KeepUP™ Blog

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.

The next scheduled rounds of invitations to enroll in the Delaware Secretary of State’s (SOS) voluntary disclosure program are expected to be sent on February 18, 2022, and then again on May 20, 2022.

 Under Delaware law, the SOS must first notify the holder in writing that it may enter the VDA program prior to initiating an unclaimed property examination (audit). Holders who do not enroll within the 90-day notice period will be referred to the Department of Finance for audit.

If your company is incorporated in Delaware or has significant operations in Delaware, be on the lookout for these letters, or any letters from either the Secretary of State or the Department of Finance.

The Delaware Secretary of State (SOS)  indicated its intent to mail the latest round of VDA invitations on or about February, 18, 2022. 

Under Delaware law, the state cannot initiate an unclaimed property examination (audit) unless a company has first been notified in writing by the SOS that it may enter into the SOS VDA Program. Holders who do not enroll in the VDA Program within the 90-day notice period set forth in the letter will be referred to the Department of Finance for an unclaimed property audit.

As VDA invitations may be addressed to senior corporate executives, they often do not reach the person or group responsible for unclaimed property compliance in time to meet the 90-day deadline to prevent an audit.

Updates to the Delaware VDA Program and to Audits in Delaware per

DE SB 104

Delaware Senate Bill 104, effective on August 1, 2021 (though some provisions will apply retroactively) significantly modifies the enforcement scheme in Delaware.

• VDA invitation response time increased. The timing for holders to respond to a VDA invitation is increased from 60 to 90 days. Holders who receive an invitation may choose to either enter the VDA program or request to enter the expedited audit program (see below). As a reminder, a holder who does not enter the VDA program or the expedited audit program will be referred to the State Escheator for a full audit.
• Permanent expedited audit program.   Entry into the expedited audit program may be granted or denied at the discretion of the State Escheator, who must respond to a holder’s request to enter the expedited audit program within 60 days.
   
  • Holders are eligible to request an expedited audit for:
    
    
    • New audits authorized after August 1, 2021
    • Current audits authorized after February 2, 2017, and before August 1, 2021
    • VDA invitations received as of August 1, 2021
  • If the holder provides “sufficient responses” to the auditor’s requests, an audit report will be provided by Delaware to the holder within 2 years of the date of the acceptance into the expedited audit program.

Unclaimed property holders need to stay vigilant about checking the mail. The DE Secretary of State (SOS) has indicated its intent to send out the latest round of VDA invitations on or about May 28, 2021. VDA invitations are sent several times per year to companies that are identified by the state as “likely being out of compliance” with Delaware’s unclaimed property law. 

Under Delaware law, the state cannot initiate an unclaimed property examination (audit) unless a company has first been notified in writing by the SOS that it may enter into the SOS VDA Program. Holders who do not enroll in the VDA Program within the 60-day notice period set forth in the letter will be referred to the Department of Finance for an unclaimed property audit.

We recently posted about the importance of checking the mail for letters inviting holders to participate in the Delaware Secretary of State’s Voluntary Disclosure Agreement (VDA) program. Delaware is scheduled to mail a new round of VDA invitations on May 14^th. More states are beginning to join this outreach trend. Maine and Massachusetts appear to be joining states like Nevada and Washington in mailing targeted outreach to holders regarding their compliance with the unclaimed property laws, which can take the form of self-audit questionnaires or invitations to self-audit books and records, and often disclose that they will be assisted by a third-party auditor in the process.

Delaware continues to focus on unclaimed property compliance, with its’ Voluntary Disclosure Agreement (VDA) program at the forefront of this push.  The DE Secretary of State (SOS) has indicated its intent to mail the latest round of VDA invitations on or about February 19, 2021. VDA invitations are sent several times per year to companies that are identified by the state as “likely being out of compliance” with Delaware’s unclaimed property law. 

MarketSphere Unclaimed Property Specialists has learned that the state of Delaware’s Department of Finance recently mailed unclaimed property audit notices to US corporations incorporated in Delaware. The audit notices target those holders who did not enroll in the Delaware Secretary of State’s Voluntary Disclosure Agreement (VDA) Program within the 60 days of receiving an invitation letter to participate. The invitation letters put the holder on notice that the state believes the holder to be out of compliance with Delaware’s unclaimed property law and invites them to participate in the VDA Program to bring them into compliance. If the holder does not enroll in the VDA Program within 60 days, they are referred for audit.

Corporations both large and small, public, or private can receive a VDA invitation. Under Delaware law, the state cannot initiate a new unclaimed property examination (audit) without first notifying the company that it may enter into the VDA Program (12 De. C. Ch. 11, section §1172). The invitations put the company on notice that if the holder does not enroll in the VDA program within 60 days of the date of the letter, the company will be referred for audit. The Secretary of State mailed approximately 200 invitations in August. Companies who did not enroll in the VDA Program within the 60-day period, may already have, or will soon receive audit notices from the Department of Finance.

States often send official communications to companies regarding unclaimed property. While some of these mailings are mere filing reminders, other types of communications, such as VDA invitations, audit letters, and self-audit letters, urge holders to take affirmative steps to comply or demonstrate compliance with the unclaimed property laws. We will discuss some, but not all of these types of communications, to assist companies in understanding what each one means, and what holders should consider upon receipt of such a communication.  

Delaware – VDA Invitations and Audit Notices:

We recently posted that the Delaware Department of Finance is expected to send new unclaimed property audit notices in the near future to businesses who did not enroll in the state’s Voluntary Disclosure program (VDA program) in response to the Secretary of State’s invitation to participate in the program. Under Delaware law, businesses who do not enroll within the 90-day notice period in the letter will be referred to the Department of Finance for an unclaimed property audit.

Indiana, Pennsylvania, Utah and Washington: The Self-Audit Letter

Indiana, Pennsylvania, Utah and Washington have recently started mailing holders letters on official state letterhead that advise holders of their obligation to comply with the unclaimed property laws. Further, the letter proclaims that based on the state’s records, the holder “has never” or “only rarely” reported unclaimed property to the state.

MarketSphere Unclaimed Property Specialists has learned that the state of Delaware will soon be mailing unclaimed property audit notices to those companies who did not respond to the latest round of invitations sent by the state on August 21, 2020 to enroll in the Secretary of State’s Unclaimed Property Voluntary Disclosure Program (VDA program). Approximately 200 holders received these letters, which notify the holder that it is “likely out of compliance” with Delaware’s unclaimed property law and inviting them to participate in the VDA program. Any company can receive a VDA invitation, including public or private corporations, large Fortune 500 companies and smaller companies.

In accordance with Delaware law, the state cannot initiate a new unclaimed property examination (audit) without first notifying the company that it may enter into the Secretary of State’s VDA program (12 Del. C. Ch. 11, section §1172).   These letters put the company on notice that if the holder does not enroll in the VDA program, the Secretary of State’s Office will refer the company to the Delaware Department of Finance, who will issue an unclaimed property audit notice upon the expiration of the 60-day notice period.