Application For Registration Of A Foreign Business Trust {312}

Form 312--General Information (Application for Registration of a Foreign Business Trust, Real Estate Investment Trust or Other Foreign Filing Entity) The attached form is drafted to meet minimal statutory filing requirements pursuant to the relevant code provisions. This form and the information provided are not substitutes for the advice and services of an attorney and tax specialist. Commentary To transact business in Texas, a foreign entity must register with the secretary of state under chapter 9 of the Texas Business Organizations Code (BOC). The registration requirement applies to a foreign corporation, foreign limited partnership, foreign limited liability company, foreign business trust, foreign real estate investment trust, foreign cooperative, foreign public or private limited company, or another foreign entity, the formation of which, if formed in Texas, would require the filing of a certificate of formation with the secretary of state. Also, a foreign entity that affords limited liability for any owner or member under the laws of its jurisdiction of formation is required to register. Use this form if the application for registration is submitted on behalf of a foreign business trust, foreign real estate investment trust or a foreign filing entity other than a for-profit, nonprofit, or professional corporation, limited partnership, limited liability company, limited liability partnership or professional association. This form also may be used for permissive registration under section 9.003 of the BOC. In accordance with section 9.003, a foreign entity that is eligible under other law of Texas to register to transact business in this state, but is not registered under that law, may file an application for registration under chapter 9 of the BOC unless that registration is prohibited by the other law. Failure to Register: A foreign entity may engage in certain limited activities in the state without being required to register (BOC § 9.251). However, a foreign entity that fails to register when required to do so 1) may be enjoined from transacting business in Texas on application by the attorney general, 2) may not maintain an action, suit, or proceeding in a court of this state until registered, and 3) is subject to a civil penalty in an amount equal to all fees and taxes that would have been imposed if the entity had registered when first required. Penalty for Late Filing: A foreign entity that has transacted business in the state for more than ninety (90) days is also subject to a late filing fee. The secretary of state may condition the filing of the registration on the payment of a late filing fee that is equal to the registration fee for each year, or part of a year, that the entity transacted business in the state without being registered. Taxes: Business trusts are subject to a state franchise tax. REITs are generally not considered taxable entities for franchise tax purposes. However, a REIT with any amount of its assets in direct holdings of real estate, other than real estate it occupies for business purposes, as opposed to holding interests in limited partnerships or other entities that directly hold the real estate, is a taxable entity. Other legal entities registering to transact business may be deemed taxable entities and subject to a state franchise tax. Contact the Texas Comptroller of Public Accounts, Tax Assistance Section, Austin, Texas, 787740100, (512) 463-4600 or (800) 252-1381 for franchise tax information. For information relating to federal employer identification numbers, federal income tax filing requirements, tax publications and forms call (800) 829-3676 or visit the Internal Revenue Service web site at www.irs.gov. Form 312 1 Instructions for Form Item 1--Entity Name: Provide the full legal name of the foreign entity as stated in the entity's formation document. Do not include a "d/b/a" or assumed name in item 1. In addition, the name of the foreign entity must comply with chapter 5 of the BOC. Chapter 5 requires that: (1) the entity name not contain any word or phrase that indicates or implies that the entity is engaged in a business that the entity is not authorized to pursue (BOC § 5.052); and (2) the entity name not be the same as, deceptively similar to, or similar to the name of any existing domestic or foreign filing entity, or any name reservation or registration filed with the secretary of state (BOC § 5.053). If the entity name does not comply with chapter 5, the document cannot be filed. The administrative rules adopted for determining entity name availability (Texas Administrative Code, title 1, part 4, chapter 79, subchapter C) may be viewed at www.sos.state.tx.us/tac/index.shtml. If you wish the secretary of state to provide a preliminary determination on name availability, you may call (512) 463-5555, dial 7-1-1 for relay services, or e-mail your name inquiry to corpinfo@sos.state.tx.us. A final determination cannot be made until the document is received and processed by the secretary of state. Do not make financial expenditures or execute documents based on a preliminary clearance. Also note that the preclearance of a name or the issuance of a certificate under a name does not authorize the use of a name in violation of another person's rights to the name. Item 2--Assumed Name: If it has been determined that the entity's legal name is not available for its use in Texas due to a conflict with a previously existing name, the foreign entity must obtain its registration to transact business under an assumed name that complies with chapter 5 of the BOC. State the assumed name that the foreign entity elects to adopt for use in Texas in item 2 of the application. In addition, the foreign entity is required to file an assumed name certificate in compliance with chapter 71 of the Texas Business & Commerce Code. The promulgated form for filing the assumed name with the secretary of state is Form 503. This form is not acceptable for filing with the county clerk. Item 3--Entity Type: Indicate whether the foreign filing entity is a business trust, real estate investment trust or other foreign filing entity. If other, please describe the type of entity that is registering. Item 4--Federal Employer Identification Number: Enter the entity's federal employer identification number (FEIN) in the space provided. The FEIN is a 9-digit number (e.g., 123456789) that is issued by the Internal Revenue Service (IRS). If the entity has not received