NOTES TO DECISIONS

1. Attorney's Fees Not Allowed.

Where a cemetery plot owner abandoned her cause of action for improper maintenance of a trust fund under T.C.A. § 46-2-305 (now T.C.A. § 46-1-205), a provision of the General Cemetery Act of 1968, T.C.A. §§ 46-1-101 to 46-2-411 (2000), the plot owner was precluded from seeking an award of attorney fees under T.C.A. § 46-2-307 (now T.C.A. § 46-1-305), through a separate petition of the district attorney general under T.C.A. § 46-2-306 (now T.C.A. § 46-1-304). Rogers v. Louisville Land Co., 367 S.W.3d 196, 2012 Tenn. LEXIS 221 (Tenn. Apr. 19, 2012).

NOTES TO DECISIONS

Decisions Under Prior Law

1. Constitutionality.

The 1984 amendment to former § 46-2-101 is not unconstitutional. Valley Forge Civic League v. Ford, 713 S.W.2d 665, 1986 Tenn. App. LEXIS 2789 (Tenn. Ct. App. 1986).

2. Purpose.

This section was intended to set forth the procedure a corporation qualified to engage in the cemetery business was to follow in developing a cemetery in or close to a town. Sullivan v. Harpeth Development Corp., 218 Tenn. 107, 401 S.W.2d 195, 1966 Tenn. LEXIS 552 (1966).

3. Dedication to Public Use.

The lands acquired for cemetery purposes, by a cemetery company incorporated under the general laws of this state, are thereby dedicated to a public use. Memphis S. L. R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 1906 Tenn. LEXIS 4 (1906).

The public purpose to which cemetery lands are dedicated is not defeated, and the use rendered a private one, by the fact that the incorporators may realize a profit out of the enterprise, nor because the charter or the law does not fix the price at which burial lots are to be sold. Memphis S. L. R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 1906 Tenn. LEXIS 4 (1906).

4. —Discrimination in Sales Prohibited.

Cemetery companies must sell to all who may apply “the same measure of accommodation for the same measure of money.” The power conferred by the charter upon the board of directors to sell the lots “in such manner” as they may determine has reference to the modes and terms of payment, the taking of securities therefor, and the like, and not to the persons to whom they shall sell. Memphis S. L. R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 1906 Tenn. LEXIS 4 (1906).

5. —Right to Mortgage.

The statutory power to mortgage in the charter of a cemetery company does not negate an intention that its property shall be devoted to public use, for the nature of the rights secured by the law and charter to lot owners is such as to forbid the mortgaging of anything except that part of the proceeds of lots sold which is not devoted to the maintenance and improvement of the cemetery. Memphis S. L. R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 1906 Tenn. LEXIS 4 (1906).

6. Condemnation for Other Uses.

Lands acquired by a cemetery company for cemetery purposes are not subject to condemnation for another and inconsistent public use. A railroad company is not entitled to condemn a right-of-way through a tract of land acquired for use as a cemetery by a company incorporated for that purpose, where the plans devised by the cemetery contemplate the use of the whole as a cemetery. Memphis S. L. R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 1906 Tenn. LEXIS 4 (1906).

7. Taxation of Real Estate.

The real estate held for use as a cemetery by such corporation is exempt from taxation. For scope of the taxing power, see Forest Hill Cem. Co. v. Creath, 127 Tenn. 686, 157 S.W. 412, 1913 Tenn. LEXIS 12 (1913).

8. —Exemption of Improvement Fund.

For purposes of taxation, the improvement fund of a cemetery company for profit is to be treated as the realty of which it was the product — exempt. Forest Hill Cem. Co. v. Creath, 127 Tenn. 686, 157 S.W. 412, 1913 Tenn. LEXIS 12 (1913).

9. Injunction.

This section did not confer on private citizens any standing in court to enjoin cemetery corporation from operation of cemetery for alleged failure of corporation to obtain permission of proper authorities to operate cemetery. Sullivan v. Harpeth Development Corp., 218 Tenn. 107, 401 S.W.2d 195, 1966 Tenn. LEXIS 552 (1966).

46-1-201. Purpose of part.

It is the purpose of this part to require cemetery companies in the state to carry at all times a sufficient improvement care trust fund to maintain, keep up and beautify the cemeteries, without commercializing the operation of the cemeteries, and to maintain a pre-need merchandise and services trust fund to ensure that the pre-need sale of cemetery merchandise and services is properly accounted for and administered.

Acts 1927, ch. 75, § 11; mod. Code 1932, § 3933; Acts 1968, ch. 557, §§ 2, 4; T.C.A. (orig. ed.), § 46-117; T.C.A., §§ 46-217, 46-2-117; T.C.A. § 46-2-301;  Acts 2006, ch. 1012, § 3; 2016, ch. 911, § 17.

Compiler's Notes. Acts 1927, ch. 75 was declared unconstitutional in Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111 (1931).

Former § 46-2-301 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 8.

46-1-202. Fidelity bond coverage — Exemptions.

1. Every cemetery company shall carry fidelity bond coverage of at least one hundred thousand dollars ($100,000) or a higher amount that the commissioner deems sufficient for officers and employees who handle money and securities.
2. The annual financial report required by § 46-1-214 to be filed with the commissioner shall indicate the amount of fidelity bond coverage, the classes of employees included, name of carrier and policy number, and the expiration date of coverage.
3. Cemeteries with combined funds, defined as cash, investments and assets, of less than forty thousand dollars ($40,000) may apply to the commissioner for an exemption from meeting the requirements of subsections (a) and (b). The commissioner may grant an exemption upon receiving satisfactory documentation demonstrating that all financial transactions, including withdrawals from the pre-need merchandise and services trust fund or operating funds, require the signatures of two (2) or more designated cemetery officials.
4. If any cemetery that is currently exempt should, at any time in the future, obtain combined funds in excess of forty thousand dollars ($40,000), the cemetery shall, within sixty (60) days of notification of the commissioner, obtain the fidelity bond required by subsections (a) and (b).

Acts 2006, ch. 1012, § 3.

46-1-203. Requirements for organization — Improvement care fund deposit.

1. No person or group of persons shall engage in the business of owning and operating a cemetery company, except as authorized by this chapter and chapter 2 of this title, and without first:
   1. If an entity required to register with or obtain any form of approval from the secretary of state, obtaining the registration or approval and retaining the registration and approval in an active status as long as the cemetery company is owned and operated by the applicant;
   2. Entering into a trust agreement in accordance with § 46-1-204; and
   3. Depositing either cash or a surety bond approved by the commissioner in its improvement care trust fund, in an amount to be determined according to the population of the county in which the cemetery is located, as estimated by the 1960 federal census or any subsequent federal census, as follows:

      10,000 or under  $ 40,000

      10,001 to 15,000  60,000

      15,001 to 20,000  80,000

      20,001 to 100,000  100,000

      100,001 or more  200,000.

2. The requirements of this section shall also be applicable to any existing cemetery company that establishes or opens a new cemetery, or an addition to an existing cemetery, on or after January 1, 2007.

Acts 1968, ch. 523, § 1 (17.05); 1968, ch. 557, § 1; impl. am. Acts 1971, ch. 137, § 1; 1976, ch. 773, § 2; T.C.A., § 46-105; Acts 1986, ch. 693, §§ 1, 6; T.C.A. § 46-1-105; Acts 2006, ch. 1012, § 3.

Compiler's Notes. Former § 46-1-105 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

46-1-204. Improvement care trust fund.

1. 1. Every cemetery company engaged in the business of selling, leasing, or renting lots, grave spaces, crypts, niches, and burial rights in this state shall establish and forever maintain an improvement care trust fund to provide for the improvement, care, and maintenance of the following:
      1. Each separate cemetery;
      2. Each separate geographical location of each cemetery owned and operated by the cemetery company; and
      3. Each separate geographical location of a funeral home, or other individual or entity, that has niches or other areas or devices of interment for sale, lease, or rent.
   2. The trust fund required by this subsection (a) shall be established by executing a written trust agreement with a trust company approved by the commissioner, or with a state or national bank, or with savings and loan associations having insurance of accounts as required by law; provided, that a cemetery company may change the trustee of its trust fund by providing written notice to the commissioner no later than thirty (30) days prior to the change, along with sufficient evidence, as determined by the commissioner, that the trustee will be able to comply with the requirements of this chapter. If the commissioner determines that the evidence submitted is insufficient to ensure that the trustee will be able to comply with the requirements of this chapter, the commissioner may refuse to allow the cemetery company to change the trustee.
2. The written trust agreement shall specifically state the following:
   1. The nature and extent of care to be furnished;
   2. That the care shall be furnished only to the extent that the net income derived from the amount deposited in the trust permits; and
   3. 1. That within thirty (30) days of a transaction, not less than the following minimum amounts will be set aside and deposited in trust by the cemetery company:
         1. For land, but not including lawn crypts or land donated without charge for the purpose of interring the remains of a deceased person who was under eighteen (18) years of age at the time of death, one dollar ($1.00) per square foot of the land sold or twenty percent (20%) of the total transaction amount for the land, whichever is greater;
         2. For a lawn crypt, twenty percent (20%) of the total transaction amount for the land excluding the lawn crypt or fifty dollars ($50.00), whichever is greater;
         3. For a mausoleum, crypt, niche, or any memorial other than a commodity, not less than ten percent (10%) of the total transaction amount for each item;
         4. For the special care of any lot, grave, crypt, or niche or of a family mausoleum, memorial, marker or monument, the full amount received;
         5. For a commodity, the full amount received for memorial care; and
         6. For the sale of land for non-cemetery purposes, the commissioner may order the cemetery company disposing of the land to deposit up to one hundred percent (100%) of the net proceeds of the disposition in the cemetery's improvement care trust fund or the cemetery's pre-need merchandise and services trust fund, or both, within thirty (30) days after the disposition, if there is a deficiency in either trust fund. The order may not exceed the actual amount of the deficiency in the improvement care trust fund or the pre-need merchandise and services trust fund, or both;
      2. Notwithstanding anything in this chapter to the contrary, any cemetery company depositing more than the required amounts in its improvement care trust fund, in accordance with prior statutory requirements or its charter or contracts, shall be authorized to continue to do so; provided, that deliberate advance payments made to the improvement care fund shall not be credited toward any future liability, except that a cemetery company may credit any payment, which was deposited into the improvement care trust fund from a contract that was subsequently canceled, toward any future liability as long as the credit is applied within twelve (12) months from the date of the cancellation date.
3. Every cemetery company shall be permitted to charge a fee for the memorial care of every commodity installed in the cemetery. The fee shall not exceed twenty-three cents (23¢) per square inch of the ground covered by the commodity. At the end of each calendar year, the cemetery company shall be permitted to increase its fee for the memorial care of commodities by no more than the percentage representing the consumer price index at the end of that calendar year. The fee charged for memorial care of a commodity shall not exceed the fee charged by the cemetery company for installation of the commodity. The charge for memorial care of a commodity shall be the same to all, regardless of the source of the commodity.
4. The setting aside and deposit provided for in subdivision (b)(3)(A) shall be made by the cemetery company not later than thirty (30) days after the close of the month in which the final payment on the purchase price of each lot, grave space, crypt or niche, the final payment for the general or special care of the lot, grave space, crypt or niche, the final payment for the memorial care of a commodity, or the final payment of a family mausoleum, memorial, marker or monument is received. The amounts deposited shall be held by the trustee of the improvement care funds of the cemetery in trust and perpetuity for the specific purposes stated in the written agreement. All deposits with a trustee by a cemetery company under this part shall be in cash only.
5. 1. As used in this subsection (e), unless the context otherwise requires:
      1. “Net earnings” means:
         1. All net income, excluding capital gains; or
         2. An amount not exceeding five percent (5%) of the fair market value of the trust as of the last day of the trust fiscal year immediately preceding the distribution year. This amount is not reduced by taxes or fees, unless the fees exceed two and one-half percent (2.5%) of the market value of the trust as of the last day of the trust fiscal year immediately preceding the distribution year. If any fees exceed two and one-half percent (2.5%) of the market value of the trust as of the last day of the preceding fiscal year, then the amount of the disbursement shall be reduced by the excess; and
      2. “Net income” means the collected dividends, interest and other income of the trust reduced by taxes on income and fees.
   2. The net earnings of each improvement care trust fund shall be paid to and shall be used and expended by the owners or officers and directors of the cemetery company, or by the trustee of the improvement care trust fund while the cemetery is not being operated by its owner, for the improvement care, as defined in § 46-1-102, of the cemetery or separate geographical location of the cemetery for which the fund was established and for no other purpose.
   3. While a cemetery for which an improvement care trust has been funded is not being operated by its owner, the trustee may disburse net income from the trust to compensate any responsible person for work performed or expenses incurred in the improvement care of the cemetery. In investing these funds, the trustee shall exercise the judgment and care under the circumstances then prevailing that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income and capital appreciation as well as the probable safety of their capital. Within the limitations of the standard in this subdivision (e)(3), subject to any express provisions of limitations contained in any particular trust instrument, the trustee is authorized to acquire every kind of property, real, personal or mixed, and every kind of investment, specifically including, but not limited to, corporate obligations of every kind, and stocks, preferred or common, that persons of prudence, discretion and intelligence acquire for their own accounts.
   4. 1. A cemetery owner may select a method to calculate the net earnings of a trust for the first fiscal year in which this subsection (e) is effective, by delivering written instructions to the trustee of the fund no later than sixty (60) days prior to the end of that fiscal year.
      2. A cemetery owner may select a method of calculation to be used for any given fiscal year by using either subdivision (e)(1)(A)(i) or (e)(1)(A)(ii). A cemetery owner shall provide the trustee with written instructions of which method of calculation has been chosen no later than the last day of the preceding fiscal year. In the event that the method of calculation chosen by the cemetery owner prior to the start of the fiscal year would result in lower disbursements than would the other calculation, then the cemetery owner may provide the trustee with written instructions no later than sixty (60) days prior to the end of the fiscal year to change the method of calculation.
      3. In the event that the trustee does not receive written instructions for a given fiscal year from the cemetery owner informing the trustee of the method of calculation chosen or the trustee has never received any written instructions of the method of calculation chosen, then the trustee shall calculate and disburse funds in accordance with subdivision (e)(1)(A)(i).
      4. 1. In order to withdraw up to five percent (5%) of a trust that is already in existence on July 1, 2009, in accordance with subdivision (e)(1)(A)(ii), the current market value of the trust after the withdrawal shall be greater than .90 x [MV(T)+C]. T represents July 1, 2009. MV represents the principal market value of the trust at T. C represents the total contributions made to the trust principal from T to the date that the method of calculation is selected.
         2. In order to withdraw up to five percent (5%) of a trust that is established after July 1, 2009, in accordance with subdivision (e)(1)(A)(ii), the current market value after the withdrawal shall be greater than .90 x [MV(N)+C]. MV(N) represents the principal market value of the trust that will be determined at the end of the trust's fiscal year. C represents contributions made to the principal after the first completed fiscal year.
         3. Disbursements from the trust that are calculated pursuant to subdivision (e)(1)(A)(ii) shall be made on a monthly, quarterly, semiannual or annual basis.
      5. In order for a cemetery owner to receive distributions from the trust that are calculated by using either method of calculation in subdivision (e)(1)(A)(i) or (e)(1)(A)(ii), the cemetery owner shall:
         1. Be current on payment of the annual registration fee. The cemetery owner shall certify to the trustee on forms provided by the commissioner that the cemetery is registered with the department; and
         2. Be current on required deposits to the trust or make payments on any arrearages through special arrangements with the commissioner. At the commissioner's discretion, the commissioner may allow cemetery owners to make payments on arrearages. The cemetery owner shall certify to the trustee on forms provided by the commissioner that the cemetery owner is current on required deposits or is making payments on arrearages.
6. No cemetery company shall commingle the improvement care funds for the benefit of one (1) cemetery with improvement care funds for the benefit of any other cemetery or with any other funds, and each separate geographical site of a cemetery shall have a separate improvement care fund. However, improvement care funds from more than one (1) cemetery may be commingled by trustees for investment purposes, so long as an accurate accounting is maintained for each individual fund.
7. The improvement care trust fund shall not be a part of the assets of any cemetery company operating under this part and the improvement care trust fund shall not be subject to the debts of the cemetery company.
8. For purposes of this section, “cemetery company” includes any individual or entity that leases or rents crypts and niches, even if the individual or entity is not organized, owning, or controlling cemetery lands or property nor conducting the business of a cemetery.

Acts 1927, ch. 75, § 1; mod. Code 1932, § 3923; Acts 1953, ch. 44, § 1; 1968, ch. 557, § 2; T.C.A. (orig. ed.), § 46-110; Acts 1976, ch. 773, § 7; 1978, ch. 605, § 1; 1978, ch. 708, § 6.04; T.C.A., §§ 46-210, 46-2-110; modified; Acts 1980, ch. 780, §§ 5-7; impl. am. Acts 1980, ch. 780, § 1; 1986, ch. 693, §§ 12-17; 1996, ch. 714, §§ 1, 2; 2005, ch. 217, § 1; T.C.A. § 46-2-302; Acts 2006, ch. 1012, § 3; 2009, ch. 356, §§ 3, 4; 2015, ch. 288, §§ 3-6.

Compiler's Notes. Acts 1927, ch. 75 was declared unconstitutional in Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111 (1931).

Former § 46-2-302 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

Attorney General Opinions. Liability insurance for trust fund fiduciaries, OAG 97-013, 1997 Tenn. AG LEXIS 19 (2/6/97).

46-1-205. Payment of dividends — Restrictions — Recovery.

No dividend, salary or compensation of any description shall be paid to any stockholder of any cemetery company or any cemetery operator until the company has first set up the improvement care trust fund in the manner and amount provided in § 46-1-204, and no dividend, salary or compensation shall be paid to any stockholder of any cemetery company or any cemetery operator while any improvement care trust fund is deficient because of not having received the payments required by § 46-1-204; provided, that a receiver, as provided for in this chapter, may pay the salaries and compensation that the receiver deems necessary to restore the cemetery to a sound financial condition. Any dividend, salary or commission paid in violation of this section shall be recoverable at the suit of the commissioner, any lot owner, or descendant or next of kin of a lot owner, in the circuit or chancery court, and all stockholders of the cemetery company and cemetery operators receiving the unlawful dividends, salaries or compensation may be joined in the same suit. The proceeds of the suit or claim shall be added to the improvement care trust fund to assist in making the fund current.

Acts 1927, ch. 75, § 6; mod. Code 1932, § 3928; Acts 1968, ch. 557, §§ 2, 4; T.C.A. (orig. ed.), § 46-111; Acts 1976, ch. 773, § 8; T.C.A., §§ 46-211, 46-2-111; T.C.A., § 46-2-305; Acts 2006, ch. 1012, § 3.

Compiler's Notes. Acts 1927, ch. 75 was declared unconstitutional in Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111 (1931).

Former § 46-2-305 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-206. Sales of pre-need cemetery merchandise and services.

1. Except as provided in this section, no cemetery company shall directly or indirectly offer to or enter into a contract for the sale of cemetery merchandise or services to be used or performed in connection with the interment or commemoration of a deceased human being, if delivery of the cemetery merchandise, other than for incidental additions, such as dates, scrolls, or other supplementary matter representing not more than ten percent (10%) of the total contract price, or performance of the services is to be made more than sixty (60) days after the receipt of any payment under the contract of sale. This subsection (a) includes, but is not limited to, the pre-need sales of cemetery merchandise and services.
2. 1. If a cemetery company enters into a contract for the sale of cemetery merchandise or services that provides for delivery within sixty (60) days, and the cemetery company fails inexcusably to deliver cemetery merchandise or services within one hundred twenty (120) days after the receipt of any payment under the contract, the cemetery company shall deposit to a pre-need merchandise and services trust account or a pre-need trust account established pursuant to § 46-1-207 all moneys received under the contract.
   2. 1. For purposes of this part, “delivery” includes physical delivery of the cemetery merchandise to the buyer or the cemetery company has paid its supplier for the cemetery merchandise, the supplier has caused the cemetery merchandise to be manufactured and stored, and has caused certificate of ownership of the cemetery merchandise to be sent to the purchaser, and has agreed to ship the cemetery merchandise upon the purchaser's request of the cemetery company; provided, that the cemetery company set aside funds for the installation of the cemetery merchandise pursuant to § 46-1-207.
      2. For the purposes of this part, no person, firm or corporation will be deemed a supplier to a Tennessee cemetery company, unless it:
         1. Permanently and unalterably identifies all cemetery merchandise with the name of the contract beneficiary;
         2. Submits, upon request of the commissioner, a report of all cemetery merchandise that has been purchased through a Tennessee cemetery company and has been placed in storage;
         3. Permits the commissioner or the commissioner's designee, at any time, to examine stored cemetery merchandise that was purchased through a Tennessee cemetery company and to examine any document pertaining to the cemetery merchandise;
         4. Submits evidence to the cemetery company of a bond insuring the existing and good title of any cemetery merchandise due any contract beneficiary purchased through a Tennessee cemetery company; and
         5. Submits evidence to the cemetery company ensuring that all cemetery merchandise purchased through a Tennessee cemetery company and being stored by the supplier is insured for casualty, theft or other loss.
3. Except as provided in subsection (d), nothing in this part shall apply to contracts for the sale of funeral merchandise and services, such contracts being regulated under title 62, chapter 5, and other general laws of this state.
4. A cemetery company may offer a pre-need sales contract that covers funeral merchandise as defined in § 62-5-403, or a pre-need sales contract that covers both cemetery merchandise as defined in § 46-1-102 and funeral merchandise, if:
   1. The cemetery company uses a contract issued by the commissioner for general use. If the commissioner has not issued a contract pursuant to this subdivision (d)(1), then the cemetery company may use a contract that has been approved by the commissioner. To submit a contract for approval, the cemetery company shall submit a request for approval to the commissioner prior to the execution of the contract. If the cemetery company has not received approval from the commissioner within sixty (60) days of submitting the request or receives no disapproval of the contract within the sixty-day period, then the contract shall be deemed approved; provided, that the commissioner may disapprove a previously approved contract if the contract violates this section upon giving notice and an opportunity for a hearing to the pre-need seller;
   2. The cemetery company deposits all moneys received for funeral merchandise as defined in § 62-5-403 under the contract in a pre-need merchandise and services trust account or a pre-need trust account established pursuant to § 46-1-207;
   3. The cemetery company complies with the requirements of selling funeral merchandise as provided in the Tennessee Prepaid Funeral Benefits Act, compiled in title 62, chapter 5, part 4; and
   4. The cemetery company submits a price list to the commissioner for the funeral merchandise as defined in § 62-5-403.

Acts 1979, ch. 307, § 4(A); T.C.A., § 46-2-202; Acts 1986, ch. 693, § 20; T.C.A. § 46-2-402; Acts 2006, ch. 1012, § 3; 2016, ch. 911, §§ 5, 6, 16, 18.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9.

46-1-207. Pre-need sales contracts — Pre-need trust accounts.

1. A sales contract shall be executed in duplicate, and a signed copy given to the purchaser. The contract shall contain the names of the purchaser and the seller and the name of any person, if other than the purchaser, who is to receive the cemetery merchandise or services contracted for, and a description of the cemetery merchandise and services shall appear in the contract.
2. 1. A pre-need sales contract shall be enforceable against the purchaser, only if:
      1. The seller is a cemetery company owning or operating a duly registered cemetery under this chapter; and
      2. The seller, by the twentieth day of the month following the month of receipt of any consideration paid pursuant to the contract, deposits an amount equal to the procurement costs of the cemetery merchandise and services identified in the sales contract, plus twenty percent (20%) of the costs, in a special general fund trust account in a state or national bank authorized by law to administer trust funds. Upon finding that a cemetery company has failed to appropriately and timely deposit into any trust, the commissioner may, in addition to or in lieu of any other disciplinary action, require that deposits be made within a shorter time frame, after receipt of the funds, for a period not more than two (2) years after the finding of a violation. If the sales contract provides for payment on an installment or deferred basis, the seller may elect to pay into the trust account the pro rata portion relating to procurement cost of each installment or deferred payment received, or to pay one hundred twenty percent (120%) of the procurement cost computed as of the date of sale.
   2. A separate general trust account shall be established and maintained for each cemetery owned or operated by a cemetery company, and each account shall bear the additional legend, “pre-need merchandise and services trust account.”
3. All deposits required by this part shall be pursuant to a written trust agreement with the trustee that holds the funds. The trust agreement shall:
   1. State the circumstances under which funds will be deposited and disbursed;
   2. Specify the trustee's fees, if any; and
   3. Provide that the trustee shall furnish the trustor an accounting of general trust balances and earnings at least annually.
4. Specific funds deposited in the trust account shall be identified or earmarked by contract number and the name of the purchaser. Nothing shall prevent the trustee from commingling the deposits in any trust fund for purposes of the management of the trust fund or the investment of funds in the trust fund. The commissioner has the discretion to audit the records and the sources of the records tendered by the trustee and has full power, including power of subpoena, to inspect the records of the trustor. Failure to comply with the subpoena of the commissioner is a Class A misdemeanor.
5. 1. For purposes of this part, procurement costs shall be the costs of the cemetery merchandise and services as of January 1 of the year in which the pre-need sales contract is executed. These costs shall be determined and substantiated by a wholesale price list of a manufacturer or supplier of the cemetery merchandise so sold or by a cost analysis or itemization of the cost of construction of lawn or mausoleum crypts sold by the cemetery company. The procurement costs so determined shall be the basis for the deposits required by subsection (b) and shall be adjusted and verified annually to the commissioner.
   2. For the purposes of this part, procurement costs for interment services, including, but not limited to, entombment and inurnment services, shall not be less than the following: one hundred sixty-five dollars ($165) for interment services, one hundred ten dollars ($110) for entombment services, and forty-four dollars ($44.00) for inurnment services. The basis for determining the procurement costs for these interment services shall be provided to the commissioner annually and verified at the time of audit. The commissioner shall increase the minimum costs by the consumer price index of each calendar year beginning on January 1, 2007.
6. All deposits required by this part shall be in cash only.
7. 1. With respect to pre-need sales of mausoleum crypts, the seller may, in lieu of depositing one hundred twenty percent (120%) of procurement costs, elect to set aside a crypt in inventory comparable to each crypt sold prior to construction; provided, that:
      1. The seller establishes and maintains a record of crypts in inventory reduced by the number set aside under this subsection (g); and
      2. The sales contract conveys interment rights or temporary interment rights pending completion of the crypt sold prior to construction.
   2. Subject to the setting aside provided for in subdivision (g)(1), the seller shall at all times maintain its pre-need merchandise and services trust account in the amount required by subsection (b).
8. The seller shall offer the purchaser the option to pay any applicable sales or use tax on the selected cemetery merchandise or services at the time the contract is entered into. If the purchaser chooses to pay the tax, it shall be remitted to the department by the seller, and shall be considered full payment for the sales or use tax on the selected cemetery merchandise or services despite any changes in tax rate or cost of cemetery merchandise or services that may occur by the time of actual use. If the purchaser later cancels the pre-need contract, the amount of tax paid shall be refunded by the seller who may then claim that amount as a credit against any sales or use tax then due from the seller.

Acts 1979, ch. 307, §§ 4(B), 4(D); T.C.A., § 46-2-203; Acts 1986, ch. 693, §§ 2, 21; 1989, ch. 591, §§ 1, 6; 1996, ch. 958, § 1; 2002, ch. 685, § 1; T.C.A., § 46-2-403; Acts 2006, ch. 1012, § 3; 2016, ch. 911, §§ 8, 16.

Compiler's Notes. Acts 2002, ch. 685, § 2 provided that, notwithstanding any other provision of law to the contrary, no operator or business licensed pursuant to title 46 shall violate any provision of the Federal Trade Act, U.S. Code title 15, relative to the sale of prearranged funeral plans or burial services.

Former § 46-2-403 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9.

46-1-208. Disposition of trust funds.

1. The pre-need cemetery merchandise and services trust funds, including the income from the trust funds, after payment of any appropriate trustee fees, commissions and costs, shall remain intact until the cemetery merchandise is delivered or the services performed as specified in the sales contract. However, a seller may, upon proper certification to the trustee, withdraw specific funds previously deposited if no deposit was required by § 46-1-207. Upon complete performance of the services or delivery of the cemetery merchandise specified in the sales contract, the seller shall certify the performance of the services or the delivery of the cemetery merchandise to the trustee by affidavit. Upon the receipt of the certification, the amount of specific funds in the trust account identified to the delivered cemetery merchandise or the performed services, including any income or interest earned from the specific funds and not paid pursuant to subsection (b), shall be paid to the seller. The trustee may rely upon all proper certifications required to be made pursuant to this subsection (a), and shall not be liable to anyone for such reliance.
2. Notwithstanding subsection (a), the trustee shall pay the seller, at the seller's option, the net income accumulated as of the end of any fiscal year; provided, that the trust assets after disbursement of income shall not have a market value of less than one hundred twenty percent (120%) of the aggregate procurement costs of all cemetery merchandise and services for which deposits are held in trust, subject to proration allowed under § 46-1-207. The seller shall exercise its option by delivering to the trustee a notarized certification of the procurement costs as of the first day of the seller's current fiscal year.
3. Any specified funds held on behalf of a purchaser that have been dormant for a period of seventy-five (75) years since the time of deposit or last withdrawal against those moneys, may be considered to be closed accounts against which no further demand will be made by the purchaser, and the principal amount may be paid by the trustee to the seller's improvement care trust.

Acts 1979, ch. 307, § 4(C); T.C.A., § 46-2-204; Acts 1986, ch. 693, § 22; T.C.A. § 46-2-404; Acts 2006, ch. 1012, § 3; 2016, ch. 911, § 16.

Compiler's Notes. Former § 46-2-404 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9.

46-1-209. Satisfaction of contract — Cancellation of contract — Substitution of cemetery merchandise or services.

1. If for any reason a cemetery company that has entered into a contract for the sale of cemetery merchandise or services and has made the deposit into the trust funds as required in this part, cannot or does not provide the cemetery merchandise or perform the services called for by the contract within a reasonable time upon request, the purchaser, or the purchaser's heirs or assigns, or duly authorized representatives, shall have the right to provide the cemetery merchandise or services; and, having done so, shall be entitled to receive the deposit to the credit of that particular contract. Written instructions to the trustee by the cemetery company directing the trustee to refund the amount of money on deposit, or an affidavit by either the purchaser, or one (1) of the purchaser's heirs or assigns, or duly authorized representative, stating that the cemetery merchandise or services were not provided, shall be sufficient authority for the trustee to make refund of the funds on deposit to the person submitting the affidavit. However, nothing in this subsection (a) shall relieve the cemetery company from any liability for nonperformance of the contract.
2. If the purchaser is in default on making payments under the sales contract for a period of ninety (90) consecutive days, the cemetery company shall have the right to cancel the contract and to withdraw from the trust fund the entire balance to the credit of the defaulting purchaser's account as liquidated damages. In that event, the trustee shall deliver the balance to the cemetery company upon its certification of the default by the purchaser; and upon receiving the certification, the trustee may rely on the certification and shall not be liable to anyone for such reliance.
3. In the event the purchaser, or the purchaser's heirs or assigns, or authorized representatives, desire to substitute cemetery merchandise or services different from that which is specified in the sales contract because of changed conditions or practices in burial customs, the cemetery company shall give credit to the extent of all moneys already paid toward the payment of the substituted cemetery merchandise or services; provided, that the original sales contract has not been completed.

Acts 1979, ch. 307, § 4(E); T.C.A., § 46-2-206; T.C.A., § 46-2-406; Acts 2006, ch. 1012, § 3; 2015, ch. 288, § 7; 2016, ch. 911, § 16.

Compiler's Notes. Former § 46-2-406 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-210. Waiver invalid.

Any provision of any contract for the sale of cemetery merchandise or the performance of services that purports to waive any of this part shall be null and void.

Acts 1979, ch. 307, § 4(G); T.C.A., § 46-2-208; T.C.A., § 46-2-408; Acts 2006, ch. 1012, § 3; 2016, ch. 911, § 16.

Compiler's Notes. Former § 46-2-408 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-211. Part applicable to mausoleums, crypts and columbariums.

This part also applies to all corporations, persons, or businesses, except those corporations, persons or businesses owning and operating a cemetery that maintains an improvement care trust fund, and in which the mausoleum is to be, is being, or has been constructed, engaged in the construction and/or sale of mausoleums, crypts, columbariums or other structures constructed for public use, space in which is offered to the public by sale, and constructed wholly or partially above the surface of the ground or partly covered with earth or sod, for the purpose of permanently containing the dead or cremated remains of human bodies.

Acts 1963, ch. 202, § 1; 1968, ch. 557, § 2; T.C.A. (orig. ed.), § 46-120; T.C.A., §§ 46-220, 46-2-120; T.C.A., § 46-2-303; Acts 2006, ch. 1012, § 3.

Compiler's Notes. Former § 46-2-303 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-212. Sale of unconstructed or unfinished mausoleums, crypts and columbariums.

Any corporation, person, or business, except those corporations, persons or businesses owning and operating a cemetery that maintains an improvement care trust fund, and in which the mausoleum is to be, is being, or has been constructed, engaged in the public sale of burial space in a mausoleum, crypt or columbarium that is not completely constructed at the time of a sale, shall withhold the first seventy-five percent (75%) of the proceeds of the sale, to be placed in trust or invested under this part, until such time as the mausoleum, crypt, or columbarium, space in which was sold, is completed. After completion, the improvement care trust fund provided in § 46-1-204 shall apply to the completed structure.

Acts 1963, ch. 202, § 1; 1968, ch. 557, § 2; T.C.A. (orig. ed.), § 46-121; T.C.A., §§ 46-221, 46-2-121; T.C.A. § 46-2-304; Acts 2006, ch. 1012, § 3.

Compiler's Notes. Former § 46-2-304 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-213. Construction of crypts.

A cemetery company shall commence construction or development of any undeveloped ground or building in which lawn or mausoleum crypts are to be constructed and in which sales, contracts for sale, or agreements for sales, are being made, within thirty-six (36) months after the date of the first sale. The construction or development of the undeveloped ground or building shall be completed within five (5) years after the date of the first sale. Failure to complete construction, as represented at the time of the first sale, shall entitle any purchaser, on demand, to recover all sums paid on the purchase price, plus interest at the rate of six percent (6%) per annum.

Acts 1979, ch. 307, § 4(D); T.C.A., § 46-2-205; T.C.A., § 46-2-405; Acts 2006, ch. 1012, § 3.

Compiler's Notes. Former § 46-2-405 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-214. Trust account reports required — Inspection of trust account records.

1. 1. Not later than seventy-five (75) days after the end of each of its fiscal years, each cemetery company that engages in sales requiring the establishment of a trust account under this part shall file with the commissioner, on the prescribed form, a report containing:
      1. Beginning balances of deposited funds and accumulated earnings in the trust account;
      2. The deposits to the trust account during the year;
      3. The amount of earnings during the year;
      4. The amounts of the withdrawals of deposits and earnings remaining in trust at the end of the year; and
      5. The aggregate procurement costs, including transportation and labor, of all cemetery merchandise and services sold pre-need and yet to be delivered after the report year end; provided, that deferred or installment payments may be prorated to the extent allowed under § 46-1-207.
   2. The commissioner may require a cemetery company to submit reasonably detailed information in support of any report required under this section.
   3. An additional report shall not be required based on the establishment of trusts pursuant to this title and the Tennessee Prepaid Funeral Benefits Act, compiled in title 62, chapter 5, part 4. In such instance, only one (1) report shall be required.
2. Not later than seventy-five (75) days after the end of the cemetery company's fiscal year, each trustee appointed under this part shall file with the commissioner, on the prescribed form, a report on each trust account established pursuant to this part. However, an additional report shall not be required based on the establishment of trusts pursuant to this title and the Tennessee Prepaid Funeral Benefits Act. In such instance, only one (1) report shall be required. The report shall contain the following information:
   1. The combined beginning balance of deposits and earnings in trust;
   2. The aggregate amount of deposits received during the report year;
   3. The amount of the earnings added to the trust account during the year;
   4. The aggregate amount of deposits and earnings disbursed during the report year; and
   5. The aggregate amount of the deposits and earnings remaining in trust at the end of the report year.
3. For late filing of a report required under this section, a cemetery company shall pay a late penalty not to exceed one hundred dollars ($100) for each month or fraction of a month that the report is late. The commissioner is authorized to establish the amount of the late penalty by promulgating rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The commissioner may, in extenuating circumstances, grant an extension of time for filing a report and waive the penalty, on receipt of a written request before the report is overdue.
4. If, on or before the date that a report would otherwise be due, a cemetery company notifies the commissioner that it has delivered all cemetery merchandise and services due for which a trust account was required, the company need not file a report.
5. The commissioner shall promulgate and may, from time to time, revise rules and regulations for carrying out the intentions of this part, in accordance with the Uniform Administrative Procedures Act.
6. The commissioner shall require an audit at least once every two (2) years, or more frequently if the commissioner deems it necessary, to ensure that each person, firm, or corporation that offers or enters into a contract for the sale of cemetery merchandise or services under this chapter will be able to perform its contract with the purchaser.
7. The necessary expenses for any examination pursuant to this section shall be paid by the cemetery company at a rate set by the commissioner.

Acts 1986, ch. 693, § 24; 1992, ch. 922, § 7; 1997, ch. 400, § 4; T.C.A. § 46-2-410; Acts 2006, ch. 1012, § 3; 2016, ch. 911, §§ 11, 12, 16.

Compiler's Notes. Former § 46-2-410 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

Cross-References. Treble damages upon proof of fraud relative to contract for future services, § 62-5-409.

46-1-215. Financial reports.

1. Within seventy-five (75) days after the end of the calendar year or its fiscal year and within seventy-five (75) days on an annual basis thereafter, each cemetery company shall file with the commissioner a report of its condition, on forms provided by the commissioner, which report shall contain the following information:
   1. The name of the cemetery company, the date of incorporation, if incorporated, and the location of the cemetery or cemeteries owned by the company;
   2. The amounts of sales of cemetery lots, grave spaces, mausoleum crypts or niches for which payment has been made in full or certificates or deeds of conveyance issued on cemetery lots, grave spaces, crypt or niches during the preceding calendar or fiscal year;
   3. The amounts received for the special care of any lots, graves, crypts, niches, family mausoleums, memorials, markers or monuments;
   4. The amounts received for the memorial care of commodities;
   5. The amounts paid into the permanent improvement care fund, and the income earned from the fund during the preceding fiscal year;
   6. The number of acres embraced within each cemetery and held by the cemetery company for cemetery purposes;
   7. The names and addresses of the owners of the cemetery company or the officers and directors of the corporation, and any change of control that has occurred during the past calendar or fiscal year; and
   8. The total of all expenditures of income from the improvement care trust fund.
2. 1. Within forty-five (45) days after the end of the calendar or fiscal year of the cemetery company, the trustee of the improvement care fund of the cemetery company shall file with the commissioner a financial report with respect to the trust fund on forms that are obtained from the commissioner. The report shall include, but not be limited to, specific disclosure of the following:
      1. The current value of the assets, on both a book value and market value basis, and liabilities of the trust as of the beginning and end of the fiscal year of the trust;
      2. All sales, exchanges, or leases of any property between the trust and the cemetery company, any owner of an interest in the cemetery company, any officers or directors or managers of the cemetery company, or immediate family of any such person;
      3. Any loans by the trust or fixed income obligations due the trust that are classified as uncollectible or in default as of the close of the fiscal year of the trust;
      4. Whether the trust at any time held twenty percent (20%) or more of its assets in any single security, debt, mortgage, parcel of real estate, or partnership/joint venture interests;
      5. Whether the trust at any time engaged in any transaction or series of related transactions involving twenty percent (20%) or more of the current value of the trust; and
      6. Whether there were any purchases of nonpublicly traded securities by the trust, the value of which was set without an appraisal by an independent third party.
   2. The commissioner may require the trustee to make additional financial reports that the commissioner deems necessary.
3. For late filing of a report required under this section, a cemetery company shall pay a late penalty not to exceed one hundred dollars ($100) for each month or fraction thereof that the report is late. The commissioner is authorized to establish the amount of the late penalty by promulgating rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
4. The commissioner may promulgate rules and regulations that are reasonably necessary to require cemeteries to submit audited financial statements or other financial reports prepared by independent certified public accountants.

Acts 1927, ch. 75, § 3; mod. Code 1932, § 3924; Acts 1961, ch. 44, § 2; 1968, ch. 557, § 2; T.C.A. (orig. ed.), § 46-106; Acts 1973, ch. 272, § 7; 1976, ch. 773, § 5; T.C.A., §§ 46-206, 46-2-106; Acts 1980, ch. 780, § 4; 1995, ch. 203, § 2; 1995, ch. 485, §§ 1, 6; 1997, ch. 374, § 1; T.C.A., § 46-2-202; Acts 2006, ch. 1012, § 3; 2009, ch. 356, § 5.

Compiler's Notes. Acts 1927, ch. 75 was declared unconstitutional in Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111 (1931).

Former § 46-2-202 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

Cross-References. Annual trust fund reports, § 46-1-214.

46-1-216. Verification of reports — Public records.

The annual reports required to be filed in this part shall be duly verified under oath by the owner of the cemetery company and the annual reports by the trustee of the trust fund. Upon filing, the reports shall become public records.

Acts 1927, ch. 75, § 3; mod. Code 1932, § 3925; Acts 1961, ch. 44, § 3; 1968, ch. 557, § 2; T.C.A. (orig. ed.), § 46-107; T.C.A., §§ 46-207, 46-2-107; Acts 1995, ch. 485, § 2; 1997, ch. 374, § 2; T.C.A., § 46-2-203; Acts 2006, ch. 1012, § 3.

Compiler's Notes. Acts 1927, ch. 75 was declared unconstitutional in Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111 (1931).

Former § 46-2-203 was transferred to this section by Acts 2006, ch. 1012, § 3, effective January 1, 2007.

46-1-217. Agreement with owners of real property to conduct improvement care to graves located on property.

Interested persons, as that term is defined in § 46-4-102, may enter into an agreement with the owners of real property that is not designated as a cemetery, but does have human remains with marked and identifiable graves, to conduct improvement care, as that term is defined in § 46-1-102, to the graves located on the real property. This section shall not be construed to require real property owners to provide the improvement care.

Acts 2006, ch. 1012, § 9.

46-1-218. Net earnings of improvement care trust fund sufficient for permanent maintenance and upkeep.

1. When the improvement care trust fund has become sufficiently large that the net earnings, as defined in § 46-1-204, will ensure the permanent maintenance and upkeep of the cemetery, and the officers and board of directors are of the opinion that it is no longer necessary to continue to set aside twenty percent (20%) to the improvement care trust fund, or any part thereof, for the purpose of maintaining, keeping up and beautifying the cemetery, the board of directors may, in a regular or special meeting, pass a resolution declaring that belief.
2. The cemetery company shall then be authorized to file a petition in the name of the company in the chancery court of Davidson County stating the passage of the resolution and other pertinent facts as it may desire, and asking that the cemetery company no longer be required to continue to make contributions to the improvement care trust fund or that the contributions be reduced. The petition shall be filed against the commissioner of commerce and insurance. The petition shall be accompanied by an audited balance sheet prepared by a Tennessee certified public accountant showing the financial position of the cemetery company from the date of the petition seeking relief. All financial information submitted shall be kept strictly confidential and shall be subject to a protective order limiting access to the information to the court and the attorney representing the commissioner.
3. At the final hearing on the petition, the petitioner shall have the burden of proving its entitlement to relief by a preponderance of the evidence. In reaching its decision, the court shall consider at least the following factors, and shall state upon the record its findings:
   1. The financial position of the cemetery company on the date the petition seeking relief was filed;
   2. Whether the net earnings from the improvement care trust fund will be sufficient to provide future maintenance and upkeep of the cemetery for perpetuity; and
   3. The number of lots or grave spaces intended to be used for interment purposes versus the number of lots or grave spaces that have already been sold and the likely impact of the future sale of lots or grave spaces on the cost of maintenance and upkeep.
4. Upon a final hearing of the issues, the chancery court is authorized to pronounce a decree that, in the opinion of the court from the proof and facts, either refusing any relief whatsoever or granting all of the relief prayed for, or granting any partial relief, that may appear proper to the court. The case shall be kept on the docket of the court, subject to any further orders and decrees that may from time to time appear proper upon any additional showing that may be made under any supplemental petition filed either by the original complainants, on behalf of the state,  by any lot owner, or descendant or next of kin of a lot owner who may be entitled to any relief.
5. In no event shall any relief granted under this part affect the cemetery owner's other obligations under this chapter.
6. The cost and expenses of the proceeding in subsections (a)-(d) shall be taxed against and paid by the complainant, including reasonable and necessary attorney's fees to the defense attorney, to be determined by the court. The cost and expense shall be paid out of the complainant's general operating account and shall not be paid out of the principal of the improvement care trust fund.
7. In the event the commissioner determines that any of the following events have occurred, any relief granted by the court to the cemetery company shall immediately terminate and required contributions as set forth in § 46-1-204 shall be resumed without further orders of the court:
   1. A finding by the commissioner that the balance of the improvement care trust fund has decreased by at least fifteen percent (15%) below the fair market value of the trust fund balance as of the date that the petition was filed;
   2. Any sale or transfer that requires notice to the commissioner pursuant to § 46-1-107; or
   3. Purchase of additional land by the cemetery company. The cemetery company shall provide notice of the purchase to the commissioner by certified mail within thirty (30) days of the purchase.
8. Notice of any event in subsection (g) shall be provided by the commissioner to the cemetery company by certified mail and the cemetery company shall resume its obligation to make contributions to the improvement care trust fund beginning with transactions occurring thirty (30) days following receipt of notice, unless it challenges the accuracy of the determination. Any challenge shall be resolved by the chancery court of Davidson County in accordance with subsection (d), with court costs taxed to the petitioner.

Acts 2007, ch. 515, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 3
Records and Report, Violations, and Criminal and Civil Penalties

NOTES TO DECISIONS

1. Interested Persons.

Individual Native Americans, without proof of blood relationship to ancient Native American remains and without interest in the real property involved, and the Tennessee Commission of Indian Affairs, were neither “interested persons” nor did the Indians and the Commission have standing under T.C.A. §§ 46-4-101 — 46-4-104 so as to be added to department's suit to terminate the property's use as a cemetery and relocate the remains. State ex rel. Comm'r of Transp. v. Medicine Bird, 63 S.W.3d 734, 2001 Tenn. App. LEXIS 485 (Tenn. Ct. App. 2001).