2006 New York Code - Supervision Of Trustees For Charitable Purposes

 
  § 8-1.4 Supervision of trustees for charitable purposes
    (a)  For  the  purposes  of  this  section,  "trustee"  means  (1) any
  individual, group of  individuals,  executor,  trustee,  corporation  or
  other  legal  entity  holding  and administering property for charitable
  purposes, whether pursuant to  any  will,  trust,  other  instrument  or
  agreement,  court  appointment, or otherwise pursuant to law, over which
  the attorney general has enforcement  or  supervisory  powers,  (2)  any
  non-profit  corporation  organized  under  the  laws  of  this state for
  charitable purposes and (3) any non-profit foreign corporation organized
  for charitable purposes, doing business  or  holding  property  in  this
  state. Neither a foreign corporation nor a trustee acting under the will
  of,  or  an  agreement  executed  by, a non-resident of this state shall
  become subject to the provisions of this section  merely  by  reason  of
  maintaining  a  bank,  custody,  investment  or  similar account in this
  state.
    (b) The registration and reporting provisions of this section  do  not
  apply  to  (1)  the United States, any state, territory or possession of
  the United States, the District of Columbia, the Commonwealth of  Puerto
  Rico  or  to any of their agencies or governmental subdivisions, (2) any
  trustee which is required by any other provision  of  law  to  render  a
  full,  complete  and itemized annual financial report to the congress of
  the United States or to the legislature of  this  state,  provided  that
  such  report  contains  the information required of trustees pursuant to
  this  article,  (3)   corporations   organized   under   the   religious
  corporations  law  and  other  religious agencies and organizations, and
  charities, agencies and organizations operated, supervised or controlled
  by or in connection  with  a  religious  organization,  (4)  educational
  institutions incorporated under the education law or by special act, (5)
  any    hospital,   (6)   fraternal,   patriotic,   veterans,   volunteer
  firefighters, volunteer ambulance workers,  social,  student  or  alumni
  organizations  and  historical societies chartered by the New York state
  board of regents, (7) a trust for which there  is  a  corporate  trustee
  acting  as  sole  trustee  or  co-trustee under the terms of a will of a
  decedent who died domiciled in a state other than New York  or  a  trust
  instrument  executed by a non-resident of the state of New York, (8) any
  trust in which and so long as the charitable  interest  is  deferred  or
  contingent,  (9)  any  person who, in his or her capacity as an officer,
  director or trustee of any corporation or organization mentioned in this
  paragraph, holds property for the religious, educational  or  charitable
  purposes of such corporation or organization so long as such corporation
  or organization is registered with the attorney general pursuant to this
  section,  (10)  any  cemetery  corporation  subject to the provisions of
  article fifteen of the not-for-profit corporation law,  (11)  the  state
  parent   teachers   association  and  any  parent  teachers  association
  affiliated with an  educational  institution  that  is  subject  to  the
  jurisdiction  of  the  state  education department, (12) any corporation
  organized under article forty-three of the insurance law. The provisions
  of this subdivision shall apply only to the registration  and  reporting
  requirements  of  this  section  and  shall not limit, impair, change or
  alter  any  other  provision  of  this   article,   the   not-for-profit
  corporation law or any other provision of law.
    (c)  The  attorney  general shall establish and maintain a register of
  all trustees containing such information as the attorney  general  deems
  appropriate,  and  to  that end may conduct such investigations as he or
  she  deems  necessary  and  shall  obtain  from  public  records,  court
  officers,  taxing  authorities,  trustees  and other sources without the
  payment  of  any  fee  or  charge,  whatever  information,   copies   of
  instruments,  reports  and  records are needed for the establishment and
  maintenance of the register.
    (d)  Every  trustee  shall  file with the attorney general, within six
  months after any property held by him or her or any income therefrom  is
  required  to be applied to charitable purposes, a copy of the instrument
  providing for his or her title, powers and  duties;  provided,  however,
  that  any  trustee  currently  registered  with  the  department  of law
  pursuant to article 7-A of the executive law shall  be  deemed  to  have
  complied  with  this paragraph. If any property held by a trustee or any
  income therefrom is required to be applied to charitable purposes at the
  time this section becomes effective, the filing shall be made within six
  months thereafter.
    (e) (1) Whenever any trustee or other person, holding property or  any
  income  therefrom,  which  may  be required at any time to be devoted to
  charitable purposes, shall file in any  court  in  this  state  (A)  any
  petition  for instructions relating to the administration or use of such
  property or income,  (B)  any  petition  for  the  construction  of  the
  instrument under which such property or income is held, (C) any petition
  respecting the disposition or distribution of such property or income or
  (D)  any  accounting,  due  notice  of the action or proceeding shall be
  served by the petitioner upon the attorney general together with a  copy
  of any petition, accounting, will or trust instrument.
    (2)  Whenever  any  instrument of a testamentary nature which provides
  for a disposition for charitable purposes  is  the  subject  of  (A)  an
  application  for  denial of probate, (B) objections to probate or (C) an
  application for  approval  of  a  compromise  agreement  in  respect  of
  probate,  due  notice of the action or proceeding shall be served by the
  petitioner upon the  attorney  general  together  with  a  copy  of  the
  instrument and of any such application, objections or agreement.
    (f)  (1)  Every  trustee  shall,  in  addition to filing copies of any
  instrument required under paragraph (d) of this section, file  with  the
  attorney  general  and  all  identified current charitable beneficiaries
  written annual financial reports, under penalties for perjury, on  forms
  prescribed  by the attorney general, setting forth information as to the
  nature of the assets held for charitable purposes and the administration
  thereof by the trustee, and shall, file with the  attorney  general  and
  all   identified  current  charitable  beneficiaries  a  notice  of  the
  termination of the interest of any party in a trust that would cause all
  or part of the trust assets to be applied to charitable purposes  or  to
  have  the  income  therefrom  so  applied,  in accordance with rules and
  regulations of the attorney general.
    (2) Trustees required to report to the attorney general under  article
  7-A of the executive law shall comply with this paragraph by filing with
  the  attorney  general in addition to any other reports required herein,
  copies of the  financial  reports  required  by  section  172-b  of  the
  executive law unless such reports have been filed previously.
    (g)  Unless the filing of reports is suspended as herein provided, the
  first report of any trustee shall be filed  no  later  than  six  months
  after  the  end of the fiscal year of the trustee during which he or she
  becomes subject to this section.
    (h) The attorney general shall make rules  and  regulations  necessary
  for  the administration of this section, including rules and regulations
  as to the time for filing reports, the contents thereof, and the  manner
  of  executing  and  filing them. He or she may classify trusts, estates,
  corporations and  other  trustees  as  to  purpose,  nature  of  assets,
  duration,  amount  of  assets,  amounts  to  be  devoted  to  charitable
  purposes, or otherwise, and may establish different rules for  different
  classes  as to time and nature of the reports required, to the ends that
  he or she shall receive current financial reports as to all such trusts,
  estates, corporations or other trustees which will enable him or her  to
  ascertain  whether  they  are  being properly administered. The attorney
  general  may  suspend the filing of financial reports as to a particular
  trustee for a reasonable,  specifically  designated  time  upon  written
  application  of  the  trustee,  signed  under penalties for perjury, and
  filed with the attorney general and after the attorney general has filed
  in the register of trustees a written statement that  the  interests  of
  the  beneficiaries  will  not  be  prejudiced  thereby and that periodic
  reports during the term of such suspension are not required  for  proper
  supervision  by  his  or her office. The filing of the financial reports
  required by this section, or the  exemption  from  such  filing  or  the
  suspension  therefrom,  shall  not have the effect of absolving trustees
  from any responsibility for accounting for property or  income  held  by
  them  for  charitable  purposes. A copy of an account or other financial
  report filed by a trustee in any court in this state, if the account  or
  other  financial  report  substantially  complies  with  the  rules  and
  regulations of the attorney general, may be filed as a financial  report
  under this section.
    (i)   The   attorney   general   may   investigate   transactions  and
  relationships of trustees for the purpose of determining whether or  not
  property  held  for  charitable  purposes has been and is being properly
  administered. The attorney general, his or her assistants,  deputies  or
  such other officers as may be designated by him or her, are empowered to
  subpoena   any  trustee,  agent,  fiduciary,  beneficiary,  institution,
  association or corporation or other witness, examine  any  such  witness
  under  oath  and,  for this purpose, administer the necessary oaths, and
  require the production of any books or papers which they  deem  relevant
  to the inquiry.
    (j) No person shall be excused from attending such inquiry pursuant to
  the  mandate  of  a subpoena, or from producing a paper or book, or from
  being examined or required to answer a question on the ground of failure
  of tender or payment of a witness fee or mileage, unless at the time  of
  such  appearance or production, as the case may be, such witness makes a
  demand for such payment as a condition precedent to the offering of  the
  testimony or production required by the subpoena and such payment is not
  thereupon  made.  The provisions for payment of a witness fee or mileage
  do not apply to any trustee or other person holding funds for charitable
  purposes, or to any person in the  employ  of  any  such  person,  whose
  conduct or practices are being investigated.
    (k)  If  a  person subpoenaed to attend such inquiry fails to obey the
  mandate of a subpoena without  reasonable  cause,  or  if  a  person  in
  attendance upon such inquiry shall without reasonable cause refuse to be
  sworn or to be examined or to answer a question or to produce a paper or
  book when ordered so to do by the officer conducting such inquiry, he or
  she  shall  be  subject  to proceedings under subdivision (b) of section
  2308 of the civil practice law and rules.
    (l) The register, copies of the instruments and the reports filed with
  the attorney general shall be open  to  public  inspection,  subject  to
  reasonable  rules and regulations adopted by the attorney general, which
  may include such limitations  as  to  type  of  information  subject  to
  inspection  or  purpose of inspection as the attorney general shall deem
  to be in the public interest. The attorney general shall  withhold  from
  public inspection copies of any report filed with any other governmental
  agency  of  this state or of the United States and required by law to be
  kept confidential by  such  agency,  and  shall,  upon  request  of  the
  trustee,  withhold from public inspection that portion of any instrument
  filed which does not relate to charitable  purposes  and  which  is  not
  otherwise of public record.
    (m)  The  attorney  general  may  institute appropriate proceedings to
  secure  compliance  with  this  section  and  to   secure   the   proper
  administration  of any trust, corporation or other relationship to which
  this section applies. The powers and  duties  of  the  attorney  general
  provided  in this section are in addition to all other powers and duties
  he or she may have. No court shall modify or terminate  the  powers  and
  responsibilities  of  any trust, corporation or other trustee unless the
  attorney general is a party to  the  proceeding,  but  nothing  in  this
  section shall otherwise impair or restrict the jurisdiction of any court
  with respect to the matters covered by it. The failure of any trustee to
  register  or  to  file reports as required by this section may be ground
  for judicial removal of any person responsible for such failure.
    (n) This section shall apply regardless of any contrary provisions  of
  any  instrument and shall be liberally construed so as to effectuate its
  general purpose of protecting the public interest  in  charitable  uses,
  purposes and dispositions.
    (o)  Every  officer,  agency,  board  or  commission  of this state or
  political subdivisions of  this  state  or  agencies  thereof  receiving
  applications  for exemption from taxation of any trustee subject to this
  section shall annually file with the attorney  general  a  list  of  all
  applications  received  during  the  year  and shall notify the attorney
  general  of  any  suspension  or  revocation  of  a  tax  exempt  status
  previously granted.
    (p)  The  attorney general shall collect from each trustee at the time
  of filing of the periodic reports required by this section a fee for the
  filing of such reports as follows:
    (1) Twenty-five dollars, if the net worth of the property held by such
  trustee for charitable purposes is less than fifty thousand dollars,
    (2) Fifty dollars if such net worth is fifty thousand dollars or  more
  but less than two hundred and fifty thousand dollars,
    (3)  One  hundred  dollars  if such net worth is two hundred and fifty
  thousand dollars or more but less than one million dollars,
    (4) Two hundred fifty dollars if such net worth is one million dollars
  or more but less than ten million dollars,
    (5) Seven hundred and fifty dollars if such net worth is  ten  million
  dollars or more but less than fifty million dollars, and
    (6)  One  thousand  five  hundred  dollars  if such net worth is fifty
  million dollars or more.
    (q) Any trustee shall be exempt from the annual reporting requirements
  of this section by filing each year with the attorney general a verified
  statement executed by such trustee  attesting  that  during  the  annual
  reporting  period (1) the gross receipts received by said trustee during
  such annual reporting period were less than twenty-five thousand dollars
  and that (2) the total assets held by such trustee  at  no  time  during
  such  annual reporting period exceeded twenty-five thousand dollars. For
  the purposes of this paragraph, gross receipts mean the  total  received
  during  the  financial  reporting  period  of  (A)  gifts,  grants,  and
  contributions; (B) gross income and revenue from all  sources;  and  (C)
  gross  amounts  from  sales  of  assets, other than inventory; and total
  assets mean the total principal and the accumulated income, if any, held
  by such trustee for purposes  of  charitable  distribution  on  any  day
  during such annual reporting period.
    (r)  A  trustee  who fails to comply with paragraph (d), (f) or (g) of
  this section shall, after notice of said failure served upon him or  her
  by  the attorney general by certified mail, return receipt requested, be
  liable to the state of New York for a fine of ten dollars a day  not  to
  exceed  one  thousand  dollars  for  each  failure  to  comply after the
  expiration of the thirty day period following the receipt of the  notice
  from  the  attorney  general,  except  that  the  time  to comply may be
  extended by the attorney general. Where the attorney general, after such
  thirty  day  period  has  expired, finds that the failure to comply with
  paragraph (d), (f) or (g) of this section is due to excusable  ignorance
  or  inadvertence  or  other reasonable cause, the attorney general shall
  waive the fine imposed by this paragraph.
    (s) A trustee shall not be qualified to make application for funds  or
  grants  or  to  receive  such funds from any department or agency of the
  state without certifying compliance with paragraphs (d), (f) and (g)  of
  this  section and all applicable registration and reporting requirements
  of article seven-A of the executive law.