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NO. 37. AN ACT RELATING TO CHARITABLE GIFT ANNUITIES.

(S.60)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 8 V.S.A. § 3718a is added to read:

§ 3718a. CHARITABLE GIFT ANNUITIES

(a) Charitable gift annuity is not insurance. The issuance of a charitable gift annuity by a qualified charitable organization does not constitute engaging in the business of insurance in this state.

(b) Not unfair or deceptive trade practice. The issuance of a charitable gift annuity does not constitute a violation of section 4724 of this title.

Sec. 2. 9 V.S.A. chapter 68 is added to read:

Chapter 68. Charitable Gift Annuities

§ 2517. CHARITABLE GIFT ANNUITIES

(a) Definitions. As used in this section:

(1) "Annuity obligation" means the present value of the charity’s payment obligation to the donor as calculated by the Internal Revenue Code actuarial tables.

(2) "Charitable gift annuity" means an annuity described in Sections 501(m)(5) and 514(c)(5) of the Internal Revenue Code of 1986, 26 U.S.C. §§ 501(m)(5) and 514(c)(5).

(3) "Charitable organization" means an entity described either in Section 501(c)(3) or 170(c) of the Internal Revenue Code of 1986, 26 U.S.C. § 501(c)(3) or 170(c).

(4) "Qualified charitable organization" means a charitable organization which:

(A) has a minimum of $300,000.00 in unrestricted cash, cash equivalents, or publicly-traded securities, in addition to the assets necessary to fund the charity’s outstanding annuity obligations; and

(B) has been in continuous operation for at least three years, or is a successor or affiliate of a charitable organization that has been in continuous operation for at least three years.

(b) Charitable gift annuities may be issued and maintained only by a qualified charitable organization.

(c) Notice to donor. When entering into an agreement for a charitable gift annuity, the charitable organization shall disclose to the donor in writing in the annuity agreement, in print no smaller than that used in the annuity agreement generally, that a charitable gift annuity is not insurance under the laws of this state, and is not subject to regulation as insurance by the department of banking, insurance, securities, and health care administration, or protected by an insurance guaranty association. The following information shall also be similarly disclosed:

(1) the intervals at which payment is to be made;

(2) when payments are scheduled to begin; and

(3) the amount of each payment.

(d) Effect of failure to provide notice. The failure of a charitable organization to comply with the notice requirements imposed under subsection (c) of this section does not prevent a charitable gift annuity that otherwise meets the requirements of this section from constituting a valid charitable gift annuity. The attorney general may enforce the performance of the requirements of subsection (c) by sending a letter by certified mail, return receipt requested, demanding that the charitable organization comply with the requirements of subsection (c). A charitable organization that fails to comply with subsection (c) shall be subject to a civil penalty not to exceed $1,000.00 for each noncomplying agreement, up to a maximum total penalty of $10,000.00.

§ 2518. ENFORCEMENT AND REMEDIES

(a) Enforcement. The attorney general shall enforce the provisions of section 2517 of this title and may bring an action in the name of the state against a charitable organization for noncompliance, to restrain by temporary or permanent injunction the noncompliance, or to dissolve a domestic corporation or revoke the certificate of authority granted a foreign corporation. The action may be brought in the superior court of the county in which such person resides, has a place of business or is doing business. Said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter, such injunctions to be issued without bonds, or to dissolve, or revoke the certificate of authority of, a corporation.

(b) Civil penalties; restitution. In addition to subsection (a) of this section, the attorney general may request and the court is authorized to render any other temporary or permanent relief, or both, as may be in the public interest including, but not limited to, the imposition of a civil penalty of not more than $10,000.00 for each violation of subsection 2517(b) of this title and an order for restitution for each violation of subsection 2517(b) of this title in the amount of the present value of the remaining annuity obligation on behalf of an aggrieved donor.

(c) Assurance of discontinuance. In any case where the attorney general has authority to institute an action or proceeding under this section, in lieu thereof he or she may accept an assurance of discontinuance of any method, act or practice in violation of section 2517 of this title from any person alleged to be engaged or to have been engaged in such violation. Such assurance may include a stipulation for affirmative action by such person, payment of a civil penalty, or of an amount to be held in escrow pending the outcome of an action or as restitution to aggrieved donors, or any of the above. Any such assurance of discontinuance shall be in writing and be filed with the Washington superior court. Evidence of a violation of such assurance shall be prima facie proof of a violation of section 2517 of this title.

(d)(1) Civil investigation. Whenever the attorney general has reason to believe any person to be or to have been in violation of section 2517of this title, the attorney general may examine or cause to be examined by any agent or representative designated by the attorney general for that purpose, any books, records, papers, memoranda and physical objects of whatever nature bearing upon each alleged violation, and may demand written responses under oath to questions bearing upon each alleged violation. The attorney general may require the attendance of such person or of any other person having knowledge in the county where such person resides or has a place of business, or in Washington County if such person is a nonresident or has no place of business within the state, and may take testimony and require proof material for his or her information, and may administer oaths or take acknowledgement in respect of any book, record, paper or memorandum. The attorney general shall serve notice of the time, place and cause of such examination or attendance, or notice of the cause of the demand for written responses, at least ten days prior to the date of such examination, personally or by certified mail, upon such person at his or her principal place of business, or, if such place is not known, to his or her last known address. Any book, record, paper, memorandum or other information produced by any person pursuant to this subsection shall not, unless otherwise ordered by a court of this state for good cause shown, be disclosed to any person other than the duly authorized agent or representative of the attorney general or a state’s attorney or another law enforcement officer engaged in legitimate law enforcement activities, unless with the consent of the person producing the same. This subsection shall not be applicable to any criminal investigation or prosecution brought under the laws of this or any state.

(2) A person upon whom a notice is served pursuant to the provisions of this subsection shall comply with the terms thereof unless otherwise provided by the order of a court of this state. Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigation under this subsection, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any documentary material in the possession, custody or control of any person who is the subject of any such notice, or mistates or conceals any information, shall be fined not more than $5,000.00.

(3) Whenever any person fails to comply with any notice served upon him or her under this subsection, or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the attorney general may file, in the superior court in the district in which such person resides or has his or her principal place of business, or in Washington County if such person is a nonresident or has no principal place of business in this state, and serve upon such person a petition for an order of such court for the enforcement of this subdivision. Whenever any petition is filed under this subdivision, such court shall have jurisdiction to hear and determine the matter so presented, to enter such order or orders to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of this subdivision. Any disobedience of any order entered under this subsection by any court shall be punished as a contempt thereof.

(e) Any person who violates the terms of an injunction issued under this section shall pay to the state a civil penalty of not more than $10,000.00 for each violation. For the purposes of this subsection, the court issuing such injunction shall retain jurisdiction, and the cause shall be continued, and, in such cases, the attorney general may petition for recovery of such civil penalty.

Sec. 3. TRANSITION

The issuance of a charitable gift annuity prior to the effective date of this act does not constitute engaging in the business of insurance in this state.

Approved: May 25, 2001