47-14B-1      Laws governing organization of foreign business trust.
47-14B-2      Registration of foreign business trust.
47-14B-3      Doing business in the state.
47-14B-4      Certification and filing of application.
47-14B-5      Name of foreign business trust.
47-14B-6      Office and agent of foreign business trust.
47-14B-7      Change of address of registered office of foreign business trust.
47-14B-8      Resignation of foreign business trust registered agent--Successor--Appointment.
47-14B-9      Resignation of foreign business trust registered agent--No successor appointed.
47-14B-10      Correction of false application of foreign business trust.
47-14B-11      Canceling a foreign business trust.
47-14B-12      Action, suit, or proceeding by foreign business trust.
47-14B-13      Failure of foreign business trust to register.
47-14B-14      Liability of beneficial owner or trustee of foreign business trust.
47-14B-15      Jurisdiction of circuit court for failure to register or for false registration.
47-14B-16      Application of § 47-14A-51.
47-14B-17      Service of process on foreign business trust.
47-14B-18      Service of process when due diligence fails.
47-14B-19      Service of process on unregistered foreign business trust.
47-14B-20      "Doing business" defined.
47-14B-21      Service upon secretary of state--Notice to foreign business trust.
47-14B-22      Filing fees-Documents not effective until fee paid.
47-14B-23      Application of chapter.
47-14B-24      Compliance with requirements--Violation.
47-14B-25      Citation of chapter.

47-14B-1. Laws governing organization of foreign business trust.

The laws of the state, territory, possession, or other jurisdiction or country under which a foreign business trust is organized govern its organization and internal affairs and the liability of its beneficial owners and trustees. A foreign business trust may not be denied registration by reason of any difference between those laws and the laws of the state.

Source: SL 2001, ch 245, § 97.

47-14B-2. Registration of foreign business trust.

Before doing business in the state, a foreign business trust shall register with the secretary of state. In order to register, a foreign business trust shall submit to the secretary of state:

(1)    A copy executed by a trustee or other authorized person of an application for registration as a foreign business trust, setting forth:

(a)    The name of the foreign business trust and, if different, the name under which it proposes to register and do business in the state;

(b)    The state, territory, possession, or other jurisdiction or country where formed, the date of its formation and a statement from a trustee or other authorized person that, as of the date of filing, the foreign business trust validly exists as a business trust under the laws of the jurisdiction of its formation;

(c)    The nature of the business or purposes to be conducted or promoted in the state;

(d)    The address of the registered office and the name and address of the registered agent for service of process required to be maintained by §§ 47-14B-5 to 47-14B-9, inclusive;

(e)    A statement that the secretary of state is appointed the agent of the trust for service of process under the circumstances set forth in § 47-14B-17; and

(f)    The date on which the foreign business trust first did, or intends to do, business in the state.

(2)    A fee as set forth in § 47-14B-22 shall be paid.

Source: SL 2001, ch 245, § 98.

47-14B-3. Doing business in the state.

No person may be deemed to be doing business in the state solely by reason of being a trustee or a beneficial owner of a foreign business trust.

Source: SL 2001, ch 245, § 99.

47-14B-4. Certification and filing of application.

If the secretary of state finds that an application for registration conforms to law and all requisite fees have been paid, the secretary of state shall:

(1)    Certify that the application has been filed in the secretary of state's office by endorsing upon the original application the word, Filed, and the date and hour of the filing. This endorsement is conclusive of the date and time of its filing in the absence of actual fraud;

(2)    File and index the endorsed application.

The secretary of state shall prepare and return to the person who filed the application or the person's representative a copy of the original signed application, similarly endorsed, and shall certify such copy as a true copy of the original signed application.

Source: SL 2001, ch 245, § 100.

47-14B-5. Name of foreign business trust.

A foreign business trust may register with the secretary of state under any name (whether or not it is the name under which it is registered in the jurisdiction of its formation) that could be registered by a domestic business trust. However, a foreign business trust may register under any name which is not such as to distinguish it upon the records in the Office of the Secretary of State from the name of any domestic or foreign corporation, business trust, limited liability company, or limited partnership reserved, registered, or organized under the laws of the state with the written consent of the other corporation, business trust, limited liability company, or limited partnership, which written consent shall be filed with the secretary of state.

Source: SL 2001, ch 245, § 101.

47-14B-6. Office and agent of foreign business trust.

Each foreign business trust shall have and maintain in the state:

(1)    A registered office which may but need not be a place of its business in the state; and

(2)    A registered agent for service of process on the foreign business trust, which agent may be either an individual resident of the state whose business office is identical with the foreign business trust's registered office, or a domestic corporation, or a domestic limited partnership, or a business trust, or a domestic limited liability company, or a foreign corporation, or a foreign limited partnership, or a foreign business trust, or a foreign limited liability company authorized to do business in the state having a business office identical with such registered office, which is generally open during normal business hours to accept service of process and otherwise perform the functions of a registered agent.

Source: SL 2001, ch 245, § 102.

47-14B-7. Change of address of registered office of foreign business trust.

A registered agent may change the address of the registered office of the foreign business trust for which he or she is registered agent to another address in the state by paying a fee as set forth in § 47-14B-22 and filing with the secretary of state a certificate, executed by such registered agent, setting forth the names of all the foreign business trusts represented by such registered agent, and the address at which such registered agent has maintained the registered office for each of such foreign business trusts, and further certifying to the new address to which each such registered office will be changed on a given day, and at which new address such registered agent will thereafter maintain the registered office for each of the foreign business trusts recited in the certificate. Upon the filing of such certificate, the secretary of state shall furnish to the registered agent a certified copy of the same under the secretary of state's hand and seal of office, and thereafter, or until further change of address, as authorized by law, the registered office in the state of each of the foreign business trusts recited in the certificate shall be located at the new address of the registered agent thereof as given in the certificate. In the event of a change of name of any person acting as a registered agent of a foreign business trust, such registered agent shall file with the secretary of state a certificate, executed by such registered agent, setting forth the new name of such registered agent, the name of such registered agent before it was changed, the names of all the foreign business trusts represented by such registered agent, and the address at which such registered agent has maintained the registered office for each of such foreign business trusts, and shall pay a fee as set forth in § 47-14B-22. Upon the filing of such certificate, the secretary of state shall furnish to the registered agent a certified copy of the same under the secretary of state's hand and seal of office. Filing a certificate under this section shall be deemed to be an amendment of the application of each foreign business trust affected thereby and each foreign business trust need not take any further action with respect thereto, to amend its application under § 47-14B-10. Any registered agent filing a certificate under this section shall promptly, upon such filing, deliver a copy of any such certificate to each foreign business trust affected thereby.

Source: SL 2001, ch 245, § 103.

47-14B-8. Resignation of foreign business trust registered agent--Successor--Appointment.

The registered agent of one or more foreign business trusts may resign and appoint a successor registered agent by paying a fee as set forth in § 47-14B-22 and filing a certificate with the secretary of state, stating that it resigns and the name and address of the successor registered agent. There shall be attached to such certificate a statement executed by each affected foreign business trust ratifying and approving such change of registered agent. Upon such filing, the successor registered agent shall become the registered agent of such foreign business trust as has ratified and approved such substitution and the successor registered agent's address, as stated in such certificate, shall become the address of each such foreign business trust's registered office in the state. The secretary of state shall furnish to the successor registered agent a certified copy of the certificate of resignation. Filing of such certificate of resignation shall be deemed to be an amendment of the application of each foreign business trust affected thereby and each such foreign business trust need not take any further action with respect thereto, to amend its application under § 47-14B-10.

Source: SL 2001, ch 245, § 104.

47-14B-9. Resignation of foreign business trust registered agent--No successor appointed.

The registered agent of a foreign business trust may resign without appointing a successor registered agent by paying a fee as set forth in § 47-14B-22 and filing a certificate with the secretary of state stating that it resigns as registered agent for the foreign business trust identified in the certificate, but such resignation shall not become effective until one hundred twenty days after the certificate is filed. There shall be attached to such certificate an affidavit of such registered agent, if an individual, or of the president, a vice president or the secretary thereof if a corporation, that at least thirty days prior to and on or about the date of the filing of the certificate, notices were sent by certified or registered mail to the foreign business trusts for which such registered agent is resigning as registered agent, at the principal office thereof within or outside the state, if known to such registered agent or, if not, to the last known address of the attorney or other individual at whose request such registered agent was appointed for such foreign business trust, of the resignation of such registered agent. After receipt of the notice of the resignation of its registered agent, the foreign business trust for which such registered agent was acting shall obtain and designate a new registered agent, to take the place of the registered agent so resigning. If such foreign business trust fails to obtain and designate a new registered agent as aforesaid prior to the expiration of the period of one hundred twenty days after the filing by the registered agent of the certificate of resignation, such foreign business trust may not be permitted to do business in the state and its registration shall be deemed to be canceled. After the resignation of the registered agent has become effective as provided in this section and if no new registered agent has been obtained and designated in the time and manner aforesaid, service of legal process against the foreign business trust for which the resigned registered agent had been acting shall thereafter be upon the secretary of state in accordance with § 47-14B-19.

Source: SL 2001, ch 245, § 105.

47-14B-10. Correction of false application of foreign business trust.

If any statement in the application for registration of a foreign business trust was false when made or any arrangements or other facts described have changed, making the application false in any respect, the foreign business trust shall promptly file in the Office of the Secretary of State a certificate, executed by a trustee or other authorized person, correcting such statement, together with a fee as set forth in § 47-14B-22.

Source: SL 2001, ch 245, § 106.

47-14B-11. Canceling a foreign business trust.

A foreign business trust may cancel its registration by filing with the secretary of state a certificate of cancellation, executed by a trustee or other authorized person, together with a fee as set forth in § 47-14B-22. A cancellation does not terminate the authority of the secretary of state to accept service of process on the foreign business trust with respect to causes of action arising out of the doing of business in the state.

Source: SL 2001, ch 245, § 107.

47-14B-12. Action, suit, or proceeding by foreign business trust.

A foreign business trust doing business in the state may not maintain any action, suit, or proceeding in the state until it has registered in the state, and has paid to the state all fees and penalties for the years or parts thereof, during which it did business in the state without having registered.

Source: SL 2001, ch 245, § 108.

47-14B-13. Failure of foreign business trust to register.

The failure of a foreign business trust to register in the state does not:

(1)    Impair the validity of any contract or act of the foreign business trust;

(2)    Impair the right of any other party to the contract to maintain any action, suit, or proceeding on the contract; or

(3)    Prevent the foreign business trust from defending any action, suit, or proceeding in any court of the state.

Source: SL 2001, ch 245, § 109.

47-14B-14. Liability of beneficial owner or trustee of foreign business trust.

A beneficial owner or a trustee of a foreign business trust is not liable for the obligations of the foreign business trust solely by reason of the business trust's having done business in the state without registration.

Source: SL 2001, ch 245, § 110.

47-14B-15. Jurisdiction of circuit court for failure to register or for false registration.

The circuit court shall have jurisdiction to enjoin any foreign business trust, or any agent thereof, from doing any business in the state if such foreign business trust has failed to register under this section or if such foreign business trust has secured a certificate of the secretary of state on the basis of false or misleading representations. The attorney general shall, upon the attorney general's own motion or upon the relation of proper parties, proceed for this purpose by complaint in any county in which such foreign business trust is doing or has done business.

Source: SL 2001, ch 245, § 111.

47-14B-16. Application of § 47-14A-51.

Section 47-14A-51 is also applicable to foreign business trusts as if they were domestic business trusts.

Source: SL 2001, ch 245, § 112.

47-14B-17. Service of process on foreign business trust.

Service of legal process upon any foreign business trust shall be made by delivering a copy personally to any trustee of the foreign business trust in the state or the registered agent of the foreign business trust in the state, or by leaving it at the dwelling house or usual place of abode in the state of any such trustee or registered agent (if the registered agent be an individual), or at the registered office or other place of business of the foreign business trust in the state. If the registered agent be a corporation, service of process upon it as such may be made by serving, in the state, a copy thereof on the president, vice president, secretary, assistant secretary, or any director of the corporate registered agent. Service by copy left at the dwelling house or usual place of abode of any trustee or registered agent, or at the registered office or other place of business of the foreign business trust in the state, to be effective, must be delivered thereat at least six days before the return date of the process, and in the presence of an adult person, and the officer serving the process shall distinctly state the manner of service in the officer's return thereto. Process returnable forthwith must be delivered personally to the trustee or registered agent.

Source: SL 2001, ch 245, § 113.

47-14B-18. Service of process when due diligence fails.

In case the officer whose duty it is to serve legal process cannot by due diligence serve the process in any manner provided for by § 47-14B-17, the process against the foreign business trust may be served upon the secretary of state, and such service shall be as effectual for all intents and purposes as if made in any of the ways provided for in § 47-14B-17. In the event service is effected through the secretary of state in accordance with this section, the secretary of state shall forthwith notify the foreign business trust by letter, certified mail, return receipt requested, directed to the foreign business trust at its last registered office. Such letter shall enclose a copy of the process and any other papers served on the secretary of state pursuant to this section. The plaintiff shall, in the event of such service, serve process and any other papers in duplicate, notify the secretary of state that service is being effected pursuant to this section, and to pay to the secretary of state the sum of fifty dollars for the use of the state, which sum shall be taxed as a part of the costs in the proceeding if the plaintiff shall prevail therein. The secretary of state shall maintain an alphabetical record of any such service setting forth the name of the plaintiff and defendant, the title, docket number, and nature of the proceeding in which process has been served upon the secretary of state, the fact that service has been effected pursuant to this section, the return date thereof and the day and hour when the service was made. The secretary of state need not retain such information for a period longer than five years from receipt of the service of process.

Source: SL 2001, ch 245, § 114.

47-14B-19. Service of process on unregistered foreign business trust.

Any foreign business trust which does business in the state without having registered under this chapter shall be deemed to have thereby appointed and constituted the secretary of state its agent for the acceptance of legal process in any civil action, suit, or proceeding against it in any state or federal court in the state arising or growing out of any business done by it within the state. The doing of business in the state by such foreign business trust shall be a signification of the agreement of such foreign business trust that any such process when so served shall be of the same legal force and validity as if served upon an authorized manager or agent personally within the state.

Source: SL 2001, ch 245, § 115.

47-14B-20. "Doing business" defined.

Whenever the words, doing business, the doing of business, or business done in this state, by any such foreign business trust are used in this section, they mean the course or practice of carrying on any business activities in the state.

Source: SL 2001, ch 245, § 116.

47-14B-21. Service upon secretary of state--Notice to foreign business trust.

In the event of service upon the secretary of state, the secretary of state shall forthwith notify the foreign business trust thereof by letter, certified mail, return receipt requested, directed to the foreign business trust at the address furnished to the secretary of state by the plaintiff in such action, suit, or proceeding. Such letter shall enclose a copy of the process and any other papers served upon the secretary of state. The plaintiff shall, in the event of such service, serve process and any other papers in duplicate, notify the secretary of state that service is being made pursuant to this section, and pay to the secretary of state the sum of fifty dollars for the use of the state, which sum shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail therein. The secretary of state shall maintain an alphabetical record of any such process setting forth the name of the plaintiff and defendant, the title, docket number, and nature of the proceeding in which process has been served upon the secretary of state, the return date thereof, and the day and hour when the service was made. The secretary of state need not retain such information for a period longer than five years from receipt of the service of process.

Source: SL 2001, ch 245, § 117.

47-14B-22. Filing fees-Documents not effective until fee paid.

No document required to be filed under this chapter is effective until the applicable fee required by this section is paid. The following fees shall be paid to and collected by the secretary of state for the use of the state:

(1)    Upon receipt for filing of an application for registration as a foreign business trust, a certificate, or a certificate of cancellation, a fee of one hundred twenty-five dollars; and

(2)    Upon the receipt for filing of a certificate, a fee of fifty dollars.

Source: SL 2001, ch 245, § 118; SL 2009, ch 4, § 14.

47-14B-23. Application of chapter.

This chapter applies to all business trusts of the type described in this chapter now existing or hereafter created and all such business trusts existing on July 1, 2001, desiring to continue operations must have registered under the provisions of this chapter by filing in the Office of the Secretary of State a declaration of trust and paying a fee of fifty dollars prior to September 30, 2001.

Source: SL 2001, ch 245, § 119.

47-14B-24. Compliance with requirements--Violation.

No person may transact or conduct any business, within this state, under any business trust without first complying with the provisions and requirements of this chapter. A violation of this section is a Class 1 misdemeanor.

Source: SL 2001, ch 245, § 120.

47-14B-25. Citation of chapter.

This chapter may be cited as the South Dakota Foreign Business Trust Act.

Source: SL 2001, ch 245, § 121.