Tuesday, May 29, 2012

Kentucky Authorizes Series Statutory Trusts

Kentucky Authorizes Series Statutory Trusts

      As previously noted, Kentucky has become the first state to enact the Uniform Statutory Trust Act, it in turn enabling series statutory trusts.  This bill will become effective on July 12, 2012.  With this statute, Kentucky becomes the 5th state (along with Delaware, Virginia, Wyoming and Connecticut; they may be organized as well in D.C.) to authorize a series trust.  At this juncture, Kentucky does not authorize either series LLCs or series limited partnerships.
      A series statutory trust has the capacity to partition its assets, liabilities and beneficial owners into one or more separate series, and with respect to each individual series, designate particular trustees responsible for its direction and management.  Assuming a variety of statutory requirements are satisfied, the liabilities of each individual series are enforceable only against the assets of or associated with that series, and each series will have the capacity to enter into contracts and to sue and to be sued in its own name.  By way of example, separate pieces of real property could be titled in the name of each individual series of a statutory trust, but there will only be one statutory trust in existence.  Note, however, that the series mechanism will not be a means of avoiding the Kentucky limited liability entity tax.  Rather, each series will, for purposes of that tax, be treated as a distinct entity.
      In order validly create a series, a variety of requirements must be satisfied; absent their satisfaction, the inter-series liability shield will not exist.  In summary, those requirements are:

·                     The certificate of trust as filed with the Kentucky Secretary of State must affirmatively state that the statutory trust may organize series;

·                     The governing instrument of the statutory trust must provide for the organization of series; and

·                     The records of the statutory trust must reflect the association of beneficial owners, trustees, assets and liabilities with each series.

      It is upon this last factor that most challenges to the inter-series liability shields will be based, and any series statutory trust should expect to expend significant resources in maintaining the necessary records.  Those of the believe that utilization of a series will be a cost saving vis-à-vis the organization of distinct, for example, single member LLC holding companies are likely due an unpleasant surprise.
      The series structure, outside of its traditional application in the organization of investment companies and in asset securitization, is relatively new.  To date, as noted above, series statutory trusts exist in only four other jurisdictions.  Delaware and D.C. have series limited partnerships, and all of Delaware, D.C., Illinois, Iowa, Kansas, Nevada, Oklahoma, Tennessee, Texas and Utah have series LLCs.
      Consequent to their relative novelty, there remain significant unresolved questions with respect to series.  As alluded to above, the degree of specificity that must be maintained in order to secure the inter-series liability shields has not been judicially determined.  Significant questions exist as well with respect to federal income tax classification (the IRS has proposed, but they are not yet final, regulations as to federal tax classification), state tax classification, nexus, whether an individual series can file for bankruptcy protection, the mechanism by which a security interest may be taken in the assets of an individual series and questions as to whether the inter-series liability shield will be respected in states that did not provide for the series in that particular form of organization.
      The fact that the Kentucky General Assembly has enabled the creation of series does not mean that the issues with respect to their utilization have been resolved.  Caution is highly warranted.

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