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Indicates Matter Stricken
Indicates New Matter
AS PASSED BY THE SENATE
May 16, 2001
Introduced by Reps. Stille, Townsend, Carnell, Allison, Littlejohn, Sandifer and Walker
S. Printed 5/16/01--S. [SEC 5/18/01 2:40 PM]
Read the first time March 22, 2001.
TO AMEND SECTIONS 59-4-20 AND 59-4-40, BOTH AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS AND FUND ADMINISTRATION FOR PURPOSES OF THE SOUTH CAROLINA TUITION PREPAYMENT PROGRAM ACT, SO AS TO FURTHER DEFINE "TUITION" AND TO PROVIDE THAT THE CONTENTS OF THE REVOLVING FUND, INCLUDING ANY RIGHT OF REFUND OR ANY OTHER RIGHT ACCRUED BY A PERSON IN THE FUND IS EXEMPT FROM LEGAL PROCESS AND IS UNASSIGNABLE.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 59-4-20(10) of the 1976 Code, as amended by Act 410 of 2000, is further amended to read:
"(10) 'Tuition', for purposes of this chapter only, means the
credit-hour charges imposed by a public higher education institution in this State and all mandatory fees required as a condition of enrollment of all students registration or matriculation, credit-hour charges, and mandatory college fees, including athletic or activity, medical or infirmary, and capital improvement fees, imposed by a public higher education institution in this State as a condition of enrollment of all full-time, undergraduate students regardless of class. Tuition does not under any circumstance include the expenses for student housing, meal plans, books, class or lab supplies and equipment, uniforms and laundry, transportation, course-specific fees, or any other fees or charges the program did not consider in the determination of the annual contract pricing structure, regardless of how these fees are characterized by the institution."
SECTION 2. Section 59-4-40 of the 1976 Code, as amended by Act 410 of 2000, is further amended to read:
"Section 59-4-40. (A) The fund is a nonpublic special, revolving fund established and maintained by the State of South Carolina. The fund consists of monies received from contributors, other monies acquired from governmental and private sources, and proceeds from the investments of the fund. The fund may expend funds for the purposes of this chapter only and may not be considered public funds. There must be a separate accounting for each designated beneficiary.
(B) The fund must be invested as directed by the treasurer. However, earnings in the fund or a portion of the fund may not be used as security for a loan. An attempt to use the fund, a contract, or a portion of either as security for a loan is void. The fund may receive amounts transferred from a Uniform Gift to Minors Act, Uniform Trust to Minors Act, or other account established for the benefit of a minor provided that the beneficiary of such an account is identified as the legal owner of the South Carolina Tuition Prepayment Program contract upon attaining majority age. The fund, contributions to the fund, and the right of a person to a refund of contributions or any other right accrued or accruing to any person under the provisions of this chapter are exempt from attachment, garnishment, levy, and sale under any means or final process issued by any court or bankruptcy proceeding and are unassignable except as specifically otherwise provided in this chapter.
The fund may be invested in a manner authorized by law. The funds may be invested and reinvested in any of the following:
(1) securities authorized pursuant to Article 7, Chapter 9, Title 11;
(2) equity securities of a corporation that is registered on a national securities exchange, as provided in the Securities Exchange Act, 1934, or a successor act, or quoted through the National Association of Securities Dealers Automatic Quotations System, or a similar service; and
(3) securities issued by an investment company registered under the Investment Company Act of 1940, or a successor act.
(C) The custody and management of the fund
is must be directed by the treasurer and invested in accordance with the written investment policies approved by the Treasurer. The earnings from fund investments become a part of the fund and may be expended for the purposes of this chapter only."
SECTION 3. Title 59 of the 1976 Code is amended by adding:
Section 59-2-10. This chapter may be cited as the 'South Carolina Tuition Savings Program Act' (SCTSP).
Section 59-2-20. The General Assembly finds and declares as follows:
(1) Education costs at institutions of higher learning are difficult for many to afford and difficult to predict. As a result, the ability of individuals and families to plan for future educational expenses has been adversely affected.
(2) It is in the best interest of the citizens of this State to foster higher education in order to provide well-educated citizens.
(3) It is in the best interest of the citizens of this State to encourage state residents to enroll in institutions of higher learning.
(4) Providing a mechanism to help assure the higher education of the citizens of this State is necessary and desirable for the public health, safety, and welfare.
(5) The purposes of this chapter are to:
(a) provide wide and affordable access to the public institutions of higher learning for the residents of this State;
(b) encourage attendance at institutions of higher learning and help individuals plan for educational expenses;
(c) provide a program of savings trust agreements to apply distributions toward qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code, as amended, or other applicable federal law;
(d) provide for the creation of a trust fund, as an instrumentality of the State of South Carolina, to assist qualified students in financing costs of attending institutions of higher education;
(e) encourage timely financial planning for higher education by the creation of savings trust accounts;
(f) provide a choice of programs to persons who determine that the overall educational needs of their families are best suited to a prepaid tuition contract under the South Carolina Tuition Prepayment Program, or a savings trust agreement under this chapter, or both;
(g) provide a savings program for those who wish to save to meet postsecondary educational needs beyond the traditional baccalaureate curriculum.
Section 59-2-30. The following terms have the meanings below unless the context clearly indicates otherwise:
(1) 'SCTSP Trust Fund' means the special fund designated as the 'South Carolina College Investment Trust Fund' and administered by the Office of State Treasurer.
(2) 'Account owner' means a person, corporation, trust, charitable organization, or other such entity who contributes to or invests money in a savings trust account under SCTSP established pursuant to this chapter on behalf of a beneficiary and who is listed as the owner of the savings trust account.
(3) 'Beneficiary' means a beneficiary of a savings trust agreement who meets the requirements of Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law, as well as any regulations established by the Office of State Treasurer.
(4) 'Contributor' means any person, corporation, trust, charitable organization, or other such entity who contributes money or makes a payment to a savings trust account established pursuant to this chapter on behalf of a beneficiary.
(5) 'Director' means the head of the South Carolina Tuition Prepayment Program and SCTSP who is appointed and supervised by the State Treasurer.
(6) 'Institution of higher learning' means any institution of higher learning which is an eligible education institution as defined in Section 529 of the Internal Revenue Code of 1986, as amended, or any other applicable federal law.
(7) 'Tuition' means the quarter, semester, or term charges and all required fees imposed by an institution of higher learning as a condition of enrollment by all students.
(8) 'Savings trust account' means an account established by an account owner pursuant to this chapter on behalf of a beneficiary in order to apply distributions from the account toward qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law.
(9) 'Savings trust agreement' means the agreement entered into between the Office of State Treasurer and the account owner establishing a savings trust account.
(10) 'State Treasurer' means the South Carolina State Treasurer.
(11) 'Qualified higher education expense' means any higher education expense as defined in Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law.
(12) 'Qualified withdrawal' means a withdrawal by an account owner or beneficiary for qualified higher education expenses or as otherwise permitted under Section 529 of the Internal Revenue Code of 1986, as amended, without a penalty required thereunder.
Section 59-2-40. The Office of State Treasurer shall have responsibility over both SCTSP and the South Carolina Tuition Prepayment Program (SCTPP) established under Chapter 4 of this title.
Section 59-2-50. In addition to the powers granted by any other provision of this chapter, the Office of State Treasurer shall have the powers necessary to carry out the purposes and provisions of this chapter and the purposes and objectives of the trust fund including, but not limited to, the following:
(1) adopt those regulations as are necessary to implement the provisions of this chapter, subject to applicable federal laws and regulations, including regulations regarding transfers of funds between accounts established under prepaid tuition contracts and savings trust agreements;
(2) execute contracts and other necessary instruments;
(3) impose reasonable limits on the number of contract participants in the trust fund at any given period of time;
(4) contract for necessary goods and services, to employ necessary personnel, and to engage the services of consultants and other qualified persons and entities for administrative and technical assistance in carrying out the responsibilities of the trust funds under terms and conditions that the State Treasurer deems reasonable, to include contract terms for periods of up to ten years which contract may be terminated, extended, or renewed with these entities for a term determined by the State Treasurer, but in no event shall such contract exceed a term of ten years at any one time;
(5) solicit and accept gifts, as defined in Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law, as well as any regulations established by the Office of State Treasurer, and to participate in any other way in any federal, state, or local governmental programs in carrying out the purposes of this chapter;
(6) define the terms and conditions under which payments may be withdrawn or refunded from the trust fund and impose reasonable charges for such withdrawal or refund;
(7) impose reasonable time limits on the use of savings trust account distributions provided by the program;
(8) regulate the receipt of contributions or payments to the trust fund;
(9) establish agreements or other transactions with federal, state, and local agencies, including state institutions of higher learning;
(10) segregate contributions and payments to the fund into various accounts and funds;
(11) require and collect administrative fees and impose reasonable penalties, not to exceed the minimum penalties required under Section 529 of the Internal Revenue Service Code of 1986, as amended, for withdrawal of funds for nonqualified higher educational expenses or for entering into a savings trust agreement on a fraudulent basis;
(12) require that account owners of savings trust agreements verify, under oath, any requests for contract conversions, substitutions, transfers, cancellations, or refund requests;
(13) solicit proposals and contract for the marketing of the SCTSP Program, provided that any materials produced by a marketing contractor for the purpose of marketing the program must be approved by the State Treasurer prior to being made available to the public, and neither the State nor the Office of State Treasurer shall be liable for misrepresentation of the program by a marketing contractor;
(14) delegate responsibility for administration of the comprehensive investment plan to contractors or consultants the State Treasurer determines to be qualified;
(15) create as a part of the comprehensive investment plan various age-based investment options for the contributor to choose among on an annual basis, given that the investment options meet the requirements of Section 529 of the Internal Revenue Code of 1986, as amended, and neither a contributor or beneficiary is directly or indirectly directing the investment of any contribution to the program;
(16) establish procedures to allow for transfer of funds from an existing South Carolina Tuition Prepayment Program account for any other college savings account as allowable under Section 529 of the Internal Revenue Code of 1986, as amended;
(17) to make all necessary and appropriate arrangements with colleges and universities or other entities in order to fulfill its obligations under savings trust agreements; and
(18) establish other policies, procedures, and criteria necessary to implement and administer the provisions of this chapter in compliance with Section 529 of the Internal Revenue Code of 1986, as amended, and other applicable federal and state law.
Section 59-2-60. (A) The Office of State Treasurer shall make savings trust agreements available to the public, under which account owners or other contributors may make contributions on behalf of beneficiaries. These contributions and investment earnings on these contributions may be used for any qualified higher educational expenses of a designated beneficiary. There is no guarantee by the State that the contributions, together with the investment return on the contributions, if any, will be adequate to pay for qualified education expenses in full.
(B) Each savings trust agreement made pursuant to this chapter must include the following terms and provisions:
(1) the maximum and minimum contributions allowed on behalf of each beneficiary for the payment of qualified higher education expenses at eligible institutions, both as defined in Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law, so that in no case shall the maximum allowable contribution be less than the amount allowable for gift tax exclusion under Section 529 of the Internal Revenue Code of 1986, as amended;
(2) provisions for withdrawals, refunds, transfers, and any penalties;
(3) the name, address, and date of birth of the beneficiary on whose behalf the savings trust account is opened;
(4) terms and conditions for a substitution of the beneficiary originally named;
(5) terms and conditions for termination of the account, including any refunds, withdrawals, or transfers, applicable penalties, and the name of the person entitled to terminate the account;
(6) the time period during which the beneficiary must use benefits from the savings trust account;
(7) all other rights and obligations of the account owner and the SCTSP Trust Fund; and
(8) any other terms and conditions which the State Treasurer deems necessary or appropriate, including those necessary to conform the savings trust account with the requirements of Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law or regulations.
Section 59-2-70. (A) There is created a South Carolina Tuition Savings Trust Fund separate and distinct from the state general fund, the SCTSP Trust Fund, to be administered by the Office of State Treasurer. The SCTSP Trust Fund shall consist of money remitted in accordance with savings trust agreements. The trust fund shall receive and hold all payments, contributions, and deposits intended for it as well as all earnings thereon until disbursed as provided hereunder.
(B) The amounts on deposit in the trust fund do not constitute property of the State. Amounts on deposit in the trust fund must not be commingled with other state funds and the State shall have no claim to or interest in such funds. Savings trust agreements or any other contract entered into by or on behalf of the trust fund do not constitute a debt or obligation of the State and no account owner shall be entitled to any amounts except for those amounts on deposit in or accrued to their account.
(C) The SCTSP Trust Fund shall continue in existence as long as it holds any funds belonging to an account owner or otherwise has any obligations to any person or entity until its existence is terminated by law and remaining assets on deposit are returned to account owners or transferred to the State as provided by law.
(D) The Office of State Treasurer shall administer the fund, including, without limitation, the keeping of records, the management of bank accounts and other investments, the transfer of funds and the safekeeping of securities evidencing investments. These functions may be administered pursuant to a management agreement with a qualified entity or entities.
(E) Payments received by the Office of State Treasurer on behalf of beneficiaries from account owners and other contributors shall be placed in the trust fund.
(F) The State Treasurer shall cause there to be maintained separate records and accounts for individual beneficiaries as may be required under Section 529 of the Internal Revenue Code of 1986, as amended, and any other applicable federal law.
(G) Account owners and any other contributors shall only be permitted to contribute cash or any other form of payment or contribution as may be permitted under Section 529 of the Internal Revenue Code of 1986, as amended, and approved by the State Treasurer. The director shall cause the program to maintain adequate safeguards against contributions in excess of what may be required for Qualified Higher Education Expenses. The trust fund is specifically authorized to receive and deposit into the trust fund any monetary gift made by an individual by testamentary disposition including, without limitation, any specific gift or bequeath made by will, trust, or other disposition to the extent permitted under Section 529 of the Internal Revenue Code of 1986, as amended. The trust fund may receive amounts transferred from an UGMA, UTMA, or other account established for the benefit of a minor provided that the trust beneficiary of such an account is identified as the legal owner of the SCTSP Trust Fund account upon attaining majority age.
(H) The account owner retains ownership of all amounts on deposit in his or her account with the program up to the date of distribution on behalf of a designated beneficiary unless otherwise provided herein. Earnings derived from investment of the contributions shall be considered to be held in trust in the same manner as contributions, except as applied for purposes of the designated beneficiary. Amounts on deposit therein shall be available for expenses and penalties imposed by the Office of State Treasurer for the program as disclosed in the savings trust agreement.
(I) The assets of the SCTSP Trust Fund shall be preserved, invested, and expended solely pursuant to and for the purposes of this chapter and shall not be loaned or otherwise transferred or used by the State of South Carolina for any other purpose.
Section 59-2-80. (A) All property and income of the SCTSP Trust Fund, as an instrumentality of the State, shall be exempt from all taxation by the State and by its political subdivisions.
(B) Any interest, dividends, gains, or income accruing on the payments made pursuant to a savings trust agreement under the terms of this chapter or on any account in the SCTSP Trust Fund shall be excluded from the gross income of any such account owner, contributor, or beneficiary for purposes of South Carolina income taxes, to the extent such amounts remain on deposit in the SCTSP Trust Fund or are withdrawn pursuant to a qualified withdrawal. The SCTSP Trust Fund and Tuition Prepayment Program under Chapter 4 of this title shall constitute the only programs established pursuant to Section 529 of the Internal Revenue Code of 1986, as amended.
(C) The earnings portion of any withdrawals from an account that are not qualified withdrawals shall be included in the gross income of the resident recipient of the withdrawal for purposes of South Carolina income taxes in the year of the withdrawal.
(D) Contributions to a savings trust account created under this chapter by a resident of this State or a nonresident required to file a State of South Carolina income tax return for any year are deductible from South Carolina income subject to tax for that year up to the limit of maximum contributions allowed to such accounts under Section 529 of the Internal Revenue Code of 1986, as amended, including funds transferred to a savings trust account from another qualified college savings account, as allowable under Section 529 of the Internal Revenue Code of 1986, as amended, to the extent that the transferred funds where not permitted a State income tax reduction previously under state law.
Section 59-2-90. (A) The Office of State Treasurer has authority to establish a comprehensive investment plan for the purposes of this chapter, to invest any funds of the trust fund in any instrument, obligation, security, or property that constitutes legal investments and to name and use depositories for its investments and holdings. The comprehensive investment plan shall specify the investment policies to be utilized by the State Treasurer in its administration of the funds.
Notwithstanding any provisions of law, the Office of State Treasurer shall invest or cause to be invested amounts on deposit in the trust fund in a manner reasonable and appropriate to achieve the objectives of the program, exercising the discretion and care of a prudent person in similar circumstances with similar objectives. The Office of State Treasurer shall give due consideration to the risk, expected rate of return, term or maturity, diversification of total investments, liquidity and anticipated investments in and withdrawals from the trust fund.
(B) All investments shall be acquired at prices not exceeding the prevailing market values for such securities.
(C) Any limitations herein set forth shall be applicable only at the time of purchase and shall not require the liquidation of any investment at any time. All investments shall be clearly marked to indicate ownership by the trust fund and to the extent possible shall be registered in the name of the trust fund.
(D) Subject to the above terms, conditions, limitations, and restrictions, the Office of State Treasurer shall have power to sell, assign, transfer, and dispose of any of the securities and investments of the trust fund. The State Treasurer may employ or contract with investment managers, evaluation services, or other such services as determined by the Office of State Treasurer to be necessary for the effective and efficient operation of the trust fund.
(E) Except as otherwise provided herein, no employee of the trust fund shall have any direct or indirect interest in the income, gains, or profits of any investment made by the trust fund, nor shall any such person receive any pay or emolument for his services in connection with any investment made by the trust fund.
(F) Under the authority granted in Section 59-2-50, the State Treasurer may establish criteria for investment managers, mutual funds, or other entities to act as contractors or consultants to the Office of State Treasurer. The State Treasurer may contract, either directly or through these contractors or consultants, to provide such services as may be a part of the comprehensive investment plan or as may be deemed necessary or proper by the State Treasurer including, but not limited to, providing consolidated billing, individual and collective record keeping and accounting, and asset purchase, control, and safekeeping.
(G) No account owner, contributor, contributors, or beneficiary may directly or indirectly direct the investment of any account except as may be permitted under Section 529 of the Internal Revenue Code of 1986, as amended.
(H) The Office of State Treasurer may approve different investment plans and options to be offered to participants to the extent permitted under Section 529 of the Internal Revenue Code of 1986, as amended, and consistent with the objectives of this chapter and may require the assistance of investment counseling prior to participation in different options.
Section 59-2-100. (A) The State Treasurer shall furnish without charge to each account owner an annual statement of:
(1) the amount contributed by the account owner under the savings trust agreement;
(2) the annual earnings and accumulated earnings on the savings trust account; and
(3) any other terms and conditions which the State Treasurer deems necessary or appropriate, including those necessary to conform the savings trust account with the requirements of Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law or regulations.
(B) The State Treasurer shall furnish an additional statement complying with subsection (A) to an account owner or beneficiary on written request. The State Treasurer may charge a reasonable fee for each statement furnished under this subsection.
(C) The Office of State Treasurer shall prepare or cause to be prepared an annual report setting forth in appropriate detail an accounting of the funds and a description of the financial condition of the program at the close of each fiscal year. Such report shall be submitted to the Governor and the General Assembly. In addition, the Office of State Treasurer shall make the report available to account owners of savings trust agreements. The accounts of the fund shall be subject to annual audits by the State Auditor or his designee.
Section 59-2-110. This chapter is not a promise or guarantee that the beneficiary will be:
(a) admitted to any institution of higher learning;
(b) allowed to continue enrollment at an institution of higher learning; or
(c) graduated from an institution of higher learning.
Section 59-2-120. Nothing in this chapter or in any savings trust agreement entered into pursuant to this chapter shall be construed as a promise or guarantee by the State or any agency thereof that either qualified higher education expenses in general or any specific qualified higher education expense shall be covered in full by contributions or earnings on any savings trust account. Savings trust accounts and agreements entered into pursuant to this chapter are not guaranteed by the full faith and credit of the State of South Carolina.
Section 59-2-130. Notwithstanding any provision of law, no moneys on deposit in the SCTSP Trust Fund shall be considered an asset of either the parent, guardian, or student for purposes of determining an individual's eligibility for a need based grant, a need based scholarship, or a need based work opportunity offered or administered by any state agency except as may be required by the funding source of such financial aid.
Section 59-2-140. The SCTSP Trust Fund, contributions to the SCTSP Trust Fund, and the right of a person to a refund of contributions or any other right accrued or accruing to any person under the provisions of this chapter are exempt from attachment, garnishment, levy, and sale under any means or final process issued by any court or bankruptcy proceeding and are unassignable except as specifically otherwise provided in this chapter.
Section 59-2-150. The provisions of this chapter are severable. If any part of this chapter is declared invalid or unconstitutional, such declaration shall not affect the parts which remain. Any fees charged by and any reimbursement of expenses to any managing entity may not exceed one and one-half percent of the annual contributions to each savings trust account.
Section 59-2-160. In no event shall the aggregate annual fees or expense reimbursements, including, but not limited to transactional fees and sales commissions, charged by the treasurer and a managing entity and any other entity pursuant to a management agreement, consulting, or any other contract exceed one percent of the aggregate annual contribution made by account holders."
SECTION 4. Section 59-4-100 of the 1976 Code is amended to read:
"Section 59-4-100. Notwithstanding any other provision of law, neither the program nor the fund is liable for income taxes, and neither the program nor the fund is liable for local taxes, fees, or assessments. In addition, contributions to the fund credited to a beneficiary's account
do not entitle the contributor to a deduction for purposes of the state individual income tax, nor must and these contributions must not be included in the South Carolina gross income of the beneficiary or anyone required to support the beneficiary. Furthermore, earnings on the account, tuition waivers, credits or payments for tuition, or any money or payout that the designated beneficiary receives or from which he benefits to the extent that the payments are used for tuition expenses during the same calendar year in which they are received shall not be included in the South Carolina gross income of the beneficiary or anyone required to support the beneficiary."
SECTION 5. Section 12-6-1140 of the 1976 Code is amended by adding an appropriately numbered new subsection to read:
"( ) a contribution to the South Carolina Tuition Prepayment Program as provided in Section 59-4-100."
SECTION 6. This act takes effect upon approval by the Governor.
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