SUBCHAPTER 03J ‑ REFUND ANTICIPATION LOAN

 

SECTION .0100 ‑ ADMINISTRATIVE

 

04 NCAC 03J .0101           DEFINITIONS; FILINGS

(a)  As used in this Subchapter, unless the context clearly requires otherwise:

(1)           "Applicant" shall have the same meaning as set forth in G.S. 53-246(1).

(2)           "Commission" shall have the same meaning as set forth in G.S. 53-246(2).

(3)           "Commissioner" shall have the same meaning as set forth in G.S. 53-246(3).

(4)           "Controlling person" shall mean any person as defined in G.S. 53-246(7) who owns or holds with the power to vote 10% or more of the equity securities of the registrant, or who has the power to direct the management and policy of the registrant.

(5)           "Creditor" shall have the same meaning as set forth in G.S. 53-246(4).

(6)           "Creditor fee" shall mean the fee imposed by the creditor which funds the refund anticipation loan in consideration for funding the refund anticipation loan.

(7)           "Debtor" shall have the same meaning as set forth in G.S. 53-246(5).

(8)           "Electronic filing fee" shall mean the fee imposed by the facilitator in consideration for the electronic filing of a tax return.

(9)           "Executive officer" shall have the same meaning as such term is defined in Regulation "O" promulgated by the Board of Governors of the Federal Reserve System, and codified in the Code of Federal Regulations at Title 12, Chapter II, Part 215.

(10)         "Facilitator" shall have the same meaning as set forth in G.S. 53-246(6).

(11)         "Facilitator loan fee" shall mean the fee imposed by the facilitator in consideration for assisting the debtor in obtaining the refund anticipation loan.

(12)         "Income tax return preparation fee" shall mean the fee imposed by a person in consideration for preparation of the debtor's tax returns.

(13)         "Loan-related fee" shall mean any fee other than a creditor fee, facilitator loan fee or electronic filing fee paid by the debtor for transmittal to third persons who provide services in connection with the refund anticipation loan.

(14)         "Person" shall have the same meaning as set forth in G.S. 53-246(7).

(15)         "Refund anticipation loan" shall have the same meaning as set forth in G.S. 53-246(8).

(16)         "Refund Anticipation Loan Act" shall mean the Refund Anticipation Loan Act codified at Chapter 53, Article 20 of the North Carolina General Statutes (G.S. 53-245, et seq.).

(17)         "Refund anticipation loan fee" shall have the same meaning as set forth in G.S. 53-246(9) and shall include a creditor fee, facilitator loan fee, and loan-related fee as defined herein.

(18)         "Registrant" shall have the same meaning as set forth in G.S. 53-246(10).

(19)         "Transmitter" shall mean any person as defined herein who transmits electronic returns directly to the Internal Revenue Service.  This term shall include persons who receive information to be reformatted and transmitted to the Internal Revenue Service, i.e., third-party transmitters.

(b)  An application for registration or any report, notice, form or other document which is required by law or rule to be filed with the Commissioner shall be addressed as follows:

Office of the Commissioner of Banks

4309 Mail Service Center

Raleigh, North Carolina  27699-4309.

 

History Note:        Authority G.S. 53-245; 53-246; 53-248; 53-253; 150B-21.2;

Eff. September 1, 1993;

Amended Eff. September 1, 2006.

SECTION .0200 - APPLICATION AND RENEWAL

 

04 NCAC 03J .0201           APPLICATION FOR REGISTRATION AS A FACILITATOR

(a)  Any person who would like to engage in business as a facilitator pursuant to the Refund Anticipation Loan Act shall first be registered with the Commissioner, unless such person is exempt from registration pursuant to G.S. 53-247(c) or G.S. 53-254.  An application for registration shall be obtained from the Commissioner and shall be filed pursuant to Rule .0101(b) of this Subchapter.

(b)  The application for registration as a facilitator shall include the following:

(1)           A description of the applicant's organizational structure, including the name, business and residence address and business telephone number of the applicant, its partners, executive officers, directors and controlling persons;

(2)           Copies of the following documents, where applicable:

(A)          The applicant's Articles of Incorporation, or general or limited partnership agreement;

(B)          A Certificate of Existence or Certificate of Good Standing not more than 90 days old from the applicant's state of incorporation;

(C)          A Certificate of Authority to do business in this State;

(D)          A copy of the applicant's Certificate of Assumed Name;

(3)           A description of the applicant's operations, including the names and addresses of the banks which will fund refund anticipation loans to its customers, and the names and addresses of transmitters and any other intermediary parties involved in the process of facilitating refund anticipation loans;

(4)           A description of the business(es) in which the applicant is primarily engaged;

(5)           The applicant's Electronic Filer Identification Number (EFIN) as provided by the Internal Revenue Service;

(6)           Proof that the applicant has been accepted by the Internal Revenue Service to participate in its electronic filing program for the present tax year;

(7)           Disclosure of any civil judgments entered against the applicant, its partners, executive officers, directors or controlling persons during the past 10 years which have remained partially or wholly unpaid;

(8)           Disclosure of any civil proceedings pending against or civil judgments entered against the applicant, its partners, executive officers, directors or controlling persons which involve fraud or dishonesty;

(9)           Disclosure of any felony convictions entered against the applicant, its partners, executive officers, directors or controlling persons;

(10)         Disclosure of any misdemeanor convictions entered against the applicant, its partners, executive officers, directors or controlling persons which involve theft, fraud, or dishonesty;

(11)         Disclosure of any enforcement proceeding brought against the applicant, its partners, executive officers, directors or controlling persons by any agency or department of this State, the Federal government or any other state which involves the revocation or suspension of any business license;

(12)         Disclosure of whether the applicant, any partner, executive officer, director, or controlling person has been denied acceptance in or suspended from the Electronic Filing Program of the Internal Revenue Service;

(13)         Disclosure of whether the applicant is, or has ever been, the subject of the following proceedings: bankruptcy, assignment for the benefit of creditors, receivership, conservatorship, or similar proceeding;

(14)         Three business references, including one bank reference;

(15)         The address of each office in this State at which the applicant intends to facilitate refund anticipation loans.

(c)  The application for registration as a facilitator shall be accompanied by a fee made payable to the Commissioner in the amount set forth in G.S. 53-248(a).

(d)  The application shall be in writing and verified.

(e)  Incomplete application files shall be closed and deemed denied without prejudice when the applicant has not submitted information requested by the Commissioner within 30 days of request.

 

History Note:        Authority G.S. 53-245(b); 53-247(a); 53-248(a); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0202           ISSUANCE OF A CERTIFICATE OF REGISTRATION

Upon receipt of a completed application and payment of the fee required by G.S. 53-248(a), the Commissioner shall review the application and conduct such investigation of the applicant as necessary to make the findings required by G.S. 53-248(a).  If the Commissioner finds that the applicant has met the conditions of G.S. 53-248(a), the Commissioner shall issue the applicant a renewable Certificate of Registration.

 

History Note:        Authority G.S. 53-248(a), (b); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0203           EXPIRATION AND RENEWAL

(a)  A Certificate of Registration shall be valid from the date of issuance and, unless timely renewed, shall expire on December 31 of each year.

(b)  Thirty days prior to the date of expiration, each registrant that would like to renew its Certificate of Registration shall submit a renewal application to the Commissioner.  The renewal application shall be obtained from the Commissioner and shall be filed pursuant to Rule .0101(b) of this Subchapter.

(c)  Unless the registrant timely renews its Certificate of Registration, the registrant shall not, after the date of expiration, engage in business as a facilitator in this State.

(d)  If the Certificate of Registration expires, the registrant shall apply for a Certificate of Registration pursuant to Rule .0201 of this Section if it wishes to engage in business as a facilitator in this State.

 

History Note:        Authority G.S. 53-248(b); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0204           APPLICATION FOR RENEWAL OF CERTIFICATE OF REGISTRATION

(a)  The application for renewal of the Certificate of Registration shall include the following:

(1)           Where applicable, any amendments to the application for registration filed pursuant to Rule .0201 of this Subchapter;

(2)           A written verification of the accuracy of the application for Certificate of Registration filed pursuant to Rule .0201 of this Subchapter and any amendments filed pursuant to Rules .0204(a)(1) and .0305 of this Subchapter.

(b)  The application for renewal of the Certificate of Registration shall be accompanied by a fee made payable to the Commissioner in the amount set forth in G.S. 53-248(b) for each office at which the registrant intends to facilitate refund anticipation loans during the succeeding year.

(c)  Incomplete applications for renewal of the Certificate of Registration shall be closed and the application for renewal deemed denied without prejudice when the registrant has not submitted information requested by the Commissioner within 30 days of such request.

 

History Note:        Authority G.S. 53-248(a),(b); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0205           NONTRANSFERABILITY OF CERTIFICATE OF REGISTRATION

(a)  A Certificate of Registration shall be neither transferable nor assignable.

(b)  The circumstances under which the Commissioner shall deem a change in the registrant's organizational structure to constitute a transfer or assignment of the Certificate of Registration shall include, but not be limited to, the following:

(1)           If the registrant is a corporation:

(A)          A change in ownership of 50% or more of the registrant's stock;

(B)          The conversion of the corporation into a general or limited partnership or proprietorship;

(2)           If the registrant is a general or limited partnership:

(A)          A change in one of the registrant's general partners;

(B)          The conversion of the general partnership into a limited partnership, corporation or proprietorship;

(C)          The conversion of the limited partnership into a general partnership, corporation or proprietorship;

(3)           If the registrant is a proprietor:

(A)          The conversion of the proprietorship into a general or limited partnership or corporation;

(B)          The sale of all of the assets of the registrant's business to another person.

(c)  Upon a change in organization as set forth in Paragraph (b) of this Rule, the Certificate of Registration shall become void and the registrant shall surrender its Certificate of Registration to the Commissioner within 30 days of such change.  If the entity which results from the change in the registrant's organization would like to engage in business as a facilitator in this State, it shall apply for a Certificate of Registration pursuant to Rule .0201 of this Section.

 

History Note:        Authority G.S. 53-253; 150B-21.2;

Eff. September 1, 1993.

 

SECTION .0300 - OPERATIONS, REPORTING REQUIREMENTS, NOTIFICATIONS

 

04 NCAC 03J .0301           CHECK CASHING SERVICES

A registrant which offers check cashing services shall not require a debtor to use such services for cashing a check which represents the proceeds of a refund anticipation loan.

 

History Note:        Authority G.S. 53-250(5); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0302           RECORD AND BOOKKEEPING REQUIREMENTS

(a)  A registrant shall maintain the following records with respect to each application for a refund anticipation loan in this State.  These records shall be kept in an office or offices of the registrant in this State.  This Rule shall not be interpreted to require a registrant to maintain one central office at which all records required herein are located:

(1)           Name of applicant for a refund anticipation loan;

(2)           Social security number of applicant for a refund anticipation loan;

(3)           Date of application;

(4)           Disposition of application, e.g., whether loan was funded, denied, etc.;

(5)           The gross amount of the refund anticipation loan;

(6)           The amount of the creditor fee;

(7)           The amount of the facilitator loan fee, if any;

(8)           The amount of the loan-related fees, if any;

(9)           The amount of the electronic filing fee;

(10)         The amount of refund anticipation loan proceeds disbursed by the registrant to the debtor;

(11)         The date on which refund anticipation loan proceeds were disbursed by the registrant to the debtor;

(12)         The identity of the registrant's executive officer, partner or employee originating the application for the refund anticipation loan;

(13)         The number, identity of drawer and amount of the check delivered to the debtor in payment of the proceeds of the refund anticipation loan;

(14)         A copy of Internal Revenue Service Form No. 8453 or any successor Form.

(b)  An original (where the drawer is the registrant) or a copy of all checks delivered by the registrant to each debtor in payment of the proceeds of the refund anticipation loan shall be available upon request by the Commissioner.

(c)  All records required by Paragraph (a) of this Rule may be maintained in any reasonable manner that the registrant selects.  Where applicable, the information required by Paragraph (a) of this Rule may be maintained by the retention of copies of forms used to comply with state or federal statutes, rules and regulations.

(d)  All records required to be kept pursuant to Paragraph (a) of this Rule may be maintained in the form of magnetic tape, magnetic disk or other form of computer, electronic or microfilm media.  However, records kept in this manner shall be convertible into clearly legible, tangible documents within 24 hours of request.  This time period shall be extended for an additional reasonable time by the Commissioner if the registrant demonstrates to the satisfaction of the Commissioner that it cannot provide the records requested within 24 hours of request.

(e)  All records required to be kept pursuant to Paragraph (a) of this Rule shall be kept for a period of at least three years.

 

History Note:        Authority G.S. 53-249; 53-250; 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0303           FILING AND POSTING OF FEE SCHEDULE

(a)  The fee schedule required by G.S. 53-249(a) shall be obtained from the Commissioner and shall be filed pursuant to Rule .0101(b) of this Subchapter.

(b)  The fee schedule referenced in Paragraph (a) of this Rule shall include the following fees:

(1)           The creditor fee;

(2)           The facilitator loan fee;

(3)           Any loan-related fee;

(4)           The electronic filing fee.

(c)  Pursuant to G.S. 53-249(c), the registrant shall display the following fees:

(1)           The creditor fee;

(2)           The facilitator loan fee;

(3)           All loan-related fees;

(4)           The electronic filing fee.

 

History Note:        Authority G.S. 53-249(a), (c); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0304           DISCLOSURES

(a)  For the purposes of G.S. 53-249(d)(1), (2), the registrant shall disclose to the debtor the following fees:

(1)           The creditor fee;

(2)           The facilitator loan fee;

(3)           All loan-related fees;

(4)           The electronic filing fee;

(5)           The total dollar amount of the fees disclosed pursuant to Subparagraphs (a)(1)-(3) of this Rule.

(b)  For the purposes of G.S. 53-249(d)(5), the term "appropriate taxing authority" shall mean the Internal Revenue Service.

(c)  All disclosures made pursuant to G.S. 53-249(d) shall be made on a form or forms detached from the application.  The registrant shall provide an applicant for a refund anticipation loan with a copy of all such disclosure forms.  In the case of an application for a refund anticipation loan by a married couple who are filing a joint tax return, the registrant may satisfy this provision by providing one copy of all such disclosure forms to the couple.

 

History Note:        Authority G.S. 53-249(d); 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0305           AMENDMENTS TO APPLICATION

(a)  A registrant shall maintain a current application with the Commissioner.  If there is a change in the information contained in the application, the registrant shall notify the Commissioner within 30 days of the effective date of such change.  Notification to the Commissioner shall be accomplished either by letter or by revision of the applicable pages of the application filed pursuant to Rule .0201 of this Subchapter.  If the registrant elects to comply with this Rule by revising its application, it shall obtain the applicable pages of the application from the Commissioner.

(b)  If a registrant decides to open a new office in this State at which it intends to facilitate refund anticipation loans, it shall notify the Commissioner of the opening of the new office at least 30 days before it begins business as a facilitator in the new office.  The notification shall comply with Paragraph (a) of this Rule and shall be accompanied by a fee made payable to the Commissioner in the amount set forth in G.S. 53‑248(a) for each new office in this State at which the registrant facilitates refund anticipation loans.

 

History Note:        Authority G.S. 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0306           CESSATION OF OPERATIONS

(a)  A registrant shall notify the Commissioner in writing of its decision to cease operations as a facilitator in this State.

(b)  A registrant shall surrender its Certificate of Registration to the Commissioner no later than 30 days after it has ceased operations in this State.

 

History Note:        Authority G.S. 53-253; 150B-21.2;

Eff. September 1, 1993.

 

SECTION .0400 - ENFORCEMENT

 

04 NCAC 03J .0401           HEARINGS

Any hearing conducted pursuant to G.S. 53-251 shall proceed in accordance with 4 NCAC 3B .0200, et seq., and G.S. 150B.

 

History Note:        Authority G.S. 53-251; 53-253; 150B-21.2;

Eff. September 1, 1993.

 

04 NCAC 03J .0402           EXAMINATIONS, AUDITS

The Commissioner may conduct or cause to be conducted an examination or audit of the books and records of any registrant at any time when considered proper.

 

History Note:        Authority G.S. 53-253; 150B-21.2;

Eff. September 1, 1993.