s charter. The bill requires the expense of every annual regular fiduciary financial institution examination, together with the expense of administering fiduciary financial institution laws, including salaries, travel expenses, third-party fees for consultants or other entities necessary to assist the Bank Commissioner, and supplies and equipment, to be paid by the fiduciary financial institutions of Kansas.

Annual Assessment

The bill requires the Bank Commissioner, prior to the beginning of each fiscal year, to
make an estimate of fiduciary financial institution expenses to be incurred by the Office of the State Bank Commissioner (OSBC) during such fiscal year in an amount not less than $1.0 million. The bill requires the Bank Commissioner to allocate and assess each fiduciary financial institution on the basis of such institution’s total fidfin transaction balances, consisting of the aggregate fidfin financing balances of the fiduciary financial institution reflected in the last December 31 report filed with the Bank Commissioner, filed pursuant to reporting provisions of KSA 9-1704. The bill provides a separate assessment allocation for those entities that have no fidfin transaction balances but are providing custodial services or trust services. The bill further provides a fiduciary financial institution that has no fidfin transaction balances and no alternative
asset custody accounts reflected in its last December 31 report may be granted inactive status.

An inactive fiduciary financial institution could be assessed an annual assessment in an
amount not to exceed $10,000. The bill requires the annual fee be first assessed in the year immediately following the year the fiduciary financial institution received a certificate of authority to engage in fidfin transactions, custodial services, and trust business and for each year thereafter.

The bill requires the statement of each assessment to be transmitted by the Bank
Commissioner on December 1 or the next business day to each fiduciary financial institution. The bill further permits the assessment to be collected as needed and in such installments as the Bank Commissioner deems appropriate. The Bank Commissioner is permitted to impose a penalty in the amount of $50 for each day past due, when the annual assessment is more than 15 days past due.

The Bank Commissioner will remit all moneys received from such fees and assessments to the State Treasurer. The State Treasurer will deposit the entire amount in the State Treasury and credit 75.0 percent of each remittance to the Bank Commissioner Fee Fund and 25.0 percent to the Technology-enabled Fiduciary Financial Institutions Development and Expansion Fund.

Application of Provisions, Chapter 9

The bill provides, to the extent a conflict does not exist between the Act and the Kansas Banking Code, the provisions of the Code (Chapter 9) shall apply to a fiduciary financial institution in the same manner as they apply to a trust company except that references in Chapter 9 to:

The bill also provides if any conflict exists between any provision of Chapter 9 (the Kansas Banking Code) and this act, the provisions of this act would control.

Capital

The bill defines “capital” to mean the total of the aggregate par value of a fiduciary financial institution’s outstanding membership units, its surplus, and its undivided profits. The bill provides the required capital for fiduciary financial institutions must be $250,000 when:

The bill provides the capital of a fiduciary financial institution shall be divided, with 60.0 percent of the amount as aggregate par value of outstanding membership units, 30.0 percent as surplus, and 10.0 percent as undivided profits.

Business of Fiduciary Financial Institutions, Management and Control

The bill requires the business of any fiduciary financial institution to be managed and controlled by such fiduciary financial institution’s board of directors. The bill provides this board must consist of not fewer than 5 nor more than 25 members who are elected by the members at any regular annual meeting. The bill specifies at least one director must be a resident of Kansas. The bill also provides provisions pertaining to holding meetings that cannot occur on the date specified in the operating agreement or bylaws and meeting notice requirements.

The bill requires annual meetings of fiduciary financial institutions to be held in Kansas. The bill permits any other meetings of such institution’s management or directors, including a meeting required by KSA 9-1116 (quarterly meetings), to be held in any location determined by the fiduciary financial institution’s officers or directors.

Changes in Directorship; Vacancies on the Board of Directors; Administration of Oath

The bill requires any new directorship to be approved and elected by members in the manner provided in the fiduciary financial institution’s organizational documents or, in the absence of such provisions, in the manner provided by the Kansas Revised Limited Liability Company Act, the Kansas Revised Uniform Limited Partnership Act, or the Kansas General Corporation Code. The bill permits the convening of a special meeting at any time for such purpose. The bill also provides that any vacancy in the board of directors could be filled by the board of directors in the manner provided in the fiduciary financial institution’s organizational documents or, in the absence of such provisions, pursuant to the Kansas laws previously referenced.

The bill requires, within 15 days after the annual meeting, the president or cashier submit to the Bank Commissioner a certified list of members and the number of units owned by each member. The Bank Commissioner is allowed to require the list be filed via electronic means.

The bill requires each director to take and subscribe an oath to administer the affairs of the fiduciary financial institution diligently and honestly and to not knowingly or willfully permit any of the laws relating to fiduciary financial institutions to be violated. The bill requires a copy of each oath to be retained and permits the Bank Commissioner to require oaths to be filed via electronic means.

The bill requires every fiduciary financial institution to notify the Bank Commissioner of any change in the chief executive officer, president, or directors, including in its report a statement of the past and current business and professional affiliations of the new chief executive officer, president, or directors.

Reporting to the Bank Commissioner; Evaluation of Safety and Soundness

The bill requires a fiduciary financial institution to make a report to the Bank Commissioner pursuant to the provisions of the Kansas Banking Code applicable to requiring reports of banks and trust companies, upon request of the Bank Commissioner (KSA 9-1704). In making such report, the bill requires a fiduciary financial institution to:

Safety and Soundness

The bill requires the Board and Bank Commissioner, when evaluating the safety and soundness of a fiduciary financial institution, to:

Profitability. The bill states profitability shall not be a consideration in evaluating the safety and soundness of a fiduciary financial institution if sufficient capital and equity exist in the business, including, without limitation, membership capital, surplus, undivided profits, and commitments by members to contribute additional capital to the fiduciary financial institution.

Advertising, Use of Name

The bill permits a fiduciary financial institution to use in its business name or advertising the words “fiduciary financial institution” or any similar term or phrase, but such institution will not be permitted to use “bank” or “trust company” or without reference to fidfin trusts any term that tends to imply it is a bank or trust company, unless the Bank Commissioner has approved the use in writing after finding that such use will not be misleading.

The bill also states:

Economic Growth Zone, Requirements on Office Space, Employment, and Business Performed in Kansas

The bill requires fiduciary financial institutions to maintain suitable office space in an economic growth zone; employ, engage, or contract with at least three employees; and perform fidfin transactions, custodial services, and trust business in Kansas. The bill also permits a fiduciary financial institution to engage in fidfin transactions, custodial services, and trust business in other states to the extent permitted by applicable law. The term “suitable office space” means at least 2,000 square feet of class A office space located in an economic growth zone selected by the fiduciary financial institution that the fiduciary financial institution utilizes as its principal office. The bill also places requirements on the principal office of the fiduciary financial institution, including that such office must be located in an economic growth zone selected by the trust bank and have a secure computer terminal or other electronic device that provides access to such records necessary to facilitate an efficient and effective examination.

Business Performed in Kansas

The bill deems fidfin transactions, custodial services, and trust business to have been performed in Kansas if such transaction or custodial service agreements are approved or signed in this state on behalf of the fiduciary financial institution and at least three of the following acts are performed by a technology platform wholly or partly operated in this state: annual account reviews, annual investment reviews, trust or custodial accounting, account correspondence, reviewing and signing trust account or custodial account tax returns, or distributing account statements.

Fiduciary Financial Institution Powers; Fidfin Transactions

The bill authorizes a fiduciary financial institution to exercise by its board of directors or duly authorized officers or agents, subject to law, the following powers:

Additional Powers, Duties, and Responsibilities—Extension of Credit and Financing; Required Distribution Amount

The bill permits, if authorized by the terms of an instrument (as defined in the bill), a fiduciary financial institution to:

Fidfin Transactions

The bill further specifies the financing of a fidfin trust is considered a fiduciary finance or fidfin transaction. The bill also states, if authorized or directed by the terms of an instrument, a fiduciary financial institution will not be deemed to have a conflict of interest, have violated a duty to a fidfin trust or the beneficiaries thereof, or have engaged in self-dealing by entering into a fidfin transaction.

The bill provides that the combination rules on limitations on loans and borrowing will not be applicable to a fiduciary financial institution’s fidfin transactions regardless of the identify of the fidfin trust beneficiary if:

The bill further states a fiduciary financial institution that engages in a fidfin transaction shall be a fiduciary and specifies when such fiduciary financial institution would be deemed to be exercising fiduciary powers.

The bill again specifies the required distribution, percentage of distribution to the Department, and requirement on publication of the schedule as it applies to the fidfin transactions of a fiduciary financial institution.

The bill also provides an economic growth zone or qualified charity shall have no obligation to repay any distributions received under the Act or to make any contributions to a fiduciary financial institution.

The bill also states the form, treatment, and character of fidfin transactions under the laws of this state shall be respected for all purposes of this act, notwithstanding the treatment or characterization of such transactions under GAAP for tax purposes.

Employment of Professionals; Professional Services

The bill allows a fiduciary financial institution to employ and engage various professionals to advise and assist the fiduciary financial institution in its business. A fiduciary financial institution is permitted, among those activities outlined in the bill, to:

The bill also specifies a party engaged by a fiduciary financial institution will not be deemed to have engaged in fidfin transactions by reason of providing services to a fiduciary financial institution or licensing products or forms, platforms, systems, or processes of the fiduciary financial institution.

Use of Technology-enabled Platform

The bill specifies if a fiduciary financial institution offers its platform to provide fidfin services to residents of other states, neither the marketing, use, and deployment of such platform by parties in other states nor the origination of fidfin services through such platform will constitute an out-of-state trust facility under State Banking Code provisions applicable to trust companies (KSA 9-2111), if the fiduciary financial institution complies with provisions of the bill (office space and employment or contracting).

The fiduciary financial institution is required to provide notice to the Bank Commissioner if it engages a party under the bill’s provisions for employment of a professional for advice and assistance.

Custodian of an Asset Custody Account

The bill permits a fiduciary financial institution to serve as a custodian, which includes serving as a qualified custodian (as defined by the U.S. Securities and Exchange Commission) of an asset custody account. In providing such services, a fiduciary financial institution is required to:

The bill provides a fiduciary financial institution performing custodial services will be deemed to be serving as a fiduciary and exercising fiduciary powers.

Instrument of the Trust Advisor

The bill provides that any instrument providing for a trust advisor may also provide such advisor with some, none, or all of the rights, powers, privileges, benefits, immunities, or authorities available to a trustee under Kansas law or under such instrument. Unless the
instrument provides otherwise, a trust advisor would have no greater liability to any person than would a trustee holding or benefiting from the rights, powers, privileges, benefits, immunities, or authority provided or allowed by the instrument to such trust advisor.

Excluded Fiduciaries; Exemption from Liability

The bill provides for the exemption from liability of an excluded fiduciary, either individually or as a fiduciary, from:

The bill provides for instances when the excluded fiduciary would be relieved from obligations to review or evaluate a direction from a trust advisor and the duty to communicate with the trust advisor. The bill also provides, in any action against an excluded fiduciary, the burden of proof will be on the person seeking to hold the excluded fiduciary liable under the clear and convincing evidence standard.

Trust Advisors; Presumption of Acting as Fiduciary

The bill states a trust advisor is presumed to be a fiduciary when exercising such trust advisor’s authority under the Act. The bill specifies that by accepting appointment to serve as a trust advisor to a fidfin trust or an alternative asset custody account, a trust advisor submits to jurisdiction of the courts of Kansas even if agreements provide otherwise.

The bill also provides an instrument may appoint an individual, corporation, or limited liability company as the trust advisor of a fidfin trust or an alternative asset custody account.

Exemption from Article 8 of the State Banking Code

The bill specifies, for an entity appointed as a trust advisor, when certain provisions of the State Banking Code (Article 8, organization) would not apply. Those instances include if such entity:

The bill requires the governing documents of any such entity limit that entity’s authorized activities to those of a trust advisor.

Indemnification

The bill provides that an instrument may relieve and indemnify a trust advisor and fiduciary financial institution that serves as a trustee of a fidfin or alternative asset custody account that serves as a trustee from liability for breach of fiduciary liability duty if any such provision is unenforceable to the extent that it relieves the trust advisor or fiduciary financial institution from liability for a breach of fiduciary duty committed in bad faith, intentionally, or with reckless indifference to the interest of a beneficiary.

Compensation of the Trustee

The bill provides requirements governing the compensation of a trustee, specifying each trustee is entitled to be compensated as provided in the terms of a fidfin trust, except that such compensation may be increased or decreased upon approval by the trustee and by unanimous consent of the beneficiaries. The bill also specifies when the court will be permitted to allow additional compensation of a trustee.

Privacy Protections

The bill establishes privacy protections for those establishing a fidfin trust or alternative asset custody account, in court proceedings, upon petition of the acting trustee, custodian, trustor, or any beneficiary. Upon the filing, documents would be sealed and not be part of the public record, except that the petition would be available.

Definition of Form; Review of Forms for Informational Purposes

The bill permits the Bank Commissioner to, upon a written request from a fiduciary financial institution prior to a form submission, offer to review a form and reply with informational comments only. The bill further states such comments shall not, in any manner, constitute approval or endorsement of such form, and the fiduciary financial institution shall not represent that such form has been approved by the OSBC.

The bill defines “form” to include:

Rules and Regulations; Professional Services and Technical Assistance

The bill requires the Bank Commissioner to adopt rules and regulations on or before January 1, 2022, as necessary to administer the Act.

The bill permits the OSBC to enter into contracts for technical assistance and professional services as necessary to administer the provisions of this act and to meet the specified deadline for adoption of the rules and regulations.

Interest Rate or Charge; Written Agreement

The bill provides, notwithstanding the provisions of Chapter 16 of the Kansas Statutes Annotated (contracts and promises) or other law, there is no maximum interest rate or charge or usury rate restriction between or among a fiduciary financial institution and a fidfin trust if the rate or charge is established by written agreement.

A “written agreement” means a document in writing, whether in physical or electronic form, in which the parties have demonstrated their agreement to the terms and conditions of an extension of credit, including the rate of interest.

Technology-enabled Fiduciary Financial Institutions Development and Expansion Fund

The bill establishes the Technology-enabled Fiduciary Financial Institutions Development and Expansion Fund (Fund) in the State Treasury to be administered by the Secretary of Commerce. The bill requires expenditures from the Fund to be for the purposes of distributing to economic growth zones for the purposes of economic development projects or opportunities and promoting and facilitating the development and growth of trust banks, fidfin activities, and custodial services in Kansas and to locate trust banks’ office space in an economic growth zone.

The bill also requires transfers from the State General Fund to the Fund of interest earnings of Fund moneys.

Issuance of Charter to The Beneficient Company; FidFin Fiduciary Financial Institution Pilot Program

On July 1, 2021, the bill will require the Bank Commissioner to grant a conditional fiduciary financial institution charter to The Beneficient Company (Beneficient) upon the filing of an application and satisfying requirements as detailed in the bill.

Harvey County Community; Pilot Program

The bill requires Beneficient to designate a community within Harvey County as the first economic growth zone.

The Bank Commissioner is required to establish a FidFin Fiduciary Financial Institution Pilot Program that will include Beneficient as a participant, assess an initial fee of $1.0 million in lieu of the initial charter fee established in the bill, and impose a requirement for Beneficient to distribute or facilitate the distribution of cash, beneficial interests, or other assets having an aggregate value of $9.0 million. This distribution will be distributed in accordance with requirements in the bill and shall be construed as the applicable distribution amount, as specified in the bill.

Upon the issuance of the conditional charter, Beneficient will be subject to all requirements imposed on trust banks under the Act, but will not be permitted to conduct fidfin transactions, custodial services, or trust business in Kansas until the earlier of December 31, 2021, or the date the Bank Commissioner adopts rules and regulations.

Extension of Time Frame before Transactions and other Business; Reports to Legislature

Reporting. The bill permits the Bank Commissioner to extend the period of time in which Beneficient may not commence fidfin transactions, custodial services, or trust business in Kansas for a period not to exceed six months if the Bank Commissioner submits a report to the chairperson of the Senate Committee on Financial Institutions and Insurance (Senate Committee) and the House Committee on Financial Institutions and Rural Development (House Committee) identifying the specific reasons for which such extension was necessary. The bill requires such report to be submitted on or before January 10, 2022.

The bill also requires, on or before January 10, 2022, the OSBC to provide a report to the House Committee and the Senate Committee with an update on the progress of the pilot program. This bill requires the report to include recommendations from the OSBC for any legislation necessary to implement the provisions of this act.

Required distributions. The bill further allows Beneficient to satisfy the application distribution requirements of the bill by placing assets in escrow with one or more qualified charities provided that such funds shall be released when Beneficient is permitted to commence fidfin transactions, custodial services, or trust business.

Interest in a Fidfin Trust

The bill provides that no interest held in a fidfin trust shall be void or invalid by reason of any common law rule including, but not limited to, the rule against perpetuities or rule limiting the duration of trusts.

Classification of Business Trust, Taxation Purposes

The bill provides that, for state taxation purposes, a fiduciary financial institution that serves as a trustee under the Act shall be classified as a corporation, association, a partnership, a trust, or otherwise, as determined by the federal Internal Revenue Code.

Income and Privilege Tax Credit; “Qualified Charitable Distributions”

The bill establishes an income and privilege tax credit beginning with tax year 2021 for fiduciary financial institutions in an amount equal to such fiduciary financial institution’s qualified charitable distributions during such taxable year if the fiduciary financial institution maintained such fiduciary financial institution’s principal office in an economic growth zone. The bill allows a tax credit to be carried forward. The credit could be carried forward for up to five taxable years following the years in which the credit is first allowed. These provisions are part of and supplemental to the Kansas Income Tax Act.

Pass-through Entities

The bill includes provisions pertaining to fiduciary financial institutions that are considered pass-through entities for Kansas tax purposes and this credit. The bill specifies tax credits allowed and earned under this section shall not be sold, assigned, conveyed, or otherwise transferred.

Tax Liability for Unmet Qualified Charitable Deductions

The bill specifies that a fiduciary financial institution must pay the greater of the qualified charitable distributions made during such taxable year or the tax liability of a fiduciary financial institution imposed pursuant to the Kansas Income Tax Act or the privilege tax imposed pursuant to Article 11, Chapter 79 of the Kansas Statutes Annotated (the financial institutions privilege tax).

Qualified Charitable Distributions; Qualified Charities

The bill creates definitions for “qualified charitable distributions” and “qualified charities.” The bill specifies “qualified charities” are charities that have:

The bill also specifies when such requirements will not apply.

Joint Committee on Fiduciary Financial Institutions Oversight

The bill establishes a nine-member Joint Committee on Fiduciary Financial Institutions Oversight (Joint Committee) that is composed of four senators and five representatives.

Membership and Meeting Requirements

The four members of the Senate are the chairperson of the Senate Committee or a member of the committee designated by the chairperson, two members appointed by the President, and one member appointed by the Minority Leader. The five members of the House of Representatives are the chairperson of the House Committee or a member of the committee designated by the chairperson, two members appointed by the Speaker, and two members appointed by the Minority Leader.

The bill specifies the terms of all Joint Committee members will expire on the first day of the regular session in odd-numbered years and specifies when the chairperson is appointed by either the Speaker or President. The Joint Committee is permitted to meet at any time and any place on call of the chairperson. The bill provides a quorum of the Joint Committee would be a majority of the members.

The bill also provides for member compensation, travel expenses, and subsistence expenses or allowances and provision for professional services as may be provided by the Legislative Coordinating Council.

Legislation and Role of Joint Committee

The Joint Committee is permitted to introduce legislation as deemed necessary in performing its functions. The Joint Committee is required to:

The bill also requires the OSBC to appear before the Joint Committee annually and present a report on the fiduciary financial institution industry.