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First Substitute S.B. 95
Senator Wayne L. Niederhauser proposes the following substitute bill:
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UTAH EDUCATIONAL SAVINGS PLAN
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AMENDMENTS
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2010 GENERAL SESSION
4
STATE OF UTAH
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Chief Sponsor: Wayne L. Niederhauser
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House Sponsor:
____________
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8
LONG TITLE
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General Description:
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This bill modifies provisions related to the Utah Educational Savings Plan.
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Highlighted Provisions:
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This bill:
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. amends the governance and oversight authority of the State Board of Regents for the
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Utah Educational Savings Plan;
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. modifies Utah Educational Savings Plan provisions, including:
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. clarifying the plan's name, powers, and duties;
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. beginning with the 2011 taxable year, eliminating a requirement to reduce the
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value of the Utah Educational Savings Plan tax credit or deduction when the
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Consumer Price Index decreases from one year to the next; and
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. exempting certain withdrawals from the add back provisions of a Utah state
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income tax credit or deduction previously claimed;
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. defines terms; and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill provides an immediate effective date.
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Utah Code Sections Affected:
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AMENDS:
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53B-8-110, as last amended by Laws of Utah 2009, Chapter 329
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53B-8a-101, as last amended by Laws of Utah 2008, Chapter 196
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53B-8a-102, as last amended by Laws of Utah 2008, Chapter 196
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53B-8a-103, as last amended by Laws of Utah 2007, Chapter 100
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53B-8a-104, as last amended by Laws of Utah 2007, Chapter 100
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53B-8a-105, as last amended by Laws of Utah 2009, Chapter 356
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53B-8a-106, as last amended by Laws of Utah 2008, Chapters 196 and 389
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53B-8a-107, as last amended by Laws of Utah 2008, Chapter 196
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53B-8a-108, as last amended by Laws of Utah 2008, Chapter 196
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53B-8a-109, as last amended by Laws of Utah 2008, Chapter 196
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53B-8a-110, as enacted by Laws of Utah 1996, Second Special Session, Chapter 4
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53B-8a-111, as last amended by Laws of Utah 2008, Chapter 196
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53B-8a-112, as last amended by Laws of Utah 2007, Chapter 100
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53B-8a-113, as last amended by Laws of Utah 2007, Chapter 100
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59-1-403, as last amended by Laws of Utah 2009, Chapters 31, 45, 64, 203, and 251
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59-7-105, as last amended by Laws of Utah 2008, Chapter 389
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59-7-106, as last amended by Laws of Utah 2009, Chapter 312
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59-10-114, as last amended by Laws of Utah 2008, Chapters 382 and 389
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59-10-201, as last amended by Laws of Utah 2008, Chapter 389
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59-10-202, as last amended by Laws of Utah 2008, Chapters 382 and 389
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59-10-1017, as renumbered and amended by Laws of Utah 2008, Chapter 389
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59-10-1313, as enacted by Laws of Utah 2009, Chapter 251
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63G-2-305, as last amended by Laws of Utah 2009, Chapters 64 and 121
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
53B-8-110
is amended to read:
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53B-8-110. Regents' Scholarship Program -- Supplemental award to encourage
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college savings.
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(1) A student who qualifies for the Base Regents' Scholarship in accordance with the
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provisions of Section
53B-8-109
may be awarded up to an additional $400 as provided in this
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section.
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(2) A student who qualifies for the Base Regents' Scholarship shall be awarded $100
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for a year that:
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(a) the student was 14, 15, 16, or 17 years of age; and
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(b) at least $100 in contributions, excluding transfers, investment earnings, and
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interest, was deposited in a Utah Educational Savings Plan [Trust] account that designated the
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student as the beneficiary.
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Section 2.
Section
53B-8a-101
is amended to read:
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CHAPTER 8a. UTAH EDUCATIONAL SAVINGS PLAN
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53B-8a-101. Purpose.
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(1) (a) The Legislature finds that the general welfare and well-being of the state are
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directly related to educational levels and skills of the citizens of the state.
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(b) Therefore, a vital and valid public purpose is served by the creation and
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implementation of programs which encourage and make possible the attainment of higher
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education by the greatest number of citizens of the state.
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(2) (a) The Legislature finds that the state has limited resources to provide additional
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programs for higher education funding and that the continued operation and maintenance of the
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state's public institutions of higher education and the general welfare of the citizens of the state
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will be enhanced by establishing a [program] plan which allows citizens of the state to invest
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money in a public trust for future application to the payment of higher education costs.
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(b) The Legislature further finds that [a program] the plan described in Subsection
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(2)(a) serves a vital and valid public purpose.
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(3) (a) In order to make available to the citizens of the state an opportunity to fund
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future higher education needs, it is necessary that a public trust be established in which moneys
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may be invested for future educational use.
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(b) It may also be necessary to establish and create an endowment fund, which may be
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funded with public funds, among other sources, the income from which may be made available
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to account owners to enhance or encourage their savings invested for future higher education
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costs or for use in scholarship or other college savings incentive programs.
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Section 3.
Section
53B-8a-102
is amended to read:
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53B-8a-102. Definitions.
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As used in this chapter:
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(1) "Account agreement" means an agreement between an account owner and the Utah
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Educational Savings Plan [Trust] entered into under this chapter.
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(2) "Account owner" means a person, estate, or trust, if that person, estate, or trust has
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entered into an account agreement under this chapter to save for the higher education costs on
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behalf of a beneficiary.
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(3) "Administrative fund" means the moneys used to administer the Utah Educational
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Savings Plan [Trust].
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(4) "Beneficiary" means the individual designated in an account agreement to benefit
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from the amount saved for higher education costs.
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(5) "Board" means the board of directors of the Utah Educational Savings Plan [Trust]
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which is the state Board of Regents acting in its capacity as the Utah Higher Education
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Assistance Authority under Title 53B, Chapter 12, Higher Education Assistance Authority.
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(6) "Endowment fund" means the endowment fund established under Section
105
53B-8a-107
which is held as a separate fund within the Utah Educational Savings Plan [Trust].
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(7) "Executive director" means the administrator appointed to administer and manage
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the Utah Educational Savings Plan.
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[(7)] (8) "Higher education costs" means qualified higher education expenses as
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defined in Section 529(e)(3), Internal Revenue Code.
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(9) "Plan" means the Utah Educational Savings Plan created in Section
53B-8a-103
.
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[(8) "Program administrator" means the administrator of the Utah Educational Savings
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Plan Trust appointed by the board to administer and manage the Utah Educational Savings Plan
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Trust.]
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[(9)] (10) "Program fund" means the program fund created under Section
53B-8a-107
,
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which is held as a separate fund within the Utah Educational Savings Plan [Trust].
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[(10)] (11) "Qualified investment" means an amount invested in accordance with an
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account agreement established under this chapter.
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[(11)] (12) "Tuition and fees" means the quarterly or semester charges imposed to
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attend an institution of higher education and required as a condition of enrollment.
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[(12) "Utah Educational Savings Plan Trust" means the Utah Educational Savings Plan
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Trust created under Section
53B-8a-103
.]
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Section 4.
Section
53B-8a-103
is amended to read:
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53B-8a-103. Creation of Utah Educational Savings Plan -- Powers and duties of
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plan.
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(1) There is created the Utah Educational Savings Plan [Trust], which may also be
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known and function as the Utah Educational Savings Plan Trust.
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[(2) The board is the trustee of the Utah Educational Savings Plan Trust.]
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(2) The plan:
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(a) is a non-profit, self-supporting agency that administers a public trust;
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(b) shall administer the various programs, funds, trusts, plans, functions, duties, and
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obligations assigned to the plan:
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(i) consistent with sound fiduciary principles; and
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(ii) subject to review of the board; and
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(c) shall be known as and managed as a qualified tuition program in compliance with
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Section 529, Internal Revenue Code, that is sponsored by the state.
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(3) [The board, in the capacity of trustee,] The plan may:
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[(a) exercise any authority granted by law to the Board of Regents;]
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[(b)] (a) make and enter into contracts necessary for the administration of the [Utah
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Educational Savings Plan Trust created under this chapter;] plan payable from plan moneys,
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including:
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(i) contracts for goods and services; and
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(ii) contracts to engage:
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(A) personnel, including consultants, actuaries, managers, counsel, and auditors for the
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purpose of rendering professional, managerial, and technical assistance and advice; and
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(B) one or more investment advisors, registered under the Investment Advisers Act of
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1940, with at least 5,000 advisory clients and at least $1,000,000,000 under management, to
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provide investment advice to the board with respect to the assets held in each account;
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[(c)] (b) adopt a corporate seal and change and amend it from time to time;
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[(d)] (c) invest moneys within the program fund:
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(i) (A) in any investments that are determined by the board to be appropriate [and are
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approved by the state treasurer]; or
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(B) in mutual funds registered under the Investment Company Act of 1940, consistent
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with the best interests of a designated beneficiary's higher education funding needs; and
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(ii) are in compliance with rules of the State Money Management Council applicable to
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gift funds;
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[(e)] (d) invest moneys within the endowment fund in any investments that are:
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(i) determined by the board to be appropriate;
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(ii) approved by the state treasurer; and
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(iii) in compliance with rules of the State Money Management Council applicable to
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gift funds;
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[(f)] (e) enter into agreements with account owners, any institution of higher education,
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any federal or state agency, or other entity as required to implement this chapter;
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[(g)] (f) solicit and accept any grants, gifts, legislative appropriations, and other
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moneys from the state, any unit of federal, state, or local government, or any other person, firm,
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partnership, or corporation for deposit to the administrative fund, endowment fund, or the
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program fund;
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[(h) enter into account agreements with account owners;]
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[(i) make payments to institutions of higher education pursuant to account agreements
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on behalf of beneficiaries;]
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[(j) make refunds to account owners upon the termination of account agreements
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pursuant to the provisions of this chapter;]
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[(k) appoint a program administrator and determine the duties of the program
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administrator and other staff as necessary and fix their compensation;]
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[(l)] (g) make provision for the payment of costs of administration and operation of the
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[Utah Educational Savings Plan Trust; and] plan;
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[(m) carry out the duties and obligations of the Utah Educational Savings Plan Trust
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pursuant to this chapter.]
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(h) carry out studies and projections in order to advise account owners regarding
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present and estimated future higher education costs and levels of financial participation in the
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plan required in order to enable account owners to achieve their educational funding objective;
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(i) participate in federal, state, local governmental, or private programs;
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(j) create public and private partnerships, including investment or management
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relationships with other 529 plans or entities;
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(k) promulgate, impose, and collect administrative fees and charges in connection with
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transactions of the plan, and provide for reasonable service charges;
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(l) procure insurance:
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(i) against any loss in connection with the property, assets, or activities of the plan; and
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(ii) indemnifying any member of the board from personal loss or accountability arising
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from liability resulting from a member's action or inaction as a member of the plan's board;
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(m) administer outreach efforts to:
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(i) market and publicize the plan and its products to existing and prospective account
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owners; and
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(ii) encourage economically challenged populations to save for post-secondary
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education;
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(n) adopt, trademark, and copyright names and materials for use in marketing and
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publicizing the plan and its products;
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(o) administer the funds of the plan;
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(p) sue and be sued in its own name; and
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(q) have and exercise any other powers or duties that are necessary or appropriate to
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carry out and effectuate the purposes of this chapter.
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Section 5.
Section
53B-8a-104
is amended to read:
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53B-8a-104. Office facilities, clerical, and administrative support for the Utah
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Educational Savings Plan.
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(1) The board shall provide to the [Utah Educational Savings Plan Trust] plan, by
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agreement, administrative and clerical support and office facilities and space.
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(2) Reasonable charges or fees may be levied against the [Utah Educational Savings
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Plan Trust] plan pursuant to the agreement for the services provided by the board.
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Section 6.
Section
53B-8a-105
is amended to read:
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53B-8a-105. Powers and duties of board.
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(1) The board has all powers necessary to carry out and effectuate the purposes,
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objectives, and provisions of this chapter pertaining to the [Utah Educational Savings Plan
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Trust, including the power to:] plan.
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(2) The duties, responsibilities, funds, liabilities, and expenses of the board in oversight
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and governance of the plan shall be maintained separate and apart from the board's other duties,
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responsibilities, funds, liabilities, and expenses.
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(3) The board shall make policies governing the:
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(a) administration of the plan; and
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(b) appointment and duties of the plan's executive director.
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[(1) engage:]
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[(a) one or more investment advisors, registered under the Investment Advisers Act of
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1940, with at least 5,000 advisory clients and at least $1,000,000,000 under management, to
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provide investment advice to the board with respect to the assets held in each account;]
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[(b) an administrator to perform recordkeeping functions on behalf of the Utah
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Educational Savings Plan Trust; and]
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[(c) a custodian for the safekeeping of the assets of the Utah Educational Savings Plan
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Trust;]
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[(2) carry out studies and projections in order to advise account owners regarding
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present and estimated future higher education costs and levels of financial participation in the
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Utah Educational Savings Plan Trust required in order to enable account owners to achieve
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their educational funding objective;]
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[(3) contract for goods and services and engage personnel as necessary, including
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consultants, actuaries, managers, counsel, and auditors for the purpose of rendering
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professional, managerial, and technical assistance and advice, all of which contract obligations
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and services shall be payable from any moneys of the Utah Educational Savings Plan Trust;]
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[(4) participate in any other way in any federal, state, or local governmental program
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for the benefit of the Utah Educational Savings Plan Trust;]
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[(5) promulgate, impose, and collect administrative fees and charges in connection
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with transactions of the Utah Educational Savings Plan Trust, and provide for reasonable
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service charges, including penalties for cancellations and late payments;]
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[(6) procure insurance against any loss in connection with the property, assets, or
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activities of the Utah Educational Savings Plan Trust;]
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[(7) administer the funds of the Utah Educational Savings Plan Trust;]
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[(8) solicit and accept for the benefit of the endowment fund gifts, grants, and other
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moneys, including general fund moneys from the state and grants from any federal or other
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governmental agency;]
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[(9) procure insurance indemnifying any member of the board from personal loss or
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accountability arising from liability resulting from a member's action or inaction as a member
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of the board; and]
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[(10) make rules and regulations for the administration of the Utah Educational
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Savings Plan Trust.]
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Section 7.
Section
53B-8a-106
is amended to read:
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53B-8a-106. Account agreements.
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The [Utah Educational Savings Plan Trust] plan may enter into account agreements
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with account owners on behalf of beneficiaries under the following terms and agreements:
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(1) (a) An account agreement may require an account owner to agree to invest a
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specific amount of money in the [Utah Educational Savings Plan Trust] plan for a specific
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period of time for the benefit of a specific beneficiary, not to exceed an amount determined by
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the [program administrator] executive director.
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(b) Account agreements may be amended to provide for adjusted levels of payments
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based upon changed circumstances or changes in educational plans.
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(c) An account owner may make additional optional payments as long as the total
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payments for a specific beneficiary do not exceed the total estimated higher education costs as
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determined by the [program administrator] executive director.
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(d) Subject to [Subsection] Subsections (1)(f) and (g), the maximum amount of a
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qualified investment that a corporation that is an account owner may subtract from unadjusted
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income for a taxable year in accordance with Title 59, Chapter 7, Corporate Franchise and
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Income Taxes, is [$1,650] $1,710 for each individual beneficiary for the taxable year beginning
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on or after January 1, [2008] 2010, but beginning on or before December 31, [2008] 2010.
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(e) Subject to [Subsection] Subsections (1)(f) and (g), the maximum amount of a
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qualified investment that may be used as the basis for claiming a tax credit in accordance with
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Section
59-10-1017
, is:
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(i) for a resident or nonresident estate or trust that is an account owner, [$1,650] $1,710
273
for each individual beneficiary for the taxable year beginning on or after January 1, [2008]
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2010, but beginning on or before December 31, [2008] 2010;
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(ii) for a resident or nonresident individual that is an account owner, other than a
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husband and wife who are account owners and file a single return jointly under Title 59,
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Chapter 10, Individual Income Tax Act, [$1,650] $1,710 for each individual beneficiary for the
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taxable year beginning on or after January 1, [2008] 2010, but beginning on or before
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December 31, [2008] 2010; or
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(iii) for a husband and wife who are account owners and file a single return jointly
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under Title 59, Chapter 10, Individual Income Tax Act, [$3,300] $3,420 for each individual
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beneficiary:
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(A) for the taxable year beginning on or after January 1, [2008] 2010, but beginning on
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or before December 31, [2008] 2010; and
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(B) regardless of whether the [Utah Educational Savings Plan Trust] plan has entered
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into:
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(I) a separate account agreement with each spouse; or
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(II) a single account agreement with both spouses jointly.
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(f) (i) For taxable years beginning on or after January 1, [2009] 2011, the [program
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administrator] executive director shall annually increase [or decrease] the maximum amount of
291
a qualified investment described in Subsections (1)(d) and (1)(e)(i) and (ii), by a percentage
292
equal to the [percentage difference between] increase in the consumer price index for the
293
preceding calendar year [and the consumer price index for the calendar year 2007].
294
(ii) After making an increase [or decrease] required by Subsection (1)(f)(i), the
295
[program administrator] executive director shall:
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(A) round the maximum amount of the qualified investments described in Subsections
297
(1)(d) and (1)(e)(i) and (ii) increased [or decreased] under Subsection (1)(f)(i) to the nearest 10
298
dollar increment; and
299
(B) increase [or decrease] the maximum amount of the qualified investment described
300
in Subsection (1)(e)(iii) so that the maximum amount of the qualified investment described in
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Subsection (1)(e)(iii) is equal to the product of:
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(I) the maximum amount of the qualified investment described in Subsection (1)(e)(ii)
303
as rounded under Subsection (1)(f)(ii)(A); and
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(II) two.
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(iii) For purposes of Subsections (1)(f)(i) and (ii), the [program administrator]
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executive director shall calculate the consumer price index as provided in Sections 1(f)(4) and
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1(f)(5), Internal Revenue Code.
308
(g) For taxable years beginning on or after January 1, 2011, the executive director shall
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keep the previous year's maximum amount of a qualified investment described in Subsections
310
(1)(d) and (1)(e)(i) and (ii) if the consumer price index for the preceding calendar year
311
decreases.
312
(2) (a) Beneficiaries designated in account agreements must be designated after birth
313
and before age 19 for an account owner to:
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(i) subtract a qualified investment from income under Title 59, Chapter 7, Corporate
315
Franchise and Income Taxes; or
316
(ii) use a qualified investment as the basis for claiming a tax credit in accordance with
317
Section
59-10-1017
.
318
(b) Account owners may designate a beneficiary age 19 or older, but investments for
319
that beneficiary are not eligible to be:
320
(i) subtracted from income under Title 59, Chapter 7, Corporate Franchise and Income
321
Taxes; or
322
(ii) used as the basis for claiming a tax credit in accordance with Section
59-10-1017
.
323
(3) Each account agreement shall state clearly that there are no guarantees regarding
324
moneys in the [Utah Educational Savings Plan Trust] plan as to the return of principal and that
325
losses could occur.
326
(4) Each account agreement shall provide that:
327
(a) a contributor to, or designated beneficiary under, an account agreement may not
328
direct the investment of any contributions or earnings on contributions;
329
(b) any part of the money in any account may not be used as security for a loan; and
330
(c) an account owner may not borrow from the [Utah Educational Savings Plan Trust]
331
plan.
332
(5) The execution of an account agreement by the [trust] plan may not guarantee in any
333
way that higher education costs will be equal to projections and estimates provided by the
334
[Utah Educational Savings Plan Trust] plan or that the beneficiary named in any account
335
agreement will:
336
(a) be admitted to an institution of higher education;
337
(b) if admitted, be determined a resident for tuition purposes by the institution of
338
higher education;
339
(c) be allowed to continue attendance at the institution of higher education following
340
admission; or
341
(d) graduate from the institution of higher education.
342
(6) A beneficiary may be changed as permitted by the rules and regulations of the board
343
upon written request of the account owner prior to the date of admission of any beneficiary
344
under an account agreement by an institution of higher education so long as the substitute
345
beneficiary is eligible for participation.
346
(7) An account agreement may be freely amended throughout the term of the account
347
agreement in order to enable an account owner to increase or decrease the level of
348
participation, change the designation of beneficiaries, and carry out similar matters as
349
authorized by rule.
350
(8) Each account agreement shall provide that:
351
(a) the account agreement may be canceled upon the terms and conditions, and upon
352
payment of the fees and costs set forth and contained in the board's rules and regulations; and
353
(b) the [program administrator] executive director may amend the agreement
354
unilaterally and retroactively, if necessary, to maintain the [Utah Educational Savings Plan
355
Trust] plan as a qualified tuition program under Section 529, Internal Revenue Code.
356
Section 8.
Section
53B-8a-107
is amended to read:
357
53B-8a-107. Program, administrative, and endowment funds -- Investment and
358
payments from funds.
359
(1) The [board] plan shall segregate moneys received by the [Utah Educational Savings
360
Plan Trust] plan into three funds, the program fund, the administrative fund, and the
361
endowment fund.
362
(2) Transfers may be made from the program fund to the administrative fund to pay
363
operating costs:
364
(a) associated with administering the [Utah Educational Savings Plan Trust] plan and
365
as required under Sections
53B-8a-103
through
53B-8a-105
; and
366
(b) as included in the budget approved by the board [of directors of the Utah
367
Educational Savings Plan Trust].
368
(3) (a) All moneys paid by account owners in connection with account agreements
369
shall be deposited as received into separate accounts within the program fund which shall be
370
[promptly] invested and accounted for separately.
371
(b) Moneys accrued by account owners in the program fund [of the Utah Educational
372
Savings Plan Trust] may be used for:
373
(i) payments to any institution of higher education;
374
(ii) payments to the account owner or beneficiary;
375
(iii) payments to another 529 plan; or
376
(iv) other expenditures or transfers made in accordance with the account agreement.
377
(4) (a) All moneys received by the [Utah Educational Savings Plan Trust] plan from
378
the proceeds of gifts and other endowments for the purposes of the [Utah Educational Savings
379
Plan Trust] plan shall be:
380
(i) deposited, according to the nature of the donation, as received into the endowment
381
fund[, which shall be promptly] or the administrative fund; and
382
(ii) invested and accounted for separately.
383
(b) Any gifts, grants, or donations made by any governmental unit or any person, firm,
384
partnership, or corporation to the [Utah Educational Savings Plan Trust] plan for deposit to the
385
endowment fund is a grant, gift, or donation to the state for the accomplishment of a valid
386
public eleemosynary, charitable, and educational purpose and is not included in the income of
387
the donor for Utah tax purposes.
388
(c) The endowment fund or the administrative fund may be used to enhance the savings
389
of low income account owners investing in the [Utah Educational Savings Plan Trust] plan, for
390
scholarships, or for other college savings incentive programs as approved by the board.
391
(d) Transfers may be made from the endowment fund to the administrative fund upon
392
approval by the board.
393
(e) Endowment fund earnings not accruing to a beneficiary under an account agreement
394
or not transferred to the administrative fund shall be reinvested in the endowment fund.
395
Section 9.
Section
53B-8a-108
is amended to read:
396
53B-8a-108. Cancellation of agreements.
397
(1) Any account owner may cancel an account agreement at will.
398
(2) If an account agreement is cancelled by the account owner, the current account
399
balance shall be disbursed to the account owner less:
400
(a) an administrative refund fee, which may be charged by the [Utah Educational
401
Savings Plan Trust] plan, except as provided in Subsection (3); and
402
(b) any penalty or tax required to be withheld by the Internal Revenue Code.
403
(3) An administration refund fee may not be levied by the [Utah Educational Savings
404
Plan Trust] plan if the account agreement is cancelled due to:
405
(a) the death of the beneficiary; or
406
(b) the permanent disability or mental incapacity of the beneficiary.
407
Section 10.
Section
53B-8a-109
is amended to read:
408
53B-8a-109. Repayment and ownership of funds in the account -- Transfer of
409
ownership rights.
410
(1) (a) The account owner retains ownership of funds in the account until:
411
(i) funds are used to pay higher education costs for the beneficiary;
412
(ii) funds are otherwise disbursed;
413
(iii) funds are transferred for administrative costs; or
414
(iv) the account is closed.
415
(b) Funds in the account shall be considered to be held in trust for the benefit of the
416
beneficiary.
417
(2) Any amounts that may be paid pursuant to the [Utah Educational Savings Plan
418
Trust] plan that are not listed in this section are owned by the [Utah Educational Savings Plan
419
Trust] plan.
420
(3) (a) An account owner may transfer ownership rights to another eligible person.
421
(b) The transfer shall be affected and the property distributed in accordance with
422
administrative regulations promulgated by the board or the terms of the account agreement.
423
Section 11.
Section
53B-8a-110
is amended to read:
424
53B-8a-110. Effect of payments on determination of need and eligibility for
425
student aid.
426
No student loan program, student grant program, or other program administered by any
427
agency of the state, except as may be otherwise provided by federal law or the provisions of
428
any specific grant applicable to that law, shall take into account and consider amounts available
429
for the payment of higher education costs pursuant to the [Utah Educational Savings Plan
430
Trust] plan in determining need and eligibility for student aid.
431
Section 12.
Section
53B-8a-111
is amended to read:
432
53B-8a-111. Annual audit of financial statements -- Information to governor and
433
Legislature.
434
(1) The financial statements of the [Utah Educational Savings Plan Trust] plan shall be
435
audited annually by the state auditor or the state auditor's designee and reported in accordance
436
with generally accepted accounting principles.
437
(2) The [board] plan shall submit to the governor and the Legislature:
438
(a) upon request, any studies or evaluations of the [Utah Educational Savings Plan
439
Trust] plan;
440
(b) upon request, a summary of the benefits provided by the [Utah Educational Savings
441
Plan Trust] plan including the number of participants and beneficiaries in the [Utah
442
Educational Savings Plan Trust] plan; and
443
(c) upon request, any other information which is relevant in order to make a full, fair,
444
and effective disclosure of the operations of the [Utah Educational Savings Plan Trust] plan.
445
Section 13.
Section
53B-8a-112
is amended to read:
446
53B-8a-112. Tax considerations.
447
(1) For tax purposes the property of the [Utah Educational Savings Plan Trust] plan
448
and its income are governed by Section
59-10-201
.
449
(2) The tax commission, in consultation with the board and the plan, may adopt rules
450
necessary to monitor and implement the tax provisions referred to in Subsection (1) as related
451
to the property of the [Utah Educational Savings Plan Trust] plan and its income.
452
Section 14.
Section
53B-8a-113
is amended to read:
453
53B-8a-113. Property rights to plan assets.
454
(1) The assets of the [Utah Educational Savings Plan Trust] plan, including the
455
program fund and the endowment fund, shall at all times be preserved, invested, and expended
456
solely and only for the purposes of the [Utah Educational Savings Plan Trust] plan and shall be
457
held in trust for the account owners and beneficiaries.
458
(2) No property rights in the [Utah Educational Savings Plan Trust] plan shall exist in
459
favor of the state.
460
(3) The assets may not be transferred or used by the state for any purposes other than
461
the purposes of the [Utah Educational Savings Plan Trust] plan.
462
Section 15.
Section
59-1-403
is amended to read:
463
59-1-403. Confidentiality -- Exceptions -- Penalty -- Application to property tax.
464
(1) (a) Any of the following may not divulge or make known in any manner any
465
information gained by that person from any return filed with the commission:
466
(i) a tax commissioner;
467
(ii) an agent, clerk, or other officer or employee of the commission; or
468
(iii) a representative, agent, clerk, or other officer or employee of any county, city, or
469
town.
470
(b) An official charged with the custody of a return filed with the commission is not
471
required to produce the return or evidence of anything contained in the return in any action or
472
proceeding in any court, except:
473
(i) in accordance with judicial order;
474
(ii) on behalf of the commission in any action or proceeding under:
475
(A) this title; or
476
(B) other law under which persons are required to file returns with the commission;
477
(iii) on behalf of the commission in any action or proceeding to which the commission
478
is a party; or
479
(iv) on behalf of any party to any action or proceeding under this title if the report or
480
facts shown by the return are directly involved in the action or proceeding.
481
(c) Notwithstanding Subsection (1)(b), a court may require the production of, and may
482
admit in evidence, any portion of a return or of the facts shown by the return, as are specifically
483
pertinent to the action or proceeding.
484
(2) This section does not prohibit:
485
(a) a person or that person's duly authorized representative from receiving a copy of
486
any return or report filed in connection with that person's own tax;
487
(b) the publication of statistics as long as the statistics are classified to prevent the
488
identification of particular reports or returns; and
489
(c) the inspection by the attorney general or other legal representative of the state of the
490
report or return of any taxpayer:
491
(i) who brings action to set aside or review a tax based on the report or return;
492
(ii) against whom an action or proceeding is contemplated or has been instituted under
493
this title; or
494
(iii) against whom the state has an unsatisfied money judgment.
495
(3) (a) Notwithstanding Subsection (1) and for purposes of administration, the
496
commission may by rule, made in accordance with Title 63G, Chapter 3, Utah Administrative
497
Rulemaking Act, provide for a reciprocal exchange of information with:
498
(i) the United States Internal Revenue Service; or
499
(ii) the revenue service of any other state.
500
(b) Notwithstanding Subsection (1) and for all taxes except individual income tax and
501
corporate franchise tax, the commission may by rule, made in accordance with Title 63G,
502
Chapter 3, Utah Administrative Rulemaking Act, share information gathered from returns and
503
other written statements with the federal government, any other state, any of the political
504
subdivisions of another state, or any political subdivision of this state, except as limited by
505
Sections
59-12-209
and
59-12-210
, if the political subdivision, other state, or the federal
506
government grant substantially similar privileges to this state.
507
(c) Notwithstanding Subsection (1) and for all taxes except individual income tax and
508
corporate franchise tax, the commission may by rule, in accordance with Title 63G, Chapter 3,
509
Utah Administrative Rulemaking Act, provide for the issuance of information concerning the
510
identity and other information of taxpayers who have failed to file tax returns or to pay any tax
511
due.
512
(d) Notwithstanding Subsection (1), the commission shall provide to the Solid and
513
Hazardous Waste Control Board executive secretary, as defined in Section
19-6-102
, as
514
requested by the executive secretary, any records, returns, or other information filed with the
515
commission under Chapter 13, Motor and Special Fuel Tax Act, or Section
19-6-410.5
516
regarding the environmental assurance program participation fee.
517
(e) Notwithstanding Subsection (1), at the request of any person the commission shall
518
provide that person sales and purchase volume data reported to the commission on a report,
519
return, or other information filed with the commission under:
520
(i) Chapter 13, Part 2, Motor Fuel; or
521
(ii) Chapter 13, Part 4, Aviation Fuel.
522
(f) Notwithstanding Subsection (1), upon request from a tobacco product manufacturer,
523
as defined in Section
59-22-202
, the commission shall report to the manufacturer:
524
(i) the quantity of cigarettes, as defined in Section
59-22-202
, produced by the
525
manufacturer and reported to the commission for the previous calendar year under Section
526
59-14-407
; and
527
(ii) the quantity of cigarettes, as defined in Section
59-22-202
, produced by the
528
manufacturer for which a tax refund was granted during the previous calendar year under
529
Section
59-14-401
and reported to the commission under Subsection
59-14-401
(1)(a)(v).
530
(g) Notwithstanding Subsection (1), the commission shall notify manufacturers,
531
distributors, wholesalers, and retail dealers of a tobacco product manufacturer that is prohibited
532
from selling cigarettes to consumers within the state under Subsection
59-14-210
(2).
533
(h) Notwithstanding Subsection (1), the commission may:
534
(i) provide to the Division of Consumer Protection within the Department of
535
Commerce and the attorney general data:
536
(A) reported to the commission under Section
59-14-212
; or
537
(B) related to a violation under Section
59-14-211
; and
538
(ii) upon request provide to any person data reported to the commission under
539
Subsections
59-14-212
(1)(a) through (c) and Subsection
59-14-212
(1)(g).
540
(i) Notwithstanding Subsection (1), the commission shall, at the request of a committee
541
of the Legislature, Office of the Legislative Fiscal Analyst, or Governor's Office of Planning
542
and Budget, provide to the committee or office the total amount of revenues collected by the
543
commission under Chapter 24, Radioactive Waste Facility Tax Act, for the time period
544
specified by the committee or office.
545
(j) Notwithstanding Subsection (1), the commission shall make the directory required
546
by Section
59-14-603
available for public inspection.
547
(k) Notwithstanding Subsection (1), the commission may share information with
548
federal, state, or local agencies as provided in Subsection
59-14-606
(3).
549
(l) (i) Notwithstanding Subsection (1), the commission shall provide the Office of
550
Recovery Services within the Department of Human Services any relevant information
551
obtained from a return filed under Chapter 10, Individual Income Tax Act, regarding a taxpayer
552
who has become obligated to the Office of Recovery Services.
553
(ii) The information described in Subsection (3)(l)(i) may be provided by the Office of
554
Recovery Services to any other state's child support collection agency involved in enforcing
555
that support obligation.
556
(m) (i) Notwithstanding Subsection (1), upon request from the state court
557
administrator, the commission shall provide to the state court administrator, the name, address,
558
telephone number, county of residence, and Social Security number on resident returns filed
559
under Chapter 10, Individual Income Tax Act.
560
(ii) The state court administrator may use the information described in Subsection
561
(3)(m)(i) only as a source list for the master jury list described in Section
78B-1-106
.
562
(n) Notwithstanding Subsection (1), the commission shall at the request of a
563
committee, commission, or task force of the Legislature provide to the committee, commission,
564
or task force of the Legislature any information relating to a tax imposed under Chapter 9,
565
Taxation of Admitted Insurers, relating to the study required by Section
59-9-101
.
566
(o) (i) As used in this Subsection (3)(o), "office" means the:
567
(A) Office of the Legislative Fiscal Analyst; or
568
(B) Office of Legislative Research and General Counsel.
569
(ii) Notwithstanding Subsection (1) and except as provided in Subsection (3)(o)(iii),
570
the commission shall at the request of an office provide to the office all information:
571
(A) gained by the commission; and
572
(B) required to be attached to or included in returns filed with the commission.
573
(iii) (A) An office may not request and the commission may not provide to an office a
574
person's:
575
(I) address;
576
(II) name;
577
(III) Social Security number; or
578
(IV) taxpayer identification number.
579
(B) The commission shall in all instances protect the privacy of a person as required by
580
Subsection (3)(o)(iii)(A).
581
(iv) An office may provide information received from the commission in accordance
582
with this Subsection (3)(o) only:
583
(A) as:
584
(I) a fiscal estimate;
585
(II) fiscal note information; or
586
(III) statistical information; and
587
(B) if the information is classified to prevent the identification of a particular return.
588
(v) (A) A person may not request information from an office under Title 63G, Chapter
589
2, Government Records Access and Management Act, or this section, if that office received the
590
information from the commission in accordance with this Subsection (3)(o).
591
(B) An office may not provide to a person that requests information in accordance with
592
Subsection (3)(o)(v)(A) any information other than the information the office provides in
593
accordance with Subsection (3)(o)(iv).
594
(p) Notwithstanding Subsection (1), the commission may provide to the governing
595
board of the agreement or a taxing official of another state, the District of Columbia, the United
596
States, or a territory of the United States:
597
(i) the following relating to an agreement sales and use tax:
598
(A) information contained in a return filed with the commission;
599
(B) information contained in a report filed with the commission;
600
(C) a schedule related to Subsection (3)(p)(i)(A) or (B); or
601
(D) a document filed with the commission; or
602
(ii) a report of an audit or investigation made with respect to an agreement sales and
603
use tax.
604
(q) Notwithstanding Subsection (1), the commission may provide information
605
concerning a taxpayer's state income tax return or state income tax withholding information to
606
the Driver License Division if the Driver License Division:
607
(i) requests the information; and
608
(ii) provides the commission with a signed release form from the taxpayer allowing the
609
Driver License Division access to the information.
610
(r) Notwithstanding Subsection (1), the commission shall provide to the Utah State 911
611
Committee the information requested by the Utah State 911 Committee under Subsection
612
53-10-602
(3).
613
(s) Notwithstanding Subsection (1), the commission may provide to the Utah
614
Educational Savings Plan [Trust] information related to a resident or nonresident individual's
615
contribution to a Utah Educational Savings Plan account as designated on the resident or
616
nonresident's individual income tax return under Section
59-10-1313
.
617
(4) (a) Reports and returns shall be preserved for at least three years.
618
(b) After the three-year period provided in Subsection (4)(a) the commission may
619
destroy a report or return.
620
(5) (a) Any person who violates this section is guilty of a class A misdemeanor.
621
(b) If the person described in Subsection (5)(a) is an officer or employee of the state,
622
the person shall be dismissed from office and be disqualified from holding public office in this
623
state for a period of five years thereafter.
624
(c) Notwithstanding Subsection (5)(a) or (b), an office that requests information in
625
accordance with Subsection (3)(o)(iii) or a person that requests information in accordance with
626
Subsection (3)(o)(v):
627
(i) is not guilty of a class A misdemeanor; and
628
(ii) is not subject to:
629
(A) dismissal from office in accordance with Subsection (5)(b); or
630
(B) disqualification from holding public office in accordance with Subsection (5)(b).
631
(6) Except as provided in Section
59-1-404
, this part does not apply to the property tax.
632
Section 16.
Section
59-7-105
is amended to read:
633
59-7-105. Additions to unadjusted income.
634
In computing adjusted income the following amounts shall be added to unadjusted
635
income:
636
(1) interest from bonds, notes, and other evidences of indebtedness issued by any state
637
of the United States, including any agency and instrumentality of a state of the United States;
638
(2) the amount of any deduction taken on a corporation's federal return for taxes paid
639
by a corporation:
640
(a) to Utah for taxes imposed by this chapter; and
641
(b) to another state of the United States, a foreign country, a United States possession,
642
or the Commonwealth of Puerto Rico for taxes imposed for the privilege of doing business, or
643
exercising its corporate franchise, including income, franchise, corporate stock and business
644
and occupation taxes;
645
(3) the safe harbor lease adjustment required under Subsections
59-7-111
(1)(a) and
646
(2)(a);
647
(4) capital losses that have been deducted on a Utah corporate return in previous years;
648
(5) any deduction on the federal return that has been previously deducted on the Utah
649
return;
650
(6) the amount of contributions claimed as a tax credit pursuant to Section
59-7-602
;
651
(7) the amount of the deduction taken pursuant to Section
59-7-603
for sophisticated
652
technological equipment;
653
(8) charitable contributions, to the extent deducted on the federal return when
654
determining federal taxable income;
655
(9) the amount of gain or loss determined under Section
59-7-114
relating to a target
656
corporation under Section 338, Internal Revenue Code, unless such gain or loss has already
657
been included in the unadjusted income of the target corporation;
658
(10) the amount of gain or loss determined under Section
59-7-115
relating to
659
corporations treated for federal purposes as having disposed of its assets under Section 336(e),
660
Internal Revenue Code, unless such gain or loss has already been included in the unadjusted
661
income of the target corporation;
662
(11) adjustments to gains, losses, depreciation expense, amortization expense, and
663
similar items due to a difference between basis for federal purposes and basis as computed
664
under Section
59-7-107
;
665
(12) the amount withdrawn under Title 53B, Chapter 8a, [Higher Education Savings
666
Incentive Program] Utah Educational Savings Plan, from the account of a corporation that is an
667
account owner as defined in Section
53B-8a-102
, for the taxable year for which the amount is
668
withdrawn, if that amount withdrawn from the account of the corporation that is the account
669
owner:
670
(a) is not expended for:
671
(i) higher education costs as defined in Section
53B-8a-102
; [and] or
672
(ii) a payment or distribution that qualifies as an exception to the additional tax for
673
distributions not used for educational expenses provided in Sections 529(c) and 530(d),
674
Internal Revenue Code; and
675
(b) is subtracted by the corporation:
676
(i) that is the account owner; and
677
(ii) in accordance with Subsection
59-7-106
(18); and
678
(13) the amount of the deduction for dividends paid, as defined in Section 561, Internal
679
Revenue Code, that is allowed under Section 857(b)(2)(B), Internal Revenue Code, in
680
computing the taxable income of a captive real estate investment trust, if that captive real estate
681
investment trust is subject to federal income taxation.
682
Section 17.
Section
59-7-106
is amended to read:
683
59-7-106. Subtractions from unadjusted income.
684
In computing adjusted income the following amounts shall be subtracted from
685
unadjusted income:
686
(1) the foreign dividend gross-up included in gross income for federal income tax
687
purposes under Section 78, Internal Revenue Code;
688
(2) the net capital loss, as defined for federal purposes, if the taxpayer elects to deduct
689
the loss on the current Utah return. The deduction shall be made by claiming the deduction on
690
the current Utah return which shall be filed by the due date of the return, including extensions.
691
For the purposes of this Subsection (2) all capital losses in a given year must be:
692
(a) deducted in the year incurred; or
693
(b) carried forward as provided in Sections 1212(a)(1)(B) and (C), Internal Revenue
694
Code;
695
(3) the decrease in salary expense deduction for federal income tax purposes due to
696
claiming the federal jobs credit under Section 51, Internal Revenue Code;
697
(4) the decrease in qualified research and basic research expense deduction for federal
698
income tax purposes due to claiming the federal research and development credit under Section
699
41, Internal Revenue Code;
700
(5) the decrease in qualified clinical testing expense deduction for federal income tax
701
purposes due to claiming the federal orphan drug credit under Section 28, Internal Revenue
702
Code;
703
(6) any decrease in any expense deduction for federal income tax purposes due to
704
claiming any other federal credit;
705
(7) the safe harbor lease adjustment required under Subsections
59-7-111
(1)(b) and
706
(2)(b);
707
(8) any income on the federal corporate return that has been previously taxed by Utah;
708
(9) amounts included in federal taxable income that are due to refunds of taxes
709
imposed for the privilege of doing business, or exercising a corporate franchise, including
710
income, franchise, corporate stock and business and occupation taxes paid by the corporation to
711
Utah, another state of the United States, a foreign country, a United States possession, or the
712
Commonwealth of Puerto Rico to the extent that the taxes were added to unadjusted income
713
under Section
59-7-105
;
714
(10) charitable contributions, to the extent allowed as a subtraction under Section
715
59-7-109
;
716
(11) (a) 50% of the dividends deemed received or received from subsidiaries which are
717
members of the unitary group and are organized or incorporated outside of the United States
718
unless such subsidiaries are included in a combined report under Section
59-7-402
or
59-7-403
.
719
In arriving at the amount of the dividend exclusion, the taxpayer shall first deduct from the
720
dividends deemed received or received, the expense directly attributable to those dividends.
721
Interest expense attributable to excluded dividends shall be determined by multiplying interest
722
expense by a fraction, the numerator of which is the taxpayer's average investment in such
723
dividend paying subsidiaries, and the denominator of which is the taxpayer's average total
724
investment in assets;
725
(b) in determining income apportionable to this state, a portion of the factors of a
726
foreign subsidiary whose dividends are partially excluded under Subsection (11)(a) shall be
727
included in the combined report factors. The portion to be included shall be determined by
728
multiplying each factor of the foreign subsidiary by a fraction, but not to exceed 100%, the
729
numerator of which is the amount of the dividend paid by the foreign subsidiary which is
730
included in adjusted income, and the denominator of which is the current year earnings and
731
profits of the foreign subsidiary as determined under the Internal Revenue Code;
732
(12) (a) 50% of the adjusted income of a foreign operating company unless the
733
taxpayer has elected to file a worldwide combined report as provided in Section
59-7-403
. For
734
purposes of this Subsection (12), when calculating the adjusted income of a foreign operating
735
company, a foreign operating company may not deduct the subtractions allowable under this
736
Subsection (12) and Subsection (11);
737
(b) in determining income apportionable to this state, the factors for a foreign operating
738
company shall be included in the combined report factors in the same percentage its adjusted
739
income is included in the combined adjusted income;
740
(13) the amount of gain or loss which is included in unadjusted income but not
741
recognized for federal purposes on stock sold or exchanged by a member of a selling
742
consolidated group as defined in Section 338, Internal Revenue Code, if an election has been
743
made pursuant to Section 338(h)(10), Internal Revenue Code;
744
(14) the amount of gain or loss which is included in unadjusted income but not
745
recognized for federal purposes on stock sold, exchanged, or distributed by a corporation
746
pursuant to Section 336(e), Internal Revenue Code, if an election under Section 336(e), Internal
747
Revenue Code, has been made for federal purposes;
748
(15) (a) adjustments to gains, losses, depreciation expense, amortization expense, and
749
similar items due to a difference between basis for federal purposes and basis as computed
750
under Section
59-7-107
; and
751
(b) if there has been a reduction in federal basis for a federal tax credit where there is
752
no corresponding Utah tax credit, the amount of the reduction in basis shall be allowed as an
753
expense in the year of the federal credit;
754
(16) any interest expense not deducted on the federal corporate return under Section
755
265(b) or 291(e), Internal Revenue Code;
756
(17) 100% of the dividends received from subsidiaries which are insurance companies
757
exempt from this chapter under Subsection
59-7-102
(1)(c) and are under common ownership;
758
(18) subject to Subsection
59-7-105
(12), the amount of a qualified investment as
759
defined in Section
53B-8a-102
that:
760
(a) a corporation that is an account owner as defined in Section
53B-8a-102
makes
761
during the taxable year;
762
(b) the corporation described in Subsection (18)(a) does not deduct on a federal
763
corporation income tax return; and
764
(c) does not exceed the maximum amount of the qualified investment that may be
765
subtracted from unadjusted income for a taxable year in accordance with [Subsections]
766
Subsection
53B-8a-106
(1)[(d) and (f)]; and
767
(19) for purposes of income included in a combined report under Part 4, Combined
768
Reporting, the entire amount of the dividends a member of a unitary group receives or is
769
considered to receive from a captive real estate investment trust.
770
Section 18.
Section
59-10-114
is amended to read:
771
59-10-114. Additions to and subtractions from adjusted gross income of an
772
individual.
773
(1) There shall be added to adjusted gross income of a resident or nonresident
774
individual:
775
(a) a lump sum distribution that the taxpayer does not include in adjusted gross income
776
on the taxpayer's federal individual income tax return for the taxable year;
777
(b) the amount of a child's income calculated under Subsection (4) that:
778
(i) a parent elects to report on the parent's federal individual income tax return for the
779
taxable year; and
780
(ii) the parent does not include in adjusted gross income on the parent's federal
781
individual income tax return for the taxable year;
782
(c) (i) a withdrawal from a medical care savings account and any penalty imposed for
783
the taxable year if:
784
(A) the resident or nonresident individual does not deduct the amounts on the resident
785
or nonresident individual's federal individual income tax return under Section 220, Internal
786
Revenue Code;
787
(B) the withdrawal is subject to Subsections
31A-32a-105
(1) and (2); and
788
(C) the withdrawal is:
789
(I) subtracted on a return the resident or nonresident individual files under this chapter
790
for a taxable year beginning on or before December 31, 2007; or
791
(II) used as the basis for a resident or nonresident individual to claim a tax credit under
792
Section
59-10-1021
;
793
(ii) a disbursement required to be added to adjusted gross income in accordance with
794
Subsection
31A-32a-105
(3); or
795
(iii) an amount required to be added to adjusted gross income in accordance with
796
Subsection
31A-32a-105
(5)(c);
797
(d) the amount withdrawn under Title 53B, Chapter 8a, [Higher Education Savings
798
Incentive Program] Utah Educational Savings Plan, from the account of a resident or
799
nonresident individual who is an account owner as defined in Section
53B-8a-102
, for the
800
taxable year for which the amount is withdrawn, if that amount withdrawn from the account of
801
the resident or nonresident individual who is the account owner:
802
(i) is not expended for:
803
(A) higher education costs as defined in Section
53B-8a-102
; [and] or
804
(B) a payment or distribution that qualifies as an exception to the additional tax for
805
distributions not used for educational expenses provided in Sections 529(c) and 530(d),
806
Internal Revenue Code; and
807
(ii) is:
808
(A) subtracted by the resident or nonresident individual:
809
(I) who is the account owner; and
810
(II) on the resident or nonresident individual's return filed under this chapter for a
811
taxable year beginning on or before December 31, 2007; or
812
(B) used as the basis for the resident or nonresident individual who is the account
813
owner to claim a tax credit under Section
59-10-1017
;
814
(e) except as provided in Subsection [(6)] (5), for bonds, notes, and other evidences of
815
indebtedness acquired on or after January 1, 2003, the interest from bonds, notes, and other
816
evidences of indebtedness issued by one or more of the following entities:
817
(i) a state other than this state;
818
(ii) the District of Columbia;
819
(iii) a political subdivision of a state other than this state; or
820
(iv) an agency or instrumentality of an entity described in Subsections (1)(e)(i) through
821
(iii);
822
(f) subject to Subsection (2)(c), any distribution received by a resident beneficiary of a
823
resident trust of income that was taxed at the trust level for federal tax purposes, but was
824
subtracted from state taxable income of the trust pursuant to Subsection
59-10-202
(2)(b);
825
(g) any distribution received by a resident beneficiary of a nonresident trust of
826
undistributed distributable net income realized by the trust on or after January 1, 2004, if that
827
undistributed distributable net income was taxed at the trust level for federal tax purposes, but
828
was not taxed at the trust level by any state, with undistributed distributable net income
829
considered to be distributed from the most recently accumulated undistributed distributable net
830
income; and
831
(h) any adoption expense:
832
(i) for which a resident or nonresident individual receives reimbursement from another
833
person; and
834
(ii) to the extent to which the resident or nonresident individual subtracts that adoption
835
expense:
836
(A) on a return filed under this chapter for a taxable year beginning on or before
837
December 31, 2007; or
838
(B) from federal taxable income on a federal individual income tax return.
839
(2) There shall be subtracted from adjusted gross income of a resident or nonresident
840
individual:
841
(a) the difference between:
842
(i) the interest or a dividend on an obligation or security of the United States or an
843
authority, commission, instrumentality, or possession of the United States, to the extent that
844
interest or dividend is:
845
(A) included in adjusted gross income for federal income tax purposes for the taxable
846
year; and
847
(B) exempt from state income taxes under the laws of the United States; and
848
(ii) any interest on indebtedness incurred or continued to purchase or carry the
849
obligation or security described in Subsection (2)(a)(i);
850
(b) for taxable years beginning on or after January 1, 2000, if the conditions of
851
Subsection (3)(a) are met, the amount of income derived by a Ute tribal member:
852
(i) during a time period that the Ute tribal member resides on homesteaded land
853
diminished from the Uintah and Ouray Reservation; and
854
(ii) from a source within the Uintah and Ouray Reservation;
855
(c) an amount received by a resident or nonresident individual or distribution received
856
by a resident or nonresident beneficiary of a resident trust:
857
(i) if that amount or distribution constitutes a refund of taxes imposed by:
858
(A) a state; or
859
(B) the District of Columbia; and
860
(ii) to the extent that amount or distribution is included in adjusted gross income for
861
that taxable year on the federal individual income tax return of the resident or nonresident
862
individual or resident or nonresident beneficiary of a resident trust;
863
(d) the amount of a railroad retirement benefit:
864
(i) paid:
865
(A) in accordance with The Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231 et
866
seq.;
867
(B) to a resident or nonresident individual; and
868
(C) for the taxable year; and
869
(ii) to the extent that railroad retirement benefit is included in adjusted gross income on
870
that resident or nonresident individual's federal individual income tax return for that taxable
871
year; and
872
(e) an amount:
873
(i) received by an enrolled member of an American Indian tribe; and
874
(ii) to the extent that the state is not authorized or permitted to impose a tax under this
875
part on that amount in accordance with:
876
(A) federal law;
877
(B) a treaty; or
878
(C) a final decision issued by a court of competent jurisdiction.
879
(3) (a) A subtraction for an amount described in Subsection (2)(b) is allowed only if:
880
(i) the taxpayer is a Ute tribal member; and
881
(ii) the governor and the Ute tribe execute and maintain an agreement meeting the
882
requirements of this Subsection (3).
883
(b) The agreement described in Subsection (3)(a):
884
(i) may not:
885
(A) authorize the state to impose a tax in addition to a tax imposed under this chapter;
886
(B) provide a subtraction under this section greater than or different from the
887
subtraction described in Subsection (2)(b); or
888
(C) affect the power of the state to establish rates of taxation; and
889
(ii) shall:
890
(A) provide for the implementation of the subtraction described in Subsection (2)(b);
891
(B) be in writing;
892
(C) be signed by:
893
(I) the governor; and
894
(II) the chair of the Business Committee of the Ute tribe;
895
(D) be conditioned on obtaining any approval required by federal law; and
896
(E) state the effective date of the agreement.
897
(c) (i) The governor shall report to the commission by no later than February 1 of each
898
year regarding whether or not an agreement meeting the requirements of this Subsection (3) is
899
in effect.
900
(ii) If an agreement meeting the requirements of this Subsection (3) is terminated, the
901
subtraction permitted under Subsection (2)(b) is not allowed for taxable years beginning on or
902
after the January 1 following the termination of the agreement.
903
(d) For purposes of Subsection (2)(b) and in accordance with Title 63G, Chapter 3,
904
Utah Administrative Rulemaking Act, the commission may make rules:
905
(i) for determining whether income is derived from a source within the Uintah and
906
Ouray Reservation; and
907
(ii) that are substantially similar to how adjusted gross income derived from Utah
908
sources is determined under Section
59-10-117
.
909
(4) (a) For purposes of this Subsection (4), "Form 8814" means:
910
(i) the federal individual income tax Form 8814, Parents' Election To Report Child's
911
Interest and Dividends; or
912
(ii) (A) a form designated by the commission in accordance with Subsection
913
(4)(a)(ii)(B) as being substantially similar to 2000 Form 8814 if for purposes of federal
914
individual income taxes the information contained on 2000 Form 8814 is reported on a form
915
other than Form 8814; and
916
(B) for purposes of Subsection (4)(a)(ii)(A) and in accordance with Title 63G, Chapter
917
3, Utah Administrative Rulemaking Act, the commission may make rules designating a form as
918
being substantially similar to 2000 Form 8814 if for purposes of federal individual income
919
taxes the information contained on 2000 Form 8814 is reported on a form other than Form
920
8814.
921
(b) The amount of a child's income added to adjusted gross income under Subsection
922
(1)(b) is equal to the difference between:
923
(i) the lesser of:
924
(A) the base amount specified on Form 8814; and
925
(B) the sum of the following reported on Form 8814:
926
(I) the child's taxable interest;
927
(II) the child's ordinary dividends; and
928
(III) the child's capital gain distributions; and
929
(ii) the amount not taxed that is specified on Form 8814.
930
(5) Notwithstanding Subsection (1)(e), interest from bonds, notes, and other evidences
931
of indebtedness issued by an entity described in Subsections (1)(e)(i) through (iv) may not be
932
added to adjusted gross income of a resident or nonresident individual if, as annually
933
determined by the commission:
934
(a) for an entity described in Subsection (1)(e)(i) or (ii), the entity and all of the
935
political subdivisions, agencies, or instrumentalities of the entity do not impose a tax based on
936
income on any part of the bonds, notes, and other evidences of indebtedness of this state; or
937
(b) for an entity described in Subsection (1)(e)(iii) or (iv), the following do not impose
938
a tax based on income on any part of the bonds, notes, and other evidences of indebtedness of
939
this state:
940
(i) the entity; or
941
(ii) (A) the state in which the entity is located; or
942
(B) the District of Columbia, if the entity is located within the District of Columbia.
943
Section 19.
Section
59-10-201
is amended to read:
944
59-10-201. Taxation of resident trusts and estates.
945
(1) Except as provided in Subsection (2), a tax determined in accordance with the rate
946
prescribed by Subsection
59-10-104
(2)(b) is imposed for each taxable year on the state taxable
947
income of each resident estate or trust.
948
(2) The following are not subject to a tax imposed by this part:
949
(a) a resident estate or trust that is not required to file a federal income tax return for
950
estates and trusts for the taxable year; or
951
(b) a resident trust taxed as a corporation.
952
(3) A resident estate or trust shall be allowed the credit provided in Section
953
59-10-1003
, relating to an income tax imposed by another state, except that the limitation shall
954
be computed by reference to the taxable income of the estate or trust.
955
(4) The property of the Utah Educational Savings Plan [trust] established in Title 53B,
956
Chapter 8a, [Higher Education Savings Incentive Program] Utah Educational Savings Plan, and
957
its income from operations and investments are exempt from all taxation by the state under this
958
chapter.
959
Section 20.
Section
59-10-202
is amended to read:
960
59-10-202. Additions to and subtractions from unadjusted income of a resident or
961
nonresident estate or trust.
962
(1) There shall be added to unadjusted income of a resident or nonresident estate or
963
trust:
964
(a) a lump sum distribution allowable as a deduction under Section 402(d)(3), Internal
965
Revenue Code, to the extent deductible under Section 62(a)(8), Internal Revenue Code, in
966
determining adjusted gross income;
967
(b) except as provided in Subsection (3), for bonds, notes, and other evidences of
968
indebtedness acquired on or after January 1, 2003, the interest from bonds, notes, and other
969
evidences of indebtedness issued by one or more of the following entities:
970
(i) a state other than this state;
971
(ii) the District of Columbia;
972
(iii) a political subdivision of a state other than this state; or
973
(iv) an agency or instrumentality of an entity described in Subsections (1)(b)(i) through
974
(iii);
975
(c) any portion of federal taxable income for a taxable year if that federal taxable
976
income is derived from stock:
977
(i) in an S corporation; and
978
(ii) that is held by an electing small business trust;
979
(d) the amount withdrawn under Title 53B, Chapter 8a, [Higher Education Savings
980
Incentive Program] Utah Educational Savings Plan, from the account of a resident or
981
nonresident estate or trust that is an account owner as defined in Section
53B-8a-102
, for the
982
taxable year for which the amount is withdrawn, if that amount withdrawn from the account of
983
the resident or nonresident estate or trust that is the account owner:
984
(i) is not expended for:
985
(A) higher education costs as defined in Section
53B-8a-102
; [and] or
986
(B) a payment or distribution that qualifies as an exception to the additional tax for
987
distributions not used for educational expenses provided in Sections 529(c) and 530(d),
988
Internal Revenue Code; and
989
(ii) is:
990
(A) subtracted by the resident or nonresident estate or trust:
991
(I) that is the account owner; and
992
(II) on the resident or nonresident estate's or trust's return filed under this chapter for a
993
taxable year beginning on or before December 31, 2007; or
994
(B) used as the basis for the resident or nonresident estate or trust that is the account
995
owner to claim a tax credit under Section
59-10-1017
; and
996
(e) any fiduciary adjustments required by Section
59-10-210
.
997
(2) There shall be subtracted from unadjusted income of a resident or nonresident
998
estate or trust:
999
(a) the interest or a dividend on obligations or securities of the United States and its
1000
possessions or of any authority, commission, or instrumentality of the United States, to the
1001
extent that interest or dividend is included in gross income for federal income tax purposes for
1002
the taxable year but exempt from state income taxes under the laws of the United States, but
1003
the amount subtracted under this Subsection (2) shall be reduced by any interest on
1004
indebtedness incurred or continued to purchase or carry the obligations or securities described
1005
in this Subsection (2), and by any expenses incurred in the production of interest or dividend
1006
income described in this Subsection (2) to the extent that such expenses, including amortizable
1007
bond premiums, are deductible in determining federal taxable income;
1008
(b) income of an irrevocable resident trust if:
1009
(i) the income would not be treated as state taxable income derived from Utah sources
1010
under Section
59-10-204
if received by a nonresident trust;
1011
(ii) the trust first became a resident trust on or after January 1, 2004;
1012
(iii) no assets of the trust were held, at any time after January 1, 2003, in another
1013
resident irrevocable trust created by the same settlor or the spouse of the same settlor;
1014
(iv) the trustee of the trust is a trust company as defined in Subsection
7-5-1
(1)(d);
1015
(v) the amount subtracted under this Subsection (2)(b) is reduced to the extent the
1016
settlor or any other person is treated as an owner of any portion of the trust under Subtitle A,
1017
Subchapter J, Subpart E of the Internal Revenue Code; and
1018
(vi) the amount subtracted under this Subsection (2)(b) is reduced by any interest on
1019
indebtedness incurred or continued to purchase or carry the assets generating the income
1020
described in this Subsection (2)(b), and by any expenses incurred in the production of income
1021
described in this Subsection (2)(b), to the extent that those expenses, including amortizable
1022
bond premiums, are deductible in determining federal taxable income;
1023
(c) if the conditions of Subsection (4)(a) are met, the amount of income of a resident or
1024
nonresident estate or trust derived from a deceased Ute tribal member:
1025
(i) during a time period that the Ute tribal member resided on homesteaded land
1026
diminished from the Uintah and Ouray Reservation; and
1027
(ii) from a source within the Uintah and Ouray Reservation;
1028
(d) any amount:
1029
(i) received by a resident or nonresident estate or trust;
1030
(ii) that constitutes a refund of taxes imposed by:
1031
(A) a state; or
1032
(B) the District of Columbia; and
1033
(iii) to the extent that amount is included in total income on that resident or nonresident
1034
estate's or trust's federal tax return for estates and trusts for that taxable year;
1035
(e) the amount of a railroad retirement benefit:
1036
(i) paid:
1037
(A) in accordance with The Railroad Retirement Act of 1974, 45 U.S.C. Sec. 231 et
1038
seq.;
1039
(B) to a resident or nonresident estate or trust derived from a deceased resident or
1040
nonresident individual; and
1041
(C) for the taxable year; and
1042
(ii) to the extent that railroad retirement benefit is included in total income on that
1043
resident or nonresident estate's or trust's federal tax return for estates and trusts;
1044
(f) an amount:
1045
(i) received by a resident or nonresident estate or trust if that amount is derived from a
1046
deceased enrolled member of an American Indian tribe; and
1047
(ii) to the extent that the state is not authorized or permitted to impose a tax under this
1048
part on that amount in accordance with:
1049
(A) federal law;
1050
(B) a treaty; or
1051
(C) a final decision issued by a court of competent jurisdiction;
1052
(g) the amount that a qualified nongrantor charitable lead trust deducts under Section
1053
642(c), Internal Revenue Code, as a charitable contribution deduction, as allowed on the
1054
qualified nongrantor charitable lead trust's federal income tax return for estates and trusts for
1055
the taxable year; and
1056
(h) any fiduciary adjustments required by Section
59-10-210
.
1057
(3) Notwithstanding Subsection (1)(b), interest from bonds, notes, and other evidences
1058
of indebtedness issued by an entity described in Subsections (1)(b)(i) through (iv) may not be
1059
added to unadjusted income of a resident or nonresident estate or trust if, as annually
1060
determined by the commission:
1061
(a) for an entity described in Subsection (1)(b)(i) or (ii), the entity and all of the
1062
political subdivisions, agencies, or instrumentalities of the entity do not impose a tax based on
1063
income on any part of the bonds, notes, and other evidences of indebtedness of this state; or
1064
(b) for an entity described in Subsection (1)(b)(iii) or (iv), the following do not impose
1065
a tax based on income on any part of the bonds, notes, and other evidences of indebtedness of
1066
this state:
1067
(i) the entity; or
1068
(ii) (A) the state in which the entity is located; or
1069
(B) the District of Columbia, if the entity is located within the District of Columbia.
1070
(4) (a) A subtraction for an amount described in Subsection (2)(c) is allowed only if:
1071
(i) the income is derived from a deceased Ute tribal member; and
1072
(ii) the governor and the Ute tribe execute and maintain an agreement meeting the
1073
requirements of this Subsection (4).
1074
(b) The agreement described in Subsection (4)(a):
1075
(i) may not:
1076
(A) authorize the state to impose a tax in addition to a tax imposed under this chapter;
1077
(B) provide a subtraction under this section greater than or different from the
1078
subtraction described in Subsection (2)(c); or
1079
(C) affect the power of the state to establish rates of taxation; and
1080
(ii) shall:
1081
(A) provide for the implementation of the subtraction described in Subsection (2)(c);
1082
(B) be in writing;
1083
(C) be signed by:
1084
(I) the governor; and
1085
(II) the chair of the Business Committee of the Ute tribe;
1086
(D) be conditioned on obtaining any approval required by federal law; and
1087
(E) state the effective date of the agreement.
1088
(c) (i) The governor shall report to the commission by no later than February 1 of each
1089
year regarding whether or not an agreement meeting the requirements of this Subsection (4) is
1090
in effect.
1091
(ii) If an agreement meeting the requirements of this Subsection (4) is terminated, the
1092
subtraction permitted under Subsection (2)(c) is not allowed for taxable years beginning on or
1093
after the January 1 following the termination of the agreement.
1094
(d) For purposes of Subsection (2)(c) and in accordance with Title 63G, Chapter 3,
1095
Utah Administrative Rulemaking Act, the commission may make rules:
1096
(i) for determining whether income is derived from a source within the Uintah and
1097
Ouray Reservation; and
1098
(ii) that are substantially similar to how adjusted gross income derived from Utah
1099
sources is determined under Section
59-10-117
.
1100
Section 21.
Section
59-10-1017
is amended to read:
1101
59-10-1017. Utah Educational Savings Plan tax credit.
1102
(1) As used in this section:
1103
(a) "Account owner" is as defined in Section
53B-8a-102
.
1104
(b) "Higher education costs" is as defined in Section
53B-8a-102
.
1105
(c) "Maximum amount of a qualified investment for the taxable year" means, for a
1106
taxable year:
1107
(i) for a claimant, estate, or trust that is an account owner, if that claimant, estate, or
1108
trust is other than husband and wife account owners who file a single return jointly, the
1109
maximum amount of a qualified investment:
1110
(A) listed in Subsection
53B-8a-106
(1)(e)(ii); and
1111
(B) increased or [decreased] kept for that taxable year in accordance with [Subsection]
1112
Subsections
53B-8a-106
(1)(f) and (g); or
1113
(ii) for claimants who are husband and wife account owners who file a single return
1114
jointly, the maximum amount of a qualified investment:
1115
(A) listed in Subsection
53B-8a-106
(1)(e)(iii); and
1116
(B) increased or [decreased] kept for that taxable year in accordance with [Subsection]
1117
Subsections
53B-8a-106
(1)(f) and (g).
1118
(d) "Qualified investment" is as defined in Section
53B-8a-102
.
1119
(2) Except as provided in Section
59-10-1002.2
, a claimant, estate, or trust that is an
1120
account owner may claim a nonrefundable tax credit equal to the product of:
1121
(a) the lesser of:
1122
(i) the amount of a qualified investment the claimant, estate, or trust:
1123
(A) makes during the taxable year; and
1124
(B) does not deduct:
1125
(I) for a claimant, on the claimant's federal individual income tax return; or
1126
(II) for an estate or trust, on the estate's or trust's federal income tax return for estates
1127
and trusts; or
1128
(ii) the maximum amount of a qualified investment for the taxable year if the amount
1129
described in Subsection (2)(a)(i) is greater than the maximum amount of a qualified investment
1130
for the taxable year; and
1131
(b) 5%.
1132
(3) A tax credit under this section may not be carried forward or carried back.
1133
Section 22.
Section
59-10-1313
is amended to read:
1134
59-10-1313. Contribution to a Utah Educational Savings Plan account.
1135
(1) (a) If a resident or nonresident individual is owed an individual income tax refund
1136
for the taxable year, the individual may designate on the resident or nonresident individual's
1137
income tax return a contribution to a Utah Educational Savings Plan account established under
1138
Title 53B, Chapter 8a, [Higher Education Savings Incentive Program] Utah Educational
1139
Savings Plan, in the amount of the entire individual income tax refund.
1140
(b) If a resident or nonresident individual is not owed an individual income tax refund
1141
for the taxable year, the individual may not designate on the resident or nonresident's individual
1142
income tax return a contribution to a Utah Educational Savings Plan account.
1143
(2) The commission shall send the contribution to the Utah Educational Savings Plan
1144
[Trust] along with information requested by the Utah Educational Savings Plan [Trust],
1145
including the taxpayer's name, Social Security number, and address.
1146
(3) (a) If the taxpayer owns a Utah Educational Savings Plan account, the Utah
1147
Educational Savings Plan [Trust] shall deposit the contribution into the account.
1148
(b) If the taxpayer owns more than one Utah Educational Savings Plan account, the
1149
Utah Educational Savings Plan [Trust] shall allocate the contribution among the accounts in
1150
equal amounts.
1151
(c) (i) If the taxpayer does not own a Utah Educational Savings Plan account, the Utah
1152
Educational Savings Plan [Trust] shall send the taxpayer an account agreement.
1153
(ii) If the taxpayer does not sign and return the account agreement by the date specified
1154
by the Utah Educational Savings Plan [Trust], the Utah Educational Savings Plan [Trust] shall
1155
return the contribution to the taxpayer without any interest or earnings.
1156
(4) For the purpose of determining interest on an overpayment or refund under Section
1157
59-1-402
, no interest accrues after the commission sends the contribution to the Utah
1158
Educational Savings Plan [Trust].
1159
Section 23.
Section
63G-2-305
is amended to read:
1160
63G-2-305. Protected records.
1161
The following records are protected if properly classified by a governmental entity:
1162
(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret
1163
has provided the governmental entity with the information specified in Section
63G-2-309
;
1164
(2) commercial information or nonindividual financial information obtained from a
1165
person if:
1166
(a) disclosure of the information could reasonably be expected to result in unfair
1167
competitive injury to the person submitting the information or would impair the ability of the
1168
governmental entity to obtain necessary information in the future;
1169
(b) the person submitting the information has a greater interest in prohibiting access
1170
than the public in obtaining access; and
1171
(c) the person submitting the information has provided the governmental entity with
1172
the information specified in Section
63G-2-309
;
1173
(3) commercial or financial information acquired or prepared by a governmental entity
1174
to the extent that disclosure would lead to financial speculations in currencies, securities, or
1175
commodities that will interfere with a planned transaction by the governmental entity or cause
1176
substantial financial injury to the governmental entity or state economy;
1177
(4) records the disclosure of which could cause commercial injury to, or confer a
1178
competitive advantage upon a potential or actual competitor of, a commercial project entity as
1179
defined in Subsection
11-13-103
(4);
1180
(5) test questions and answers to be used in future license, certification, registration,
1181
employment, or academic examinations;
1182
(6) records the disclosure of which would impair governmental procurement
1183
proceedings or give an unfair advantage to any person proposing to enter into a contract or
1184
agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
1185
Subsection (6) does not restrict the right of a person to have access to, once the contract or
1186
grant has been awarded, a bid, proposal, or application submitted to or by a governmental
1187
entity in response to:
1188
(a) a request for bids;
1189
(b) a request for proposals;
1190
(c) a grant; or
1191
(d) other similar document;
1192
(7) records that would identify real property or the appraisal or estimated value of real
1193
or personal property, including intellectual property, under consideration for public acquisition
1194
before any rights to the property are acquired unless:
1195
(a) public interest in obtaining access to the information outweighs the governmental
1196
entity's need to acquire the property on the best terms possible;
1197
(b) the information has already been disclosed to persons not employed by or under a
1198
duty of confidentiality to the entity;
1199
(c) in the case of records that would identify property, potential sellers of the described
1200
property have already learned of the governmental entity's plans to acquire the property;
1201
(d) in the case of records that would identify the appraisal or estimated value of
1202
property, the potential sellers have already learned of the governmental entity's estimated value
1203
of the property; or
1204
(e) the property under consideration for public acquisition is a single family residence
1205
and the governmental entity seeking to acquire the property has initiated negotiations to acquire
1206
the property as required under Section
78B-6-505
;
1207
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
1208
compensated transaction of real or personal property including intellectual property, which, if
1209
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
1210
of the subject property, unless:
1211
(a) the public interest in access outweighs the interests in restricting access, including
1212
the governmental entity's interest in maximizing the financial benefit of the transaction; or
1213
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
1214
the value of the subject property have already been disclosed to persons not employed by or
1215
under a duty of confidentiality to the entity;
1216
(9) records created or maintained for civil, criminal, or administrative enforcement
1217
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
1218
release of the records:
1219
(a) reasonably could be expected to interfere with investigations undertaken for
1220
enforcement, discipline, licensing, certification, or registration purposes;
1221
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
1222
proceedings;
1223
(c) would create a danger of depriving a person of a right to a fair trial or impartial
1224
hearing;
1225
(d) reasonably could be expected to disclose the identity of a source who is not
1226
generally known outside of government and, in the case of a record compiled in the course of
1227
an investigation, disclose information furnished by a source not generally known outside of
1228
government if disclosure would compromise the source; or
1229
(e) reasonably could be expected to disclose investigative or audit techniques,
1230
procedures, policies, or orders not generally known outside of government if disclosure would
1231
interfere with enforcement or audit efforts;
1232
(10) records the disclosure of which would jeopardize the life or safety of an
1233
individual;
1234
(11) records the disclosure of which would jeopardize the security of governmental
1235
property, governmental programs, or governmental recordkeeping systems from damage, theft,
1236
or other appropriation or use contrary to law or public policy;
1237
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
1238
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
1239
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
1240
(13) records that, if disclosed, would reveal recommendations made to the Board of
1241
Pardons and Parole by an employee of or contractor for the Department of Corrections, the
1242
Board of Pardons and Parole, or the Department of Human Services that are based on the
1243
employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
1244
jurisdiction;
1245
(14) records and audit workpapers that identify audit, collection, and operational
1246
procedures and methods used by the State Tax Commission, if disclosure would interfere with
1247
audits or collections;
1248
(15) records of a governmental audit agency relating to an ongoing or planned audit
1249
until the final audit is released;
1250
(16) records prepared by or on behalf of a governmental entity solely in anticipation of
1251
litigation that are not available under the rules of discovery;
1252
(17) records disclosing an attorney's work product, including the mental impressions or
1253
legal theories of an attorney or other representative of a governmental entity concerning
1254
litigation;
1255
(18) records of communications between a governmental entity and an attorney
1256
representing, retained, or employed by the governmental entity if the communications would be
1257
privileged as provided in Section
78B-1-137
;
1258
(19) (a) (i) personal files of a state legislator, including personal correspondence to or
1259
from a member of the Legislature; and
1260
(ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
1261
legislative action or policy may not be classified as protected under this section; and
1262
(b) (i) an internal communication that is part of the deliberative process in connection
1263
with the preparation of legislation between:
1264
(A) members of a legislative body;
1265
(B) a member of a legislative body and a member of the legislative body's staff; or
1266
(C) members of a legislative body's staff; and
1267
(ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
1268
legislative action or policy may not be classified as protected under this section;
1269
(20) (a) records in the custody or control of the Office of Legislative Research and
1270
General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
1271
legislation or contemplated course of action before the legislator has elected to support the
1272
legislation or course of action, or made the legislation or course of action public; and
1273
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
1274
Office of Legislative Research and General Counsel is a public document unless a legislator
1275
asks that the records requesting the legislation be maintained as protected records until such
1276
time as the legislator elects to make the legislation or course of action public;
1277
(21) research requests from legislators to the Office of Legislative Research and
1278
General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
1279
in response to these requests;
1280
(22) drafts, unless otherwise classified as public;
1281
(23) records concerning a governmental entity's strategy about collective bargaining or
1282
pending litigation;
1283
(24) records of investigations of loss occurrences and analyses of loss occurrences that
1284
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
1285
Uninsured Employers' Fund, or similar divisions in other governmental entities;
1286
(25) records, other than personnel evaluations, that contain a personal recommendation
1287
concerning an individual if disclosure would constitute a clearly unwarranted invasion of
1288
personal privacy, or disclosure is not in the public interest;
1289
(26) records that reveal the location of historic, prehistoric, paleontological, or
1290
biological resources that if known would jeopardize the security of those resources or of
1291
valuable historic, scientific, educational, or cultural information;
1292
(27) records of independent state agencies if the disclosure of the records would
1293
conflict with the fiduciary obligations of the agency;
1294
(28) records of an institution within the state system of higher education defined in
1295
Section
53B-1-102
regarding tenure evaluations, appointments, applications for admissions,
1296
retention decisions, and promotions, which could be properly discussed in a meeting closed in
1297
accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
1298
the final decisions about tenure, appointments, retention, promotions, or those students
1299
admitted, may not be classified as protected under this section;
1300
(29) records of the governor's office, including budget recommendations, legislative
1301
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
1302
policies or contemplated courses of action before the governor has implemented or rejected
1303
those policies or courses of action or made them public;
1304
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
1305
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
1306
recommendations in these areas;
1307
(31) records provided by the United States or by a government entity outside the state
1308
that are given to the governmental entity with a requirement that they be managed as protected
1309
records if the providing entity certifies that the record would not be subject to public disclosure
1310
if retained by it;
1311
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
1312
except as provided in Section
52-4-206
;
1313
(33) records that would reveal the contents of settlement negotiations but not including
1314
final settlements or empirical data to the extent that they are not otherwise exempt from
1315
disclosure;
1316
(34) memoranda prepared by staff and used in the decision-making process by an
1317
administrative law judge, a member of the Board of Pardons and Parole, or a member of any
1318
other body charged by law with performing a quasi-judicial function;
1319
(35) records that would reveal negotiations regarding assistance or incentives offered
1320
by or requested from a governmental entity for the purpose of encouraging a person to expand
1321
or locate a business in Utah, but only if disclosure would result in actual economic harm to the
1322
person or place the governmental entity at a competitive disadvantage, but this section may not
1323
be used to restrict access to a record evidencing a final contract;
1324
(36) materials to which access must be limited for purposes of securing or maintaining
1325
the governmental entity's proprietary protection of intellectual property rights including patents,
1326
copyrights, and trade secrets;
1327
(37) the name of a donor or a prospective donor to a governmental entity, including an
1328
institution within the state system of higher education defined in Section
53B-1-102
, and other
1329
information concerning the donation that could reasonably be expected to reveal the identity of
1330
the donor, provided that:
1331
(a) the donor requests anonymity in writing;
1332
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
1333
classified protected by the governmental entity under this Subsection (37); and
1334
(c) except for an institution within the state system of higher education defined in
1335
Section
53B-1-102
, the governmental unit to which the donation is made is primarily engaged
1336
in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
1337
over the donor, a member of the donor's immediate family, or any entity owned or controlled
1338
by the donor or the donor's immediate family;
1339
(38) accident reports, except as provided in Sections
41-6a-404
,
41-12a-202
, and
1340
73-18-13
;
1341
(39) a notification of workers' compensation insurance coverage described in Section
1342
34A-2-205
;
1343
(40) (a) the following records of an institution within the state system of higher
1344
education defined in Section
53B-1-102
, which have been developed, discovered, disclosed to,
1345
or received by or on behalf of faculty, staff, employees, or students of the institution:
1346
(i) unpublished lecture notes;
1347
(ii) unpublished notes, data, and information:
1348
(A) relating to research; and
1349
(B) of:
1350
(I) the institution within the state system of higher education defined in Section
1351
53B-1-102
; or
1352
(II) a sponsor of sponsored research;
1353
(iii) unpublished manuscripts;
1354
(iv) creative works in process;
1355
(v) scholarly correspondence; and
1356
(vi) confidential information contained in research proposals;
1357
(b) Subsection (40)(a) may not be construed to prohibit disclosure of public
1358
information required pursuant to Subsection
53B-16-302
(2)(a) or (b); and
1359
(c) Subsection (40)(a) may not be construed to affect the ownership of a record;
1360
(41) (a) records in the custody or control of the Office of Legislative Auditor General
1361
that would reveal the name of a particular legislator who requests a legislative audit prior to the
1362
date that audit is completed and made public; and
1363
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
1364
Office of the Legislative Auditor General is a public document unless the legislator asks that
1365
the records in the custody or control of the Office of Legislative Auditor General that would
1366
reveal the name of a particular legislator who requests a legislative audit be maintained as
1367
protected records until the audit is completed and made public;
1368
(42) records that provide detail as to the location of an explosive, including a map or
1369
other document that indicates the location of:
1370
(a) a production facility; or
1371
(b) a magazine;
1372
(43) information:
1373
(a) contained in the statewide database of the Division of Aging and Adult Services
1374
created by Section
62A-3-311.1
; or
1375
(b) received or maintained in relation to the Identity Theft Reporting Information
1376
System (IRIS) established under Section
67-5-22
;
1377
(44) information contained in the Management Information System and Licensing
1378
Information System described in Title 62A, Chapter 4a, Child and Family Services;
1379
(45) information regarding National Guard operations or activities in support of the
1380
National Guard's federal mission;
1381
(46) records provided by any pawn or secondhand business to a law enforcement
1382
agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
1383
Secondhand Merchandise Transaction Information Act;
1384
(47) information regarding food security, risk, and vulnerability assessments performed
1385
by the Department of Agriculture and Food;
1386
(48) except to the extent that the record is exempt from this chapter pursuant to Section
1387
63G-2-106
, records related to an emergency plan or program prepared or maintained by the
1388
Division of Homeland Security the disclosure of which would jeopardize:
1389
(a) the safety of the general public; or
1390
(b) the security of:
1391
(i) governmental property;
1392
(ii) governmental programs; or
1393
(iii) the property of a private person who provides the Division of Homeland Security
1394
information;
1395
(49) records of the Department of Agriculture and Food relating to the National
1396
Animal Identification System or any other program that provides for the identification, tracing,
1397
or control of livestock diseases, including any program established under Title 4, Chapter 24,
1398
Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
1399
Quarantine;
1400
(50) as provided in Section
26-39-501
:
1401
(a) information or records held by the Department of Health related to a complaint
1402
regarding a child care program or residential child care which the department is unable to
1403
substantiate; and
1404
(b) information or records related to a complaint received by the Department of Health
1405
from an anonymous complainant regarding a child care program or residential child care;
1406
(51) unless otherwise classified as public under Section
63G-2-301
and except as
1407
provided under Section
41-1a-116
, an individual's home address, home telephone number, or
1408
personal mobile phone number, if:
1409
(a) the individual is required to provide the information in order to comply with a law,
1410
ordinance, rule, or order of a government entity; and
1411
(b) the subject of the record has a reasonable expectation that this information will be
1412
kept confidential due to:
1413
(i) the nature of the law, ordinance, rule, or order; and
1414
(ii) the individual complying with the law, ordinance, rule, or order;
1415
(52) the name, home address, work addresses, and telephone numbers of an individual
1416
that is engaged in, or that provides goods or services for, medical or scientific research that is:
1417
(a) conducted within the state system of higher education, as defined in Section
1418
53B-1-102
; and
1419
(b) conducted using animals;
1420
(53) an initial proposal under Title 63M, Chapter 1, Part 26, Government Procurement
1421
Private Proposal Program, to the extent not made public by rules made under that chapter;
1422
(54) information collected and a report prepared by the Judicial Performance
1423
Evaluation Commission concerning a judge, unless Section
20A-7-702
or Title 78A, Chapter
1424
12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
1425
the information or report;
1426
(55) (a) records of the Utah Educational Savings Plan [Trust] created under Section
1427
53B-8a-103
if the disclosure of the records would conflict with its fiduciary obligations;
1428
(b) proposals submitted to the Utah Educational Savings Plan [Trust]; and
1429
(c) contracts entered into by the Utah Educational Savings Plan [Trust] and the related
1430
payments;
1431
(56) records contained in the Management Information System created in Section
1432
62A-4a-1003
;
1433
(57) records provided or received by the Public Lands Policy Coordinating Office in
1434
furtherance of any contract or other agreement made in accordance with Section
63J-4-603
; and
1435
(58) information requested by and provided to the Utah State 911 Committee under
1436
Section
53-10-602
.
1437
Section 24. Effective date.
1438
If approved by two-thirds of all the members elected to each house, this bill takes effect
1439
upon approval by the governor, or the day following the constitutional time limit of Utah
1440
Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
1441
the date of veto override.
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