As used in this chapter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
(1) TRUST INSTITUTION. Any state bank, any national bank or any trust company authorized to act in a fiduciary capacity in this state and under the supervision of the Comptroller of the Currency of the United States or the Federal Reserve System, or the Superintendent of Banks of the State of Alabama.
(2) AFFILIATED TRUST INSTITUTION. A trust institution which, together with one or more other trust institutions, are each owned or controlled by a bank holding company which is under the supervision of the Board of Governors of the Federal Reserve System.
(3) OWNED OR CONTROLLED. The ownership by a bank holding company of stock possessions of at least 80 percent of the voting power of all classes of stock and at least 80 percent of each class of the nonvoting stock (other than nonvoting stock which is limited and preferred as to dividends) of the trust institution.
(4) FIDUCIARY. Any trust institution or person acting in the capacity of executor, administrator, administrator with the will annexed, administrator de bonis non, guardian, testamentary trustee, trustee appointed by any court and trustee, agent or custodian under any written agreement, declaration or instrument of trust, either solely or together with others.
(5) COMMON TRUST FUND. A fund established, maintained and administered pursuant to the requirements of this chapter by a trust institution exclusively for the collective investment and reinvestment of moneys contributed thereto by such trust institution in its capacity as a fiduciary or cofiduciary or by an affiliated trust institution in its capacity as a fiduciary or cofiduciary.
(6) ESTATE OR ESTATES. Such term shall include any trust, estate or fund administered by a trust institution in a fiduciary capacity.
(7) PARTICIPATION. The interest of a participating trust in the common trust fund.
(8) PARTICIPANT. Any trust, estate or fund administered by a trust institution in a fiduciary capacity having a 'participation.'
(9) SECURITY OR SECURITIES. Such term shall include all types of property in which the trust institution is authorized to invest the assets of the common trust fund.
No less frequently than once during each period of three months, the trust institution administering a common trust fund shall determine the value of the securities in the common trust fund as of the dates set for the valuation thereof. No participation shall be admitted to or withdrawn from the common trust fund, except (i) on the basis of such valuation and (ii) as of such valuation date.
The trust institution shall have the exclusive management and control of each common trust fund administered by it and the sole right at any time to sell, convert, exchange, transfer or otherwise change or dispose of the assets comprising the same. The ownership of such assets shall be solely in the trust institution as fiduciary and shall be considered as assets held by it as fiduciary. A trust institution shall not invest any of its own funds in a common trust fund administered by it or by an affiliated trust institution; and, if the trust institution, because of a creditor relationship or any other reason, acquires any interest in a participation in such common trust fund, the participation shall be withdrawn on the first date on which such withdrawal can be effected; however, in no case shall an unsecured advance to a participant until the time of the next withdrawal be deemed to constitute the acquisition of an interest by a trust institution. A trust institution may charge a fee for the management of a common trust fund administered by it; provided, that the fractional part of such fee proportionate to the interest of each participant shall not, when added to any other compensations charged by the trust institution or by an affiliated trust institution to the participant, exceed the total amount of compensations which would have been charged to said participant if no assets of said participant had been invested in participations in the common trust fund.
No mistake made in good faith and in the exercise of due care in connection with the administration of a common trust fund shall be deemed to be a violation of this chapter or of any rules or regulations issued pursuant thereto if promptly after discovery of the mistake the trust institution takes whatever action may be practical in the circumstances to remedy the mistake.
Nothing contained in this chapter shall prohibit a trust institution, when it acts in accordance with specific authority contained in the instrument or instruments under which the trust institution acts, from establishing, maintaining, administering and investing in, without regard to the requirements and limitations of this chapter, one or more common trust funds differing from the common trust funds expressly permitted by this chapter.
Unless ordered by a court of competent jurisdiction, a trust institution administering a common trust fund shall not be required to render a court accounting with regard to such fund, but it may file returns and make accountings in the same manner and for the same purposes as is provided by law for other fiduciaries.
A common trust fund, whether established, maintained, and administered pursuant to the requirements of this chapter or established, maintained, administered, and invested in without regard to the requirements and limitations of this chapter, as provided in Section 5-12A-13, shall not be subject to taxation under any income tax law of the State of Alabama. The computation of gain, loss, basis, taxable income, taxable loss, and other income tax treatment of a common trust fund and its participants, shall be determined in accordance with 26 U.S.C. §584, as amended from time to time. Every trust institution maintaining a common trust fund shall make a return under oath for each fiscal year stating specifically with respect to the fund the items of gross income and the deductions allowed by law, and shall include in the return the names and addresses of the participants entitled to share in the net income of the fund and the amount of the proportionate share of each participant.
Any trust institution may establish, maintain and administer one or more common trust funds.
Any trust institution, in its capacity as fiduciary or cofiduciary, whether such fiduciary capacity arose before or was created after July 8, 1943, may invest funds which it lawfully holds for investment in such capacity in interests or participations in one or more common trust funds, if such investment is not prohibited by the instrument, judgment, decree or order creating the fiduciary relationship and if, in the case of cofiduciaries, the trust institution procures the consent of its cofiduciary or cofiduciaries to such investment.
Each common trust fund shall be established and maintained in accordance with a written plan (referred to herein as the plan) approved by resolution of the board of directors of the trust institution and approved in writing by competent legal counsel. The plan shall provide that the common trust fund shall be administered under the laws of this state and of the United States and in conformity with the rules and regulations promulgated from time to time under authority of such laws and shall contain full and detailed provisions, not inconsistent with the provisions of this chapter, as to the manner in which the common trust fund is to be operated, the investment powers with respect to the common trust fund, the allocation and apportionment of income, profits and losses, the terms and conditions governing the admission or withdrawal of investments or participations in the common trust fund, the auditing and settlement of accounts of the trust institution with respect to the common trust fund, the basis and method of valuing securities in the common trust fund, the basis upon which the common trust fund may be terminated and such other matters as may be necessary to define clearly the rights of participants in the common trust fund. A copy of the plan shall be available at the principal office of the trust institution for inspection during all regular business hours to any person having an interest in a participation in the common trust fund. The plan may or may not provide for the amortization of the premium upon bonds or other obligations, the disposition of discounts and profits and the allocation of the same to principal or income accounts or the apportionment of the same between principal and income accounts, the establishment and maintenance of a reserve out of current interest from mortgage investments against which realized losses on mortgages may be charged and other like matters. The provisions of the plan shall control all participants therein and the rights and benefits of all persons interested in such participations as beneficiaries or otherwise.
The plan may be amended from time to time by the fiduciary with the approval of the board of directors of the trust institution. Any such amendment shall be filed with the original plan, together with a certified copy of the resolution of the board of directors of the trust institution approving the same.
If the instrument under which a trust institution acts as fiduciary, whether such fiduciary capacity arose before or is created after July 8, 1943, shall either expressly or by its silence limit or restrict the investment of moneys of the estate and securities to the class authorized by law as legal investments, the trust institution may, in its capacity as sole fiduciary or with the consent of any person acting with it in a fiduciary capacity, invest and reinvest moneys of the estate in any such common trust fund maintained by the trust institution or by an affiliated trust institution, provided, the securities composing such fund consist solely of securities of the class authorized as legal investments for funds held by a fiduciary. If the instrument under which the trust institution acts as fiduciary, whether such fiduciary capacity arose before or is created after July 8, 1943, shall authorize investments of moneys of the estate in a common trust fund or in investments other than those designated by law as legal investments or shall authorize the trust institution, either alone or in conjunction with any person acting with it in a fiduciary capacity, to exercise its or their discretion with respect to the investment of moneys of the estate, the trust institution may, in its capacity as sole fiduciary or with the consent of any person acting with it in a fiduciary capacity, invest and reinvest moneys of the estate in any such common trust fund maintained by it or by an affiliated trust institution. Any such common trust fund consisting solely of moneys of estates contributed thereto by the trust institution pursuant to authority contained in any such instrument creating the fiduciary capacity to invest moneys of the estates in a common trust fund or in investments other than legal investments or pursuant to such discretionary powers with respect to the investment of moneys creating the fiduciary capacity may be composed of investments other than those of the class designated by law as legal investments for funds held by fiduciaries. In order to determine whether the investment of funds received or held by a trust institution as fiduciary in a participation in a common trust fund is proper, the trust institution may consider the common trust fund as a whole and shall not, for example, be prohibited from making such investment because any particular asset is nonincome-producing.
The trust institution shall invest the moneys of an estate (whether the estate is administered by such trust institution or by an affiliated trust institution) in such common trust fund by adding the same thereto and by apportioning a participation therein to such estate in the proportion that the moneys of the estate added thereto bears to the aggregate value of all the securities of such fund at the time of such investment, including in such securities the moneys of the estate so added. The withdrawal of a participation of such common trust fund shall be on the basis of its proportionate interest in the aggregate value of all the securities of such fund at the time of such withdrawal, as hereinafter provided. The participating interest of any estate in such common trust funds may, from time to time, be withdrawn in whole or in part by the trust institution administering the estate and shall be withdrawn within a period of three months following the written request to do so of any person acting with the trust institution administering the estate in a fiduciary capacity. Funds for the purpose of any withdrawal shall be made promptly available by the trust institution through sale of securities of the common trust fund. Upon such withdrawals, the trust institution may make distribution in cash or ratably in kind or partly in cash and partly in kind; provided, that all such distribution as of any one time shall be made on the same basis.
The trust institution shall designate clearly upon its records the names of the fiduciary accounts which own a participation in the common trust fund and the extent of the interest of such fiduciary accounts therein. No fiduciary account owning or holding an investment or participation in a common trust fund shall be deemed to have individual ownership of any asset in such common trust fund, but should be deemed to have only a proportionate undivided interest in the common trust fund.
At least once during each period of 12 months, the trust institution shall cause an audit to be made of the common trust fund by an auditor or auditors responsible only to the board of directors of the trust institution. The report of such audit shall include a list of the investments comprising the common trust fund at the time of the audit, which shall show the valuation placed on each item as of the date of the audit, a statement of purchases, sales and any other investment changes and of all income and disbursements during the period to which the audit relates. The period of the first audit shall commence with the establishment of the common trust fund, and each succeeding audit shall commence at the end of the period covering the preceding audit. The reasonable expense of any such audit may be charged to the common trust fund, and a copy of such audit shall be available at the principal office of the trust institution for inspection during all regular business hours to any person having an interest in a participation in the common trust fund; provided, that the trust institution shall be required to furnish a copy of such audit to any person having a share in the investments of the common trust fund without expense to such person should the interested person request a copy of such audit.
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