KeepUP™ Blog

The West Virginia State Treasurer’s Office (WVSTO) recently confirmed that holders will need to follow the changes made to their unclaimed property law as a result of the passage of House Bill 4511, which becomes effective June 10, 2022, for the upcoming Fall reporting cycle.

This short turnaround time for holders to become compliant with the new law highlights the need for holders to actively monitor legislative, regulatory, and administrative activity.

On March 29, 2022, the U.S. House of Representatives voted almost unanimously in favor of SECURE Act 2.0, also known as the Securing a Strong Retirement Act (H.R. 2954). SECURE Act 2.0 expands upon the retirement savings solutions set forth in the SECURE Act, which passed in December 2019.

We recently posted about CA AB 466, which became effective on January 1, 2022, authorized the Franchise Tax Board (FTB) to share information with the State Controller’s Office (SCO) related to compliance with California’s unclaimed property law. As a result, businesses must now provide the following information on business tax return forms:

• Has the entity previously filed an unclaimed property report with the SCO?
• If so, what was the date of the most recent report?
• What was the amount last remitted?

On February 16, 2022, a new bill was introduced in California, AB 2280, wherein the Legislature again references the FTB, estimating that since 2020, approximately 1.3 million business that have filed taxes with the FTB have failed to report unclaimed property to the state.

With Spring reporting due dates around the corner, holders are busy reviewing due diligence responses, and updating and reconciling their files. But what if a holder is already aware that they will not be ready to file timely reports to the states?   While businesses continue to feel the strain of the pandemic, in the form of staffing shortages and postal service disruptions, holders may also experience other business interruptions that could lead to reporting delays, including implementing new accounting systems, changes to transfer agents or other personnel changes, or undergoing a merger or acquisition.   In these cases, it is worthwhile to consider whether a reporting extension is available.

California AB 466, effective on January 1, 2022, provides the authority for the Franchise Tax Board (FTB) to share information with the State Controller’s Office (SCO) pertaining to a taxpayer’s compliance with California’s unclaimed property laws. To accomplish this, the FTB has added various questions to business tax returns for 2021, including:

• Whether the business entity previously filed an unclaimed property Holder Remit Report with the SCO.

• If so, the date of the most recent report.

• The amount last remitted.

Note that while this post uses the terms gift certificates and gift cards interchangeably, states generally define these terms either in their unclaimed property or general business law.

New York State Comptroller Thomas P. DiNapoli recently encouraged gift certificate owners in the state to spend their holiday gift certificates before they become lost, subject to inactivity fees or dormant.[1] Under New York’s unclaimed property law, gift certificates have a 5-year dormancy period, after which they must be reported as unclaimed property. Under state unclaimed property laws, businesses must report unclaimed funds to the states in accordance with the priority rules set forth by the U.S. Supreme Court in Texas v. New Jersey. [2] Under the first priority rule, property is reported to, or escheats, to the state of the owner’s last known address, according to the books and records of the company (a.k.a., holder). If the last known address is unknown, the property escheats to the holder’s state of incorporation (corporate domicile).

Merger and acquisition (“M&A”) activity is as dynamic as it ever has been even during the on-going global pandemic. The unclaimed property consequences of M&A transactions, however, tend to be an afterthought. Even when unclaimed property compliance is identified as a potential issue, it is most often only reviewed at a very high level, which may result in future problems. 

Holders have a statutory obligation under states’ unclaimed property laws to perform a final outreach to owners of unclaimed property before reporting the property to the state, known as a due diligence mailing. This mailing is the final attempt by the holder to reach the owner, thereby putting the owner on notice that if the owner fails to respond to the holder regarding his or her property within a certain period, the holder will be required by the state to escheat the property to the state.

Due diligence requirements, including the timing of the notice, the dollar amount above which notice is required, the method of delivery and even the content of the letter varies among the states. Performing due diligence is not only an important part of a holder’s compliance obligations, but it also aligns with the goal of the unclaimed property laws, which is to reunite the owner with his or her property, and reunification also assists holders with customer retention and satisfaction.

Businesses (also known as holders for unclaimed property purposes) are required by law to report and remit unclaimed property to the states on an annual basis. A typical holder reporting cycle involves the following, all of which are governed by state unclaimed property laws, and all of which can vary by holder type and/or property type.

Record retention refers to how long important information must be retained for future use or reference. Most financial and accounting processes have standards that need to be met because agencies such as the Internal Revenue Service, the Federal Deposit and Insurance Corporation, and the Public Company Accounting Oversight Board all have requirements. You may be familiar with the obligations for these well-known agencies. Do you know what is required for escheat compliance?

Companies generally maintain a schedule or policy for their escheat records that help define what will need to be kept and for how long. This is a worthwhile practice to meet requirements and have supporting documents available if requested or needed in the event of an audit.