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1994 SESSION

LD0856358
HOUSE BILL NO. 993
Offered January 25, 1994
A BILL to amend and reenact §§ 2.1-1.5, 2.1-1.6, 2.1-41.2, 9-6.25.3, 11-35, and 58.1-322 of the Code of Virginia and to amend the Code of Virginia by adding in Title 23 a chapter numbered 4.9, consisting of sections numbered 23-38.75 through 23-38.88, relating to the establishment of the Virginia Higher Education Tuition Trust Fund.
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Patrons--Mims, Cantor, Abbitt, Albo, Almand, Armstrong, Barlow, Behm, Bennett, Bloxom, Brickley, Callahan, Christian, Clement, Cohen, Connally, Cooper, Copeland, Cox, Cranwell, Crittenden, Croshaw, Crouch, Cunningham, Darner, Davies, DeBoer, Deeds, Diamonstein, Dillard, Dudley, Fisher, Forbes, Giesen, Grayson, Hall, Hamilton, Hargrove, Harris, Heilig, Howell, Hull, Ingram, Jackson, Johnson, Jones, D.C., Jones, J.C., Katzen, Keating, Kidd, Kilgore, Marshall, Martin, May, Mayer, McClure, McDonnell, Melvin, Miller, Moore, Morgan, Moss, Nelms, Newman, O'Brien, Orrock, Parrish, Phillips, Plum, Puller, Purkey, Putney, Reid, Reynolds, Rhodes, Robinson, Rollison, Ruff, Scott, Sherwood, Shuler, Spruill, Stump, Tata, Thomas, Van Yahres, Wagner, Wardrup, Watkins, Way, Wilkins and Woodrum; Senators: Barry, Bell, Benedetti, Calhoun, Chichester, Colgan, Cross, Earley, Hawkins, Holland, C.A., Holland, E.M., Holland, R.J., Houck, Howell, Lambert, Marsh, Marye, Maxwell, Miller, K.G., Norment, Potts, Quayle, Reasor, Robb, Russell, Saslaw, Stolle, Stosch, Trumbo, Waddell and Woods
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Referred to Committee on Education
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Be it enacted by the General Assembly of Virginia:

1. That §§ 2.1-1.5, 2.1-1.6, 2.1-41.2, 9-6.25.3, 11-35, and 58.1-322 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Title 23 a chapter numbered 4.9, consisting of sections numbered 23-38.75 through 23-38.88, as follows:

§ 2.1-1.5. Entities not subject to standard nomenclature.

The following entities are not subject to the provisions of § 2.1-1.2 due to the unique characteristics or enabling legislation of the entities:

Authorities.

Richmond Eye and Ear Hospital Authority.

Small Business Financing Authority.

State Education Assistance Authority.

Virginia Agriculture Development Authority.

Virginia College Building Authority.

Virginia Education Loan Authority.

Virginia Housing Development Authority.

Virginia Innovative Technology Authority.

Virginia Port Authority.

Virginia Public Building Authority.

Virginia Public School Authority.

Virginia Resources Authority.

Virginia Student Assistance Authorities.

Boards.

Board of Commissioners, Virginia Agriculture Development Authority.

Board of Commissioners, Virginia Port Authority.

Board of Directors, Richmond Eye and Ear Hospital Authority.

Board of Directors, Small Business Financing Authority.

Board of Directors, Virginia Student Assistance Authorities.

Board of Directors, Virginia Innovative Technology Authority.

Board of Directors, Virginia Resources Authority.

Board of Regents, Gunston Hall Plantation.

Board of Regents, James Monroe Memorial Law Office and Library.

Board of Trustees, Family and Children's Trust Fund.

Board of Trustees, Frontier Culture Museum of Virginia.

Board of Trustees, Jamestown-Yorktown Foundation.

Board of Trustees, Miller School of Albemarle.

Board of Trustees, Rural Virginia Development Foundation.

Board of Trustees, The Science Museum of Virginia.

Board of Trustees, Virginia Museum of Fine Arts.

Board of Trustees, Virginia Museum of Natural History.

Board of Trustees, Virginia Outdoor Foundation.

Board of the Virginia Higher Education Tuition Trust Fund.

Board of Visitors, Christopher Newport University.

Board of Visitors, The College of William and Mary in Virginia.

Board of Visitors, George Mason University.

Board of Visitors, Gunston Hall Plantation.

Board of Visitors, James Madison University.

Board of Visitors, Longwood College.

Board of Visitors, Mary Washington College.

Board of Visitors to Mount Vernon.

Board of Visitors, Norfolk State University.

Board of Visitors, Old Dominion University.

Board of Visitors, Radford University.

Board of Visitors, University of Virginia.

Board of Visitors, Virginia Commonwealth University.

Board of Visitors, Virginia Military Institute.

Board of Visitors, Virginia Polytechnic Institute and State University.

Board of Visitors, Virginia State University.

Governing Board, Virginia College Building Authority.

Governing Board, Virginia Public School Authority.

Library Board, Virginia State Library and Archives.

State Board for Community Colleges, Virginia Community College System.

Commissions.

Alexandria Historical Restoration and Preservation Commission.

Chesapeake Bay Bridge and Tunnel Commission.

Hampton Roads Sanitation District Commission.

Districts.

Chesapeake Bay Bridge and Tunnel District.

Hampton Roads Sanitation District.

Educational Institutions.

Christopher Newport University.

College of William and Mary in Virginia.

Frontier Culture Museum of Virginia.

George Mason University.

James Madison University.

Jamestown-Yorktown Foundation.

Longwood College.

Mary Washington College.

Miller School of Albemarle.

Norfolk State University.

Old Dominion University.

Radford University.

The Science Museum of Virginia.

University of Virginia.

Virginia Commonwealth University.

Virginia Community College System.

Virginia Military Institute.

Virginia Museum of Fine Arts.

Virginia Polytechnic Institute and State University.

Virginia State Library and Archives.

Virginia State University.

Foundations.

Chippokes Plantation Farm Foundation.

Rural Virginia Development Foundation.

Virginia Conservation and Recreation Foundation.

Virginia Historic Preservation Foundation.

Virginia Outdoor Foundation.

Museum.

Virginia Museum of Natural History.

Plantation.

Gunston Hall Plantation.

System.

Virginia Retirement System.

§ 2.1-1.6. State boards.

A. There shall be, in addition to such others as may be established by law, the following permanent collegial bodies affiliated with a state agency within the executive branch:

Accountancy, Board for

Aging, Advisory Board on the

Agriculture and Consumer Services, Board of

Air Pollution, State Advisory Board on

Alcoholic Beverage Control Board, Virginia

Apple Board, Virginia State

Appomattox State Scenic River Advisory Board

Aquaculture Advisory Board

Architects, Professional Engineers, Land Surveyors and Landscape Architects, State Board for

Art and Architectural Review Board

Athletic Board, Virginia

Auctioneers Board

Audiology and Speech-Language Pathology, Board of

Aviation Board, Virginia

Barbers, Board for

Branch Pilots, Board for

Bright Flue-Cured Tobacco Board, Virginia

Building Code Technical Review Board, State

Catoctin Creek State Scenic River Advisory Board

Cattle Industry Board, Virginia

Cave Board

Certified Seed Board, State

Chesapeake Bay Local Assistance Board

Chickahominy State Scenic River Advisory Board

Child Abuse and Neglect, Advisory Board on

Chippokes Plantation Farm Foundation, Board of Trustees

Clinch Scenic River Advisory Board

Coal Research and Development Advisory Board, Virginia

Coal Surface Mining Reclamation Fund Advisory Board

Conservation and Development of Public Beaches, Board on

Conservation and Recreation, Board of

Contractors, Board for

Corn Board, Virginia

Correctional Education, Board of

Corrections, State Board of

Cosmetology, Board for

Criminal Justice Services Board

Dark-Fired Tobacco Board, Virginia

Deaf and Hard-of-Hearing, Advisory Board for the Department for the

Dentistry, Board of

Education, State Board of

Egg Board, Virginia

Emergency Medical Services Advisory Board

Employment Agency Advisory Board

Farmers Market Board, Virginia

Film Office Advisory Board

Fire Services Board, Virginia

Forensic Science Advisory Board

Forestry, Board of

Funeral Directors and Embalmers, Board of

Game and Inland Fisheries, Board of

Geology, Board for

Goose Creek Scenic River Advisory Board

Health Planning Board, Virginia

Health Professions, Board of

Health, State Board of

Hearing Aid Specialists, Board for

Hemophilia Advisory Board

Historic Resources, Board of

Housing and Community Development, Board of

Industrial Development Services Advisory Board

Insurance Advisory Board, State

Irish Potato Board, Virginia

Laboratory Services Advisory Board

Marine Products Board, Virginia

Medical Advisory Board, Department of Motor Vehicles

Medical Board of the Virginia Retirement System

Medicare and Medicaid, Advisory Board on

Medicine, Board of

Mental Health, Mental Retardation and Substance Abuse Services Board, State

Migrant and Seasonal Farmworkers Board

Military Affairs, Board of

Mines, Minerals and Energy, Board of Examiners in the Department of

Minority Business Enterprise, Interdepartmental Board of the Department of

Motor Vehicle Dealers' Advisory Board

Networking Users Advisory Board, State

Nottoway State Scenic River Advisory Board

Nursing, Board of

Nursing Home Administrators, Board of

Occupational Therapy, Advisory Board on

Oil and Gas Conservation Board, Virginia

Opticians, Board for

Optometry, Board of

Peanut Board, Virginia

Personnel Advisory Board

Pesticide Control Board

Pharmacy, Board of

(Delayed effective date - See Editor's note) Physical Fitness and Sports, Virginia Board on

Physical Therapy to the Board of Medicine, Advisory Board on

Plant Pollination Advisory Board

Polygraph Examiners Advisory Board

Pork Industry Board, Virginia

Poultry Products Board, Virginia

Private College Advisory Board

Private Security Services Advisory Board

Professional and Occupational Regulation, Board for

Professional Counselors, Board of

Professional Soil Scientists, Board for

Psychiatric Advisory Board

Psychology, Board of

Public Buildings Board, Virginia

Public Telecommunications Board, Virginia

Radiation Advisory Board

Real Estate Appraiser Board

Real Estate Board

Reciprocity Board, Department of Motor Vehicles

Recreational Fishing Advisory Board, Virginia

Recreation Specialists, Board of

Reforestation Board

Rehabilitative Services, Board of

Respiratory Therapy, Advisory Board on

Retirement System Review Board

Rockfish State Scenic River Advisory Board

Safety and Health Codes Board

Seed Potato Board

Sewage Handling and Disposal Appeal Review Board, State Health Department

Shenandoah State Scenic River Advisory Board

Small Business Advisory Board

Small Business Environmental Compliance Advisory Board

Small Grains Board, Virginia

Social Services, Board of

Social Work, Board of

Soil and Water Conservation Board, Virginia

Soybean Board, Virginia

State Air Pollution Control Board

Substance Abuse Certification Board

Surface Mining Review, Board of

Sweet Potato Board, Virginia

Teacher Education and Licensure, Advisory Board on

Tourism and Travel Services Advisory Board

Toxic Substances Advisory Board

Transportation Board, Commonwealth

Transportation Safety, Board of

Treasury Board, The, Department of the Treasury

Veterans' Affairs, Board on

Veterinary Medicine, Board of

Virginia Board for Asbestos Licensing

Virginia Employment Commission, State Advisory Board for the

Virginia Higher Education Tuition Trust Fund, Board of the

(Delayed effective date - See Editor's note) Virginia Horse Industry Board

Virginia Manufactured Housing Board

Virginia Mine Safety Board

Virginia Retirement System, Board of Trustees

Virginia Waste Management Board

Visually Handicapped, Virginia Board for the

Voluntary Formulary Board, Virginia

War Memorial Foundation, Virginia, Board of Trustees

Waste Management Facility Operators, Board for

Water Resources Research Center Statewide Advisory Board, Virginia

Waterworks and Wastewater Works Operators, Board for

Well Review Board, Virginia

Youth and Family Services, State Board of.

B. Notwithstanding the definition for "board" as provided in § 2.1-1.2, the following entities shall be referred to as boards:

Compensation Board

State Board of Elections

State Water Control Board

Virginia Parole Board

Virginia Veterans Care Center Board of Trustees.

§ 2.1-41.2. Appointment of agency heads; chief of staff.

Notwithstanding any provision of law to the contrary, the Governor shall appoint the administrative head of each agency of the executive branch of state government except the following: the Executive Director of the Virginia Port Authority, the Director of the State Council of Higher Education for Virginia, the Executive Director of the Department of Game and Inland Fisheries, the Executive Director of the Jamestown-Yorktown Foundation and, the Director of the Virginia Retirement System, and the Executive Director of the Virginia Higher Education Tuition Trust Fund. However, the manner of selection of those heads of agencies chosen by election as of January 1, 1976, or as set forth in the Constitution of Virginia shall continue without change. Each administrative head and Secretary appointed by the Governor pursuant to this section shall be subject to confirmation by the General Assembly, shall have such professional qualifications as may be prescribed by law, and shall serve at the pleasure of the Governor. The chief of staff who may be appointed by the Governor pursuant to § 2.1-38 shall be confirmed by a majority of the members of each house of the General Assembly. For the purpose of this section, "agency" shall include all administrative units established by law or by executive order which are not arms of the legislative or judicial branches of government, which are not educational institutions as classified under §§ 9-84, 22.1-346, 23-14, and 23-252, which are not regional planning districts, regional transportation authorities or districts, or regional sanitation districts and which are not assigned by law to other departments or agencies, not including assignments to secretaries under Chapter 5.1 (§ 2.1-51.7 et seq.) of this title.

§ 9-6.25:3. Supervisory boards.

There shall be, in addition to such others as may be designated in accordance with § 9-6.25, the following supervisory boards:

Alcoholic Beverage Control Board

Board for Branch Pilots

Board of Commissioners, Virginia Port Authority

Board of Game and Inland Fisheries

Board of Regents, Gunston Hall Plantation

Board of Regents, James Monroe Memorial Law Office and Library

Board of Trustees, Chippokes Plantation Farm Foundation

Board of Trustees, Frontier Culture Museum of Virginia

Board of Trustees, Jamestown-Yorktown Foundation

Board of Trustees, the Science Museum of Virginia

Board of Trustees, Virginia Museum of Fine Arts

Board of Trustees, Virginia Retirement System

Board of Trustees, Virginia Veterans Care Center

Board of Trustees, Virginia War Memorial Foundation

Board of the Virginia Higher Education Tuition Trust Fund

Board of Visitors, Christopher Newport University

Board of Visitors, George Mason University

Board of Visitors, James Madison University

Board of Visitors, Longwood College

Board of Visitors, Mary Washington College

Board of Visitors, Norfolk State University

Board of Visitors, Old Dominion University

Board of Visitors, Radford University

Board of Visitors, The College of William and Mary in Virginia

Board of Visitors, University of Virginia

Board of Visitors, Virginia Commonwealth University

Board of Visitors, Virginia Military Institute

Board of Visitors, Virginia Polytechnic Institute and State University

Board of Visitors, Virginia State University

Commonwealth's Attorneys' Services Council

Compensation Board

Governing Board, Virginia College Building Authority

Governing Board, Virginia Public School Authority

State Board for Community Colleges, Virginia Community College System

State Board of Education

State Certified Seed Board

State Council of Higher Education for Virginia

Virginia Agricultural Council

Virginia Bright Flue-Cured Tobacco Board

Virginia Board for People with Disabilities

Virginia Cattle Industry Board

Virginia Corn Board

Virginia Dark-Fired Tobacco Board

Virginia Egg Board

Virginia Horse Industry Board

Virginia Marine Products Board

Virginia Peanut Board

Virginia Pork Industry Board

Virginia Soybean Board

Virginia State Apple Board

Virginia Sweet Potato Board.

§ 11-35. Title; purpose; applicability.

A. This chapter may be cited as the Virginia Public Procurement Act.

B. The purpose of this chapter is to enunciate the public policies pertaining to governmental procurement from nongovernmental sources.

C. The provisions of this chapter, however, shall not apply, except as stipulated in the provisions of §§ 11-41.1, 11-49, 11-51, 11-54, 11-56 through 11-61 and 11-72 through 11-80, to any town with a population of less than 3,500 as determined by the last official United States census.

D. Except to the extent adopted by such governing body, the provisions of this chapter also shall not apply, except as stipulated in subsection E, to any county, city or town whose governing body adopts by ordinance or resolution alternative policies and procedures which are based on competitive principles and which are generally applicable to procurement of goods and services by such governing body and the agencies thereof. This exemption shall be applicable only so long as such policies and procedures, or other policies and procedures meeting the requirements of this section, remain in effect in such county, city or town.

Except to the extent adopted by such school board, the provisions of this chapter shall not apply, except as stipulated in subsection E, to any school division whose school board adopts by policy or regulation alternative policies and procedures which are based on competitive principles and which are generally applicable to procurement of goods and services by such school board. This exemption shall be applicable only so long as such policies and procedures, or other policies or procedures meeting the requirements of this section, remain in effect in such school division. This provision shall not exempt any school division from any centralized purchasing ordinance duly adopted by a local governing body.

E. Notwithstanding the exemptions set forth in subsection D, the provisions of §§ 11-41 C, 11-41.1, 11-49, 11-51, 11-54, 11-56 through 11-61 and 11-72 through 11-80 shall apply to all counties, cities and school divisions, and to all towns having a population greater than 3,500 in the Commonwealth. The method for procurement of professional services set forth in subdivision 3 a of § 11-37 in the definition of competitive negotiation shall also apply to all counties, cities and school divisions, and to all towns having a population greater than 3,500, where the cost of the professional service is expected to exceed $20,000.

F. The provisions of this chapter shall not apply to those contracts entered into prior to January 1, 1983, which shall continue to be governed by the laws in effect at the time those contracts were executed.

G. To the end that public bodies in the Commonwealth obtain high quality goods and services at reasonable cost, that all procurement procedures be conducted in a fair and impartial manner with avoidance of any impropriety or appearance of impropriety, that all qualified vendors have access to public business and that no offeror be arbitrarily or capriciously excluded, it is the intent of the General Assembly that competition be sought to the maximum feasible degree, that individual public bodies enjoy broad flexibility in fashioning details of such competition, that the rules governing contract awards be made clear in advance of the competition, that specifications reflect the procurement needs of the purchasing body rather than being drawn to favor a particular vendor, and that purchaser and vendor freely exchange information concerning what is sought to be procured and what is offered.

H. Notwithstanding the foregoing provisions of this section, the selection of services by the Virginia Retirement System and the Board of the Virginia Higher Education Tuition Trust Fund related to the management, purchase or sale of authorized investments, including but not limited to actuarial services, shall be governed by the standards set forth in § 51.1-116§ 51.1-116 and 23-38.80, respectively, and shall not be subject to the provisions of this chapter.

I. The provisions of this chapter shall apply to procurement of any construction or planning and design services for construction by a Virginia not-for-profit corporation or organization not otherwise specifically exempted when the planning, design or construction is funded by state appropriations greater than $10,000 unless the Virginia not-for-profit corporation or organization is obligated to conform to procurement procedures which are established by federal statutes or regulations, whether or not those federal procedures are in conformance with the provisions of this chapter.

CHAPTER 4.9.
VIRGINIA HIGHER EDUCATION TUITION TRUST FUND.

§ 23-38.75. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Board" means the Board of the Virginia Higher Education Tuition Trust Fund.

"Fund" means the Virginia Higher Education Tuition Trust Fund.

"Prepaid tuition contract" means the contract entered into by the Board and a purchaser pursuant to this chapter for the advance payment of undergraduate tuition at a fixed, guaranteed level by the purchaser for a qualified beneficiary to attend any two- or four-year public institution of higher education in the Commonwealth to which the qualified beneficiary is admitted.

"Purchaser" means a person who makes or is obligated to make advance payments in accordance with a prepaid tuition contract.

"Qualified beneficiary" or "beneficiary" means a resident of the Commonwealth, determined by the Board, who may apply advance tuition payments to undergraduate tuition as set forth in this chapter.

"Tuition" means the quarter, semester, or term charges imposed by any two- or four-year public institution of higher education in the Commonwealth and all mandatory fees required as a condition of enrollment of all students.

§ 23-38.76. Virginia Higher Education Tuition Trust Fund established; governing board; terms.

A. To enhance the accessibility and affordability of higher education for all citizens of the Commonwealth, there is hereby established in the state treasury a special nonreverting fund known as the Virginia Higher Education Tuition Trust Fund. The Fund shall consist of payments received pursuant to prepaid tuition contracts made pursuant to this chapter, bequests, endowments or grants from the United States government, its agencies and instrumentalities, and any other available sources of funds, public or private. Any moneys remaining in the Fund at the end of a biennium shall not revert to the general fund but shall remain in the Fund. Interest and income earned from the investment of such funds shall remain in the Fund and be credited to it.

B. The Fund shall be administered by an eight-member Board, as follows: the Director of the State Council of Higher Education for Virginia or his designee; the Chancellor of the Virginia Community College System or his designee; the State Treasurer or his designee; the State Comptroller or his designee; and four citizens, to be appointed by the Governor, with significant experience in finance, accounting, and investment management. No person holding a full-time position of employment with the Commonwealth, any county or municipality, any institution of higher education, or any agency, instrumentality, or subdivision of the foregoing shall be eligible for appointment to the Board.

Of the citizen members to be appointed in 1992, two shall be appointed for four-year terms, and two shall be appointed for two- and three-year terms, respectively. Thereafter, all appointments shall be for terms of four years, except that appointments to fill vacancies shall be for the unexpired terms. No person shall be appointed to serve for or during more than two successive four-year terms, but after the expiration of a term of three years or less, or after the expiration of the remainder of a term to which appointed to fill a vacancy, two additional terms may be served by such member if appointed thereto. Should a noncitizen member cease to hold his public office, the vacancy shall be filled for the remainder of the term by his successor.

C. Members of the Board shall receive no compensation, but shall be reimbursed for actual expenses incurred in the performance of their duties. The Board shall elect from its membership a chairman, vice chairman, and a treasurer for each calendar year. A majority of the members of the Board shall constitute a quorum.

§ 23-38.77. Powers and duties of Board.

The Board shall administer the Fund established by this chapter and shall develop and implement a program for the prepayment of undergraduate tuition at a fixed, guaranteed level for application at a two- or four-year public institution of higher education in the Commonwealth. In addition, the Board shall have the power and duty to:

1. Invest moneys in the Fund in any instruments, obligations, securities, or property deemed appropriate by the Board;

2. Develop requirements, procedures, and guidelines regarding prepaid tuition contracts, including, but not limited to, residency requirements; the number of participants in the Fund; the termination, withdrawal, or transfer of payments under a prepaid tuition contract; time limitations for the use of tuition benefits; and payment schedules;

3. Enter into contractual agreements, including contracts for legal, actuarial, financial, and consulting services;

4. Procure insurance against any loss in connection with the Fund's property, assets, or activities and indemnifying Board members from personal loss or accountability from liability arising from any action or inaction as a Board member;

5. Make arrangements with two- and four-year public institutions in the Commonwealth to fulfill obligations under prepaid tuition contracts, including, but not limited to, payment from the Fund of the then actual in-state undergraduate tuition cost on behalf of a qualified beneficiary to the institution in which the beneficiary is admitted and enrolled;

6. Apply for, accept, and expend gifts, grants, or donations from public or private sources to enable it to carry out its objectives; and

7. Promulgate regulations and procedures and to perform any act or function consistent with the purposes of this chapter.

§ 23-38.78. Board actions not a debt of Commonwealth.

No act or undertaking of the Board shall be deemed to constitute a debt of the Commonwealth or any political subdivision thereof, or a pledge of the full faith and credit of the Commonwealth or of any political subdivision, but shall be payable solely from the Fund.

§ 23-38.79. Executive director; staff support.

The Board shall employ an executive director, who shall be authorized to employ such staff as necessary to enable the Board to perform its duties as set forth in this chapter, and an actuary to serve as its technical advisor. The Board is authorized to determine the duties and to fix the salaries and compensation of such staff from such funds as may be appropriated or received.

§ 23-38.80. Standard of care; investment and administration of Fund.

A. In acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property for the benefit of the Fund, the Board shall act as trustee and shall exercise the judgment of care under the circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but to the permanent disposition of funds, considering the probable income as well as the probable safety of their capital. If the annual accounting and audit required by § 23-38.85 reveal that there are insufficient funds to ensure the actuarial soundness of the Fund, the Board shall be authorized to adjust the terms of subsequent prepaid tuition contracts or arrange refunds for current purchasers to ensure actuarial soundness.

B. The assets of the Fund shall be preserved, invested, and expended solely pursuant to and for the purposes of this chapter and shall not be loaned or otherwise transferred or used by the Commonwealth for any other purpose. Within the standard prescribed in subsection A of this section, the Board is authorized to acquire and retain every kind of property and every kind of investment, specifically including but not limited to (i) debentures and other corporate obligations of foreign or domestic corporations; (ii) common or preferred stocks traded on foreign or domestic stock exchanges, limited to sixty percent of total trust fund investments based on cost; (iii) not less than all of the stock of a corporation organized by the Board under the laws of the Commonwealth for the purposes of acquiring and retaining real property that the Board is authorized under this chapter to acquire and retain; and (iv) securities of any open-end or closed-end management type investment company or investment trust registered under the federal Investment Company Act of 1940, as amended, which persons of prudence, discretion, and intelligence acquire or retain for their own account. Within the limitations of the foregoing standard, the Board may retain property properly acquired, without time limitation and without regard to its suitability for original purchase. This section shall not be construed to prohibit the investment of the Fund, by purchase or otherwise, in bonds, notes, or other obligations of the Commonwealth or its agencies and instrumentalities.

C. The selection of services related to the management, purchase, or sale of authorized investments, including but not limited to actuarial services, shall be governed by the foregoing standard and shall not be subject to the provisions of the Virginia Public Procurement Act (§ 11-35 et seq.).

§ 23-38.81. Prepaid tuition contracts; terms; termination; etc.

A. Each prepaid tuition contract made pursuant to this chapter shall include the following terms and provisions:

1. The amount of payment or payments and the number of payments required from a purchaser on behalf of a qualified beneficiary;

2. The terms and conditions under which purchasers shall remit payments, including the dates of such payments;

3. Provisions for late payment charges, defaults, withdrawals, refunds, and any penalties;

4. The name and date of birth of the qualified beneficiary on whose behalf the contract is made;

5. Terms and conditions for a substitution for the qualified beneficiary originally named;

6. Terms and conditions for termination of the contract, including any refunds and the name of the person or persons entitled to terminate the contract;

7. The time period during which the qualified beneficiary must claim benefits from the Fund;

8. The number of credit hours or quarters, semesters, or terms contracted for by the purchaser;

9. Provisions for the application of tuition prepayments at nonpublic or out-of-state institutions of higher education;

10. All other rights and obligations of the purchaser and the trust; and

11. Any other terms and conditions which the Board deems necessary or appropriate.

B. All prepaid tuition contracts shall specifically provide that, if after a specified period of time the contract has not been terminated nor the qualified beneficiary's rights exercised, the Board, after making reasonable effort to contact the purchaser and the qualified beneficiary or their agents, shall retain the amounts otherwise payable under the contract and the rights of the purchaser and the qualified beneficiary shall be terminated.

§ 23-38.82. Federal taxation and securities rulings required.

No prepaid tuition contract shall be made until the Internal Revenue Service has issued a favorable ruling or opinion that (i) the purchaser will not be deemed to be actually or constructively in receipt of income until tuition payments are made by the Board pursuant to a tuition payment contract and (ii) assets of the Fund, including earnings accrued, are exempt from federal income taxation. If an unfavorable ruling or opinion is issued, the Board shall present a report to the Governor and the General Assembly outlining recommendations for the modification and continuance of the Fund. The Board shall also solicit responses to ruling requests from the Securities and Exchange Commission regarding the application of federal laws to the Fund prior to making any prepaid tuition contract.

§ 23-38.83. Fund property tax exempt.

The assets of the Fund and its income shall be exempt from state and local taxation.

§ 23-38.84. Deduction of certain payments from taxable income.

Pursuant to § 58.1-322, a purchaser may deduct from taxable income payments made under a:

1. Prepaid tuition contract; and

2. Contract with a private sector investment manager approved by the Board as equivalent to a prepaid tuition contract and meeting other criteria as established by the Board.

§ 23-38.85. Annual report.

The Board shall submit an annual statement of the receipts, disbursements, and current investments of the Fund for the preceding year to the Governor and the General Assembly. The report shall set forth a complete operating and financial statement covering the operation of the Fund during the year. The Board shall cause an audit of the Fund and its assets and accounts to be made at least once a year by a certified public accountant, and the cost thereof shall be treated as a cost of operation.

§ 23-38.86. Forms of accounts and records; audit of same.

The accounts and records of the Board showing the receipt and disbursement of funds from whatever source derived shall be in such form as the Auditor of Public Accounts prescribes, provided that such accounts shall correspond as nearly as possible to the accounts and records for such matters maintained by corporate enterprises. The accounts and records of the Board shall be subject to audit by the Auditor of Public Accounts on an annual basis and the costs of such audit services shall be borne by the Board.

§ 23-38.87. Admission to institutions not guaranteed.

Nothing in this chapter nor in any prepaid tuition contract shall be construed as a promise or guarantee by the Board or the Commonwealth of any admission, continued enrollment, or graduation at any public two- or four-year institution of higher education in the Commonwealth.

Nothing in this chapter or in any prepaid tuition contract entered into pursuant to this chapter shall be construed as a promise or guarantee that the beneficiary's cost of tuition at an institution of higher education other than a public institution of higher education will be covered in full by the proceeds of the beneficiary's tuition credits.

§ 23-38.88. Payroll deductions.

The Commonwealth and its agencies and municipalities and any employer in the Commonwealth are authorized to agree, by contract or otherwise, to remit payments on behalf of an employee toward prepaid tuition contracts through payroll deductions.

§ 58.1-322. Virginia taxable income of residents.

A. The Virginia taxable income of a resident individual means his federal adjusted gross income for the taxable year, which excludes combat pay for certain members of the Armed Forces of the United States as provided in § 112 of the Internal Revenue Code, as amended, and with the modifications specified in this section.

B. To the extent excluded from federal adjusted gross income, there shall be added:

1. Interest, less related expenses to the extent not deducted in determining federal income, on obligations of any state other than Virginia, or of a political subdivision of any such other state unless created by compact or agreement to which Virginia is a party;

2. Interest or dividends, less related expenses to the extent not deducted in determining federal taxable income, on obligations or securities of any authority, commission or instrumentality of the United States, which the laws of the United States exempt from federal income tax but not from state income taxes;

3. Unrelated business taxable income as defined by § 512 of the Internal Revenue Code;

4. The amount of a lump sum distribution from a qualified retirement plan, less the minimum distribution allowance and any amount excludable for federal income tax purposes which is excluded from federal adjusted gross income solely by virtue of an individual's election to use the averaging provisions under § 402 of the Internal Revenue Code;

5 through 7. [Repealed.]

8. (Applicable for taxable years beginning on and after January 1, 1990, and before January 1, 1994.) For taxable years beginning on and after January 1, 1990, and before January 1, 1994, any amount of self-employment tax deduction under § 164 (f) of the Internal Revenue Code.

9. The amount required to be included in income for the purpose of computing the partial tax on an accumulation distribution pursuant to § 667 of the Internal Revenue Code.

C. To the extent included in federal adjusted gross income, there shall be subtracted:

1. Interest or dividends on obligations of the United States and on obligations or securities of any authority, commission or instrumentality of the United States to the extent exempt from state income taxes under the laws of the United States including, but not limited to, stocks, bonds, treasury bills, and treasury notes, but not including interest on refunds of federal taxes, interest on equipment purchase contracts, or interest on other normal business transactions.

2. Interest on obligations of this Commonwealth or of any political subdivision or instrumentality of this Commonwealth.

3. [Repealed.]

4. Benefits received under Title II of the Social Security Act and other benefits subject to federal income taxation solely pursuant to § 86 of the Internal Revenue Code.

4a. A deduction equal to the amount used in computing the federal credit allowed under § 22 of the Internal Revenue Code by a retiree under age sixty-five who qualified for such retirement on the basis of permanent and total disability and who is a qualified individual as defined in § 22 (b) (2) of the Internal Revenue Code; however, any person who claims a subtraction under subdivision 5 of subsection D of this section may not also claim a deduction under this subdivision.

5. The amount of any refund or credit for overpayment of income taxes imposed by the Commonwealth or any other taxing jurisdiction.

6. The amount of wages or salaries eligible for the federal Targeted Jobs Credit which was not deducted for federal purposes on account of the provisions of § 280 C (a) of the Internal Revenue Code.

7. Any amount included therein which is foreign source income as defined in § 58.1-302.

8. For taxable years beginning after December 31, 1983, the available portion of total excess cost recovery as defined in former § 58.1-323 B and for taxable years beginning after December 31, 1987, the excess cost recovery amount specified in § 58.1-323.1 B.

9. [Expired.]

10. Any amount included therein less than $600 from a prize awarded by the State Lottery Department.

11. The wages or salaries received by any person for active and inactive service in the National Guard of the Commonwealth of Virginia, not to exceed the amount of income derived from thirty-nine calendar days of such service or $3,000, whichever amount is less; however, only those persons in the ranks of O3 and below shall be entitled to the deductions specified herein.

12. Amounts received by an individual, not to exceed $1,000 in any taxable year, as a reward for information provided to a law-enforcement official or agency, or to a nonprofit corporation created exclusively to assist such law-enforcement official or agency, in the apprehension and conviction of perpetrators of crimes. This provision shall not apply to the following: an individual who is an employee of, or under contract with, a law-enforcement agency, a victim or the perpetrator of the crime for which the reward was paid, or any person who is compensated for the investigation of crimes or accidents.

13. [Repealed.]

14. (Expires for taxable years beginning on and after January 1, 1999.) The amount of any qualified agricultural contribution as determined in § 58.1-322.2.

15. [Repealed.]

16. (Applicable for taxable years beginning on and after January 1, 1992, and before January 1, 1994.) The amounts of self-employment tax required to be added in computing Virginia taxable income for taxable years beginning on and after January 1, 1990, but before January 1, 1994, pursuant to subdivision B 8 of this section, as follows:

1. For taxable years beginning on and after January 1, 1994, and before January 1, 1995, the amount of self-employment tax added to federal adjusted gross income in taxable years beginning on and after January 1, 1990, and before January 1, 1991;

2. For taxable years beginning on and after January 1, 1995, and before January 1, 1996, the amount of self-employment tax added to federal adjusted gross income in taxable years beginning on and after January 1, 1991, and before January 1, 1992;

3. For taxable years beginning on and after January 1, 1996, and before January 1, 1997, the amount of self-employment tax added to federal adjusted gross income in taxable years beginning on and after January 1, 1992, and before January 1, 1993;

4. For taxable years beginning on and after January 1, 1997, and before January 1, 1998, the amount of self-employment tax added to federal adjusted gross income in taxable years beginning on and after January 1, 1993, and before January 1, 1994, and any amount of self-employment tax required to be added back for taxable years beginning on and after January 1, 1990, and before January 1, 1994, which was not subtracted in those taxable years.

17. (For applicability and expiration date - See Editor's note.) The first $250 of interest income earned from a financial institution that has at least one office in the Commonwealth.

D. In computing Virginia taxable income there shall be deducted from federal adjusted gross income:

1. a. The amount allowable for itemized deductions for federal income tax purposes where the taxpayer has elected for the taxable year to itemize deductions on his federal return, but reduced by the amount of income taxes imposed by the Commonwealth or any other taxing jurisdiction and deducted on such federal return and increased by an amount which, when added to the amount deducted under § 170 of the Internal Revenue Code for mileage, results in a mileage deduction at the state level for such purposes at a rate of eighteen cents per mile; or

b. Two thousand dollars for taxable years beginning January 1, 1987, through December 31, 1987; $2,700 for taxable years beginning January 1, 1988, through December 31, 1988; and $5,000 for married persons (one-half of such amounts in the case of a married individual filing a separate return); and $3,000 for single individuals for taxable years beginning on and after January 1, 1989; provided that the taxpayer has not itemized deductions for the taxable year on his federal income tax return. For purposes of this section, any person who may be claimed as a dependent on another taxpayer's return for the taxable year may compute the deduction only with respect to earned income.

2. a. A deduction in the amount of $700 for taxable years beginning January 1, 1987, through December 31, 1987, and $800 for taxable years beginning on and after January 1, 1988, for each personal exemption allowable to the taxpayer for federal income tax purposes. For taxable years beginning on and after January 1, 1987, each blind or aged taxpayer as defined under § 63 (f) of the Internal Revenue Code shall be entitled to an additional personal exemption.

b. An additional deduction of $200 for taxable years beginning January 1, 1987 through December 31, 1987, for each blind or aged taxpayer as defined under § 63 (f) of the Internal Revenue Code. The additional deduction for blind or aged taxpayers allowed under this subdivision and the additional personal exemption allowed to blind or aged taxpayers under subdivision 2 a of this subsection shall be allowable regardless of whether the taxpayer itemizes deductions for the taxable year for federal income tax purposes.

3. A deduction equal to the amount of employment-related expenses upon which the federal credit is based under § 21 of the Internal Revenue Code for expenses for household and dependent care services necessary for gainful employment.

4. An additional $1,000 deduction for each child residing for the entire taxable year in a home under permanent foster care placement as defined in Chapter 10 (§ 63.1-195 et seq.) of Title 63.1, provided the taxpayer can also claim the child as a personal exemption under § 151 of the Internal Revenue Code.

5. Effective for all taxable years beginning on and after January 1, 1991, a deduction in the amount of $12,000 for taxpayers age sixty-five or older, or $6,000 for taxpayers age sixty-two through sixty-four, less any amount received pursuant to the (i) Social Security Act or (ii) Railroad Retirement Act and treated for federal income tax purposes as equivalent to social security. Beginning in taxable year 1992, the $12,000 and $6,000 deduction amounts shall be indexed annually in each taxable year by an amount equivalent to the most recent percentage increase in the social security wage base.

6. Payments made under a prepaid tuition contract pursuant to Chapter 4.9 (§ 23-38.75 et seq.) of Title 23.

E. There shall be added to or subtracted from federal adjusted gross income (as the case may be) the individual's share, as beneficiary of an estate or trust, of the Virginia fiduciary adjustment determined under § 58.1-361.

F. There shall be added or subtracted, as the case may be, the amounts provided in § 58.1-315 as transitional modifications.