Join now!   |   Subscribe   |   Pay an Invoice   |   Contact Us   |   Sign In
Unclaimed Property Focus
Blog Home All Blogs
UNCLAIMED PROPERTY FOCUS is a blog written by and for UPPO members, featuring diverse perspectives and insights from unclaimed property practitioners across the U.S. and Canada. We welcome your submissions to Unclaimed Property Focus. Please contact Tim Dressen via tim@uppo.org with any questions about submitting a blog post for consideration and refer to our editorial guidelines when writing your blog post. Disclaimer: Information and/or comments to this blog is not intended as a substitute for legal advice on compliance or reporting requirements.

 

Search all posts for:   

 

Top tags: unclaimed property  Compliance  education  UPPO  audits  due diligence  Delaware  reform  Advocacy  Members  ULC  litigation  UP101  UP Laws  reporting  Uniform Law Commission  Holders Seminar  Canada  legislation  RUUPA  service providers  Gift Cards  uniform unclaimed property act  Policy  UPPO Asks  VDA  Annual Conference  FAQs  Pennsylvania  UPPO annual conference 

How is nexus connected to unclaimed property?

Posted By Administration, Thursday, December 1, 2016

Traditionally, the “concept” of nexus is not a factor when it comes to unclaimed property, but it is when considering sales tax issues.  Nexus describes the degree of activity that must exist before a state requires a company to collect sales tax. However, a closer look at its components and related U.S. Supreme Court actions reveals some interesting similarities between nexus and unclaimed property—and the possibility that those connections may become closer.

 

“Nexus could theoretically affect unclaimed property in several areas, such as multi-state audits, estimation and record-keeping requirements,” says Kevin Spiegel, senior manager with Crowe Horwath LLP.

 

In the 1992 case of Quill Corp. v. North Dakota, the U.S. Supreme Court looked at multi-state sales tax and nexus. The court said that nexus has two constitutional components—the Due Process Clause and the Commerce Clause. The court held that, as an out-of-state seller, Quill met the Due Process Clause’s “minimum contacts" requirement—a definite link existed between the company and the state seeking to it. However, under the Commerce Clause, Quill didn’t have a physical presence in North Dakota that would create a sufficient connection for the state to impose tax on Quill.

 

In drawing this distinction between the Commerce Clause and Due Process Clause, the court said two tests address two different constitutional concerns. The minimum contacts test addresses due process concerns, the fairness of the government activity and whether the taxpayer has fair warning that its activities might be subject to tax. The substantial nexus test addresses commerce concerns, specifically whether the state is placing impermissible burdens under state commerce.

 

“The distinction is important because Congress can legislatively modify the nexus standards under the Commerce Clause but not under Due Process Clause,” Spiegel says. “The Quill court set forth the bright line test requiring a physical presence, but also said Congress has the authority to regulate it.”

 

The court specified that Congress is responsible for regulating tax—within reason. The Due Process Clause exists to ensure fairness, so Congress cannot make laws that impose unfair expectations on U.S. citizens.

 

So what is the connection between the Quill case and unclaimed property? One year later, the Supreme Court took on the unclaimed property case of Delaware v. New York. In its decision, the court made a similar ruling as in the Quill case, specifying Congress has the authority to regulate unclaimed under the Commerce Clause.

 

“If we look at the trends, it’s hard to say the court in Quill had a different philosophy toward commerce clause jurisprudence. In both decisions, the court invited congressional regulation,” Spiegel says. “At that time in the early 1990s, we didn’t have a robust issue with regard to estimation and states using unclaimed property to raise revenue. It wasn’t on the radar to say unclaimed property is a tax. The court in Quill was looking at the two components of nexus, saying there are two tests. When it comes to tax, you need to have substantial nexus and Congress should regulate this. If you apply that same theory to unclaimed property, I think we might have some interesting results.”

 

By regulating unclaimed property, Congress could enact legislation affecting the role of the states. For example, it could change the priority rules or limit auditing of holders located in other states. Unclaimed property holders often find themselves subject to multi-state audits. Holders may not have multi-state operations and may have only minimal contact within some of the auditing states. This is where the due process test could come into play. The Supreme Court has not considered whether subjecting a holder without substantial contact in another state to an unclaimed property audit is a violation of personal jurisdiction.

 

Whether the Supreme Court formally applies the concept of nexus to unclaimed property remains to be seen, but comments from court justices indicate they are interested in looking at the issues. In comments in the 2014 case of Direct Marketing Association v. Brohl, Justice Kennedy suggested that because of changes to interstate commerce brought about by the internet, “The legal system should find an appropriate case for this court to reexamine Quill…” Likewise in Taylor v. Yee, Justice Alito expressed an interest in reviewing the constitutionality of state escheat laws.

 

The court isn’t obligated to look at due process and commerce clause in the same way as it would in a tax case, but it could make the connection that unclaimed property—at least in instances when estimation is applied—is actually a tax, and, thus, the same fairness issues should be applied. Current estimated assessment practices for unclaimed property would likely fall outside the constraints in place for taxation. If the court were to formally determine unclaimed property is a tax, the method for determining assessments would likely become more restrictive.  

 

To learn more about recovering unclaimed property, join Kevin Spiegel and Matt Hedstrom, partner with Alston & Bird LLP, as they lead the Can’t Touch This: Nexus for Unclaimed Property session at the 2017 UPPO Annual Conference.

 

 

Tags:  nexus  unclaimed property 

Share |
PermalinkComments (0)
 

Unclaimed property in the Caribbean

Posted By Administration, Tuesday, November 29, 2016

Among the nations that regulate unclaimed property are several Caribbean islands. During a recent UPPO International Escheatment webinar, Darren Jack, director of business development for AssetMine Global Inc., provided an overview of unclaimed property practices in seven Caribbean nations.  

 

“A lot of times assets belonging to foreign owners get reported to the state of incorporation because a U.S.-based auditor is saying that’s where it needs to go rather than thinking about the holder’s presence in another country and considering those laws,” says Jack. “All foreign property shouldn’t necessarily go to the state of incorporation just because U.S. audits are directing things that way without considering if the holder has operations outside of the U.S.”

 

Antigua

Under Antigua’s IBC Act and the Banking Act 2005, Sections 60-63, which regulate the island’s unclaimed property, deposits, funds paid toward shares, sums payable on cheques and safe deposit box contents are considered abandoned when, within the past 15 years the owner has not: increased or decreased the amount held; presented the passbook for crediting of dividends; corresponded in writing with the bank concerning the items; or otherwise indicated an interest in the items.

 

The holder must publish in the Gazette the name of the owner and details about the property within 30 days of the end of its fiscal year. Within 90 days of the end of its fiscal year, the bank must report and transfer to the Central Bank the assets and interest for the inactive period. Property owners may then make a claim to the Central Bank, which will hold a hearing and deliver a decision regarding the property.

 

Publishing notifications in the Gazette is common practice in several Caribbean nations. However, requirements vary and sometimes provide only minimal details to help owners identify their property.

 

“One of the interesting aspects about some of the Caribbean jurisdictions where unclaimed property laws are still evolving is that when some governments publish dormant asset details in the government Gazette, they sometimes only publish the account number and balance, so people have a difficult time identifying their accounts,” says Jack. “If asset owners remembered their account number, they likely would have remembered their account.”

 

Bahamas

Two acts regulate unclaimed property in The Bahamas, the Banks and Trust Companies Regulation, 2000, section 20; and the Central Bank of The Bahamas Act, 2000, section 24.

 

In 2014, the government sought stakeholder input to make changes to the law. Changes included:

  • Inclusion of additional types of financial instruments such as bank drafts, manager’s cheques, money orders, travellers cheques and credit card balances.
  • Owners of multiple accounts only need to enact one transaction on one account to prevent any of their accounts from becoming dormant. Previously, each account was treated individually.

Some types of dormant accounts are exempt from transfer, including automatically renewable fixed term deposit accounts, deposit accounts of gold and silver bullion, non-cash collateral, custody accounts or safety deposit boxes, share accounts, savings bonds, undelivered stock certificates, matured bonds and unredeemed bond coupons. Banks are expected to keep records and continue reporting these accounts, however.

 

Barbados

Under the Financial Institutions Act, Cap. 324A, sections 87-92, property held by a financial institution is considered abandoned if within 10 years of making a deposit, the owner has not increased or decreased the balance, presented a passbook for crediting interest or communicated with the bank regarding any item. Similarly, if within 10 years of paying funds toward shares, the owner has not increased or decreased the funds or presented a passbook, the property is considered abandoned.

 

Within 60 days of the end of each financial year, the financial institution must report to the Central Bank all abandoned property, publish the names of owners and property details in the Gazette and mail a copy to the owners last known address. Following publication, owners have six years to make a claim to the Central Bank.

 

British Virgin Islands

Under the Uniform Unclaimed Property Act, dormancy periods vary widely depending on the property type. The reporting period is July 1, with reports filed by Nov. 1, except for life insurance, which has a May 1 reporting deadline for the previous 12 months. Amounts under $50 should be aggregated.  

 

Cayman Islands

The Dormant Accounts Law (2010) sets a dormancy period of seven years, retroactive to include all accounts held by financial institutions, even if dormancy began before enactment of the law. Holders are required to notify account owners of dormancy by July 31 of each year. Owners then have until Dec. 31 to reverse dormancy. Holders must also publish notices in the Gazette if no correspondence has occurred with the owner. By March 31, holders must transfer funds to the government, at which time they are relieved of all liability.

 

St. Lucia

Under St. Lucia’s International Banks Act, any deposits, funds paid towards shares, sums payable on cheques and contents of safe deposit box are considered abandoned when, within the past 15 years the owner has not: increased or decreased the amount held; presented a passbook for crediting of dividends; corresponded in writing with the bank concerning the items; or otherwise indicated an interest in the items.

 

Within 30 days of the end of its financial year, banks must publish in the Gazette the owner’s name and property details, and mail this notice to the owner’s last known address. After publication, but within 90 days of end of its financial year, the bank must report to the minister, and subsequently transfer, all abandoned property. Upon transfer, the bank is relieved of its liability for the property.

 

Owners must file a claim with the accountant general, which will hold a hearing and render a decision. Claimants unsatisfied by the decision may file a court action within 30 days of the decision.

 

Trinidad & Tobago

Under section 76 of the Trinidad & Tobago Financial Institutions Act, financial institutions must annually (within 60 days of fiscal year end) publish in the Gazette a statement of accounts for which there has been no transaction, and no request of or acknowledgment of a statement of account, for seven years. The owner or owner’s legal representative then has three months to contact the bank. After three months, the holder transfers funds to the Central Bank. Unlike in several other Caribbean nations, the transfer does not relieve the bank of its liability to pay the holder. However, the government indemnifies all banks that incur a loss as a result of making a payment.

 

 

Tags:  Antigua  Bahamas  Barbados  British Virgin Islands  Caribbean  Cayman Islands  international  St. Lucia  Trinidad & Tobago  unclaimed property 

Share |
PermalinkComments (0)
 

Turn a cost-center into a profit center with asset recovery

Posted By Administration, Tuesday, November 22, 2016

For many companies, unclaimed property represents a cost center. It’s a necessary function that can be labor-intensive to administer and, thus, costly. However, offsetting the expenses associated with unclaimed property is possible, by seeking unclaimed property that belongs to the company.

 

“There is more than $100 billion out there for companies to claim,” says Kim Sawyer, president and general counsel for The Locator Service Group. “That money is not just the $41 billion plus held by state abandoned property offices, but there are billions more held by cities, counties, federal agencies, courts and foreign government agencies.”

 

Recovering the company’s piece of that $100 billion pie is certainly appealing and beneficial, but doing so often requires overcoming a lot of challenges. Simply tracking down the property owed to a company is the first major challenge. Only a small percentage of property is posted online. Some states publish items only when they’re over a certain age or dollar amount, but these thresholds aren’t consistent from state to state. 

 

In addition to the online search limitations imposed by the states, the data that is searchable likely excludes a substantial amount of property held by cities, counties and other entities.

 

Because states and other entities often choose not to publish the actual value of the property they hold, companies may spend substantial time pursuing a claim, only to find out its value is miniscule.

 

Companies attempting to recover assets may also run into a spectrum of challenging scenarios that vary by property type and state, including:

  • Some states require indemnity bonds on the property that has been escheated.
  • Many states send escheated shares that are being claimed back to the transfer agent. To get paid by the transfer agent, the property owner needs a medallion signature guarantee from a financial institution. In large companies, the people who are able to acquire such a guarantee are at very high levels.
  • An increasing number of states are requiring holder verification. Property owners have to prove they had a business relationship with the holder and that no other owners are associated with the property.
  • Some entities require a corporate seal. However, a lot of corporations today are LLCs that don’t have a corporate seal.
  • Some states require that the person claiming the property is an authorized signatory for that actual company—not the parent company. When recovery is centralized, that can present a challenge.

“Something that is seemingly so easy, isn’t really easy at all,” Sawyer says.

 

So how can companies recover their funds effectively? At a minimum, they should contact the state where they are located or have a significant presence and ask them to search on their behalf.

 

“If you’re a large company and you don’t provide an overwhelming list of names—just five or six subsidiaries with the largest presence in the state—they may be willing to do that for you,” Sawyer says. “Frame the request in terms of, ‘We escheat a lot of property to your state; I would greatly appreciate you helping us with this request.’ They often will help if the request isn’t overly cumbersome.”

 

Submit similar requests to cities and counties where the company is located, as they too may be able to assist.

 

Additional steps that can make the recovery process easier include:

  • Create a corporate library: Unclaimed property claims frequently require documents that verify the company’s relationship to its subsidiaries and predecessor companies. Maintaining a library of these documents makes the process easier and more efficient. The library should include: merger and acquisition filings, name change and fictitious name filings, an Internal Revenue Service letter containing the tax ID number, and a list of current and past real estate holdings.
  • Develop and maintain relationships: Government agency recovery personnel can be great assets. Maintain a database of employees who have proven helpful at the city, county and state levels so you can call on them again as needed.
  • Annually review filings: Put a process in place to review refund filings to make sure they have been received. The largest property claims are often tax refunds.

Companies may choose to retain third-party specialists to assist with recovery. Proper vetting of these companies is essential.

 

“If you hire a third party on a contingency fee basis, it can be a win-win,” Sawyer says. “However, make sure your company’s interests are aligned with the third party." Some third party recovery companies only work in the state or states they are licensed to do business in and will not have the ability to search for your corporate funds nationwide. If your company is looking for a nationwide search of their unclaimed funds this would be a question you should ask up front.

 

Turning unclaimed property from a cost center into a profit center is an appealing prospect, but the challenges can be daunting. By putting systems and processes in place, however, companies can begin to reap the benefits of recovering assets that are rightfully theirs.

 

To learn more about recovering unclaimed property, join Sawyer and Nora O’Connor, NCM Solutions, as they lead the Take it or Leave It session at the 2017 UPPO Annual Conference. The event will also include an Owner Representative/Asset Recovery Industry Breakout session to help professionals exchange information and network with fellow attendees with an interest in this topic.

 

UPPO members are also encouraged to designate that they do asset recovery as part their job. If you recover property for your company or for owners, email us to tell us you do, and we’ll make a note on your profile. 

Tags:  asset recovery  unclaimed property 

Share |
PermalinkComments (0)
 

UPPO Asks: How Do You Explain Unclaimed Property to Your Family?

Posted By Administration, Thursday, November 10, 2016

Periodically, UPPO asks members to respond to a question, sharing their ideas, insights, and experience. The recurring UPPO Asks feature is a compilation of their responses.

 

With Thanksgiving quickly approaching, you may be prepping for the inevitable awkward silences or being ready to swiftly transition conversation to something less divisive. So we recently asked several members: How do you explain unclaimed property to your family?

 

“I usually talk about those gift cards lying around in drawers, the credit for returned merchandise never applied to another purchase, or the summer paycheck that never went cashed. I tell them states require companies to send over that property after a certain period of time, and they have hired private firms to go around auditing companies to see if they have any property like that on their books. I represent the companies to ensure that what they pay over to the state truly is unclaimed property that is required to be reported, and not other amounts that the company is entitled to keep.”—Sara Lima, partner, Reed Smith

 

“I usually say something like this: ‘When we write a check to someone, if they don’t cash it, we have to send it to the state. That’s what I do.’ If they still appear somewhat interested, I’ll elaborate to say, ‘It gets complicated because the states all have different requirements and due dates so I have to keep track of them all which is a pretty big task.’”—Sherry Arkfeld, staff specialist/unclaimed property, Consolidated Communications

 

 

“I generally explain the concept of unclaimed property to friends and family using examples that they can relate to—unused gift cards or uncashed payroll checks. I further explain that contrary to public perception, those properties cannot be ‘kept’ by the holder, but instead are required to be reported to the state of the owner’s last known address after a certain period of time, depending on the state. I rarely dive into the fact that there are multiple reporting jurisdictions with little uniformity between them all.”—Christopher Jensen, director of abandoned and unclaimed property compliance, Ryan

 

 

“Whenever I try and explain unclaimed property to my family, friends or anyone not familiar with it, I usually just try and keep it simple. Typically I’ll use examples that everyone can understand, such as a payroll check. I explain that often when company issues a payroll check, or any other property type that is “owed” to someone, sometimes they remain uncashed. So far, so good.

 

“I then let them know that if an item remains unclaimed for a specific period of time set by a state law, e.g. three years, then the item is deemed to be ‘unclaimed’ or ‘abandoned’ and may have to be reported to the state as unclaimed property. I let them know that historically most companies would just void old uncashed checks, but that there were laws that actually required that these items be reported to the state. Most people begin to fidget about now.

 

“I explain that because the items was actually owed to someone else, it was not the issuer’s property, so they don’t get to keep it. They are required to 1) find the person to whom it’s owed or 2) remit it to the state so that it can locate the owner. I also explain that although a state will typically pay an owner the property it’s holding for them whenever they come forward, in the meantime it can use the money as part of its budget. At this point, most people are staring at a point somewhere over my head.

 

“Finally, I tell them that if the name and address of the owner can’t be found, the property goes to the state of incorporation of the issuer. Then I go for the big guns: Because unclaimed property is not a tax (remember, it’s money that’s actually owed to someone else), there’s typically no statute of limitations. I also explain that historically, unclaimed property audits have covered decades. That, and a very brief summary of how estimations work and the dollars involved, usually gets their attention.

 

“That what I usually do when asked about unclaimed property.”—Matt Chenowth, senior manager of unclaimed property, True Partners Consulting LLC

 

 

Now it’s your turn. How do you explain unclaimed property? Add a comment to this post to share your response.

 

 

Tags:  unclaimed property  UPPO Asks 

Share |
PermalinkComments (0)
 

Litigation update: Motions in Card Compliant whistleblower case raise noteworthy issues

Posted By Contribution from Sam Schaunaman, J.D. and GRAC member, Thursday, November 3, 2016

The State of Delaware, Plaintiff, and William Sean French, Plaintiff-Relator, v. Card Compliant LLC, et al., Defendants (Superior Court of the State of Delaware)

 

Background

Delaware ex rel. French v. Card Compliant LLC et al. (Card Compliant) is a qui tam case—a suit brought when a whistleblower exposes alleged fraud against the government with the incentive of receiving a portion of the recovery as a reward. The defendants include Card Compliant LLC, a third-party company that some defendants used to issue gift cards and assume certain gift card responsibilities, and numerous other defendants. Among the various allegations, the plaintiffs claim that some defendants didn’t account for the transfer of liability in the manner its contracts specified. According to the state’s allegations, the liability wasn’t truly transferred and, thus, defendants had the obligation to remit unclaimed property to Delaware but didn’t do so.

 

Motions to Dismiss

The Card Compliant case currently has approximately 80 defendants. As indicated in a recent order in the case, there are generally two main types of entities created by defendants in the case that are being closely examined. First, there are non-Delaware card issuers, which include card issuers affiliated with the Delaware retailers with which they contracted, which the order refers to as “giftcos.” Second, there are card issuers (including card companies, banks and financial institutions) not affiliated with the Delaware retailer with which it contracted, which the order refers to as “cardcos.” Some defendants have filed Motions to Dismiss and/or Motions of Summary Judgment, raising several issues:

  • Before this suit was brought, some defendants were the subjects of Delaware audits or voluntary disclosure agreements (VDAs). Thus, they believe they should be dismissed from the case under the Administrative Proceedings Bar in the Delaware False Claims and Reporting Act (DFCRA), which generally precludes parties from seeking liability based on transactions that have been the subject of a state-involved administrative proceeding. They argue that audits and VDAs fall within the established definition of “administrative proceeding” and, thus, should not be parties in this suit.
  • Under the DFCRA, the state is generally required to make an independent investigation of whistleblower claims before defendants are included in a qui tam action. Defendants point out that arguably the state did not make such an investigation. As such, the defendants argue that they should be dismissed from the case.
  • Before the action, it is alleged that certain Delaware officials generally held the position that unredeemed gift cards that emanated from out-of-state entities were not escheatable to the state. Thus, defendants don’t believe the state can claim they committed fraud, as they operated under the same position as the state.

 

Status

On Oct. 17, 2016, Judge Wallace ordered Delaware to produce all documents from 2001 forward related to Delaware VDAs or audits that indicate, among other things, the state’s prior positions on how gift cards were treated. Although unconfirmed, we have heard from reputable sources that the court has engaged the services of a mediator in an effort to resolve the pertinent issues in the Card Compliant case. 

 

This suit is one of the more interesting unclaimed property cases currently working its way through the court system. While it will likely be some time before the suit is either settled or decided, interested parties anxiously await the court’s resolution of the issues raised by recent defendant motions. UPPO will continue to monitor and report on developments in this case.

 

About the contributor

Sam Schaunaman, senior manager at Ryan AUP and member of the UPPO Government Relations and Advocacy Committee, contributes to UPPO’s monthly litigation update blog posts. Schaunaman has over 26 years of unclaimed property experience in all aspects of unclaimed property and is a frequent author of unclaimed property articles and whitepapers. Schaunaman is a member of the Oklahoma Bar Association and American Bar Association.    

 

Disclaimer: This case summary contains a general description of the case, and neither UPPO nor Ryan, or any of their affiliated or related entities, by means of this summary, is rendering business, financial, legal, tax, reporting or compliance or other professional advice or services.  This summary blog is not a substitute for such professional advice.

 

 

Tags:  Card Compliant  Delaware  gift cards  litigation  qui tam  unclaimed property  whistleblower 

Share |
PermalinkComments (0)
 
Page 7 of 45
1  |  2  |  3  |  4  |  5  |  6  |  7  |  8  |  9  |  10  |  11  |  12  >   >>   >| 
Membership Software Powered by YourMembership  ::  Legal