Unclaimed Property Enforcement & Compliance Update
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- Reginald Houston
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1 Unclaimed Property Enforcement & Compliance Update D. French Slaughter, Esq. Partner McGuireWoods LLP Valerie M. Jundt, Managing Director Keane Advisory & Consulting Services December 6, 2012
2 Unclaimed Property Fast Facts Definition- Intangible personal property that has gone unclaimed by the rightful owner after a specified period of time Roots are in English common law: Escheat vs. Custodial Governed and enforced at the state level Fifty-four (54) reporting jurisdictions including DC, Puerto Rico, Guam and U.S. Virgin Islands No two laws are exactly the same Foreign countries, including three Canadian provinces have unclaimed property laws 2
3 Rules of Jurisdiction Texas v. New Jersey 379 U.S. 674 (1965) State of owner s last known address State of holder s incorporation or domicile if address not known * State of holder s incorporation or domicile if address of apparent owner is in a foreign country and if holder is incorporated or domiciled in the U.S. *Provision added in the 1981 Uniform Act Note- after nearly 50 years, this remains the law of the land today 3
4 Fast Facts and Terminology Due Diligence Dormancy (holding) period Due date and cut-off date Aggregate amount Negative or Zero reports Activity vs. non-activity, RPO and lost Affidavits Holder/Owner Estimation, Extrapolation and sampling Records retention Electronic reporting Burden of proof Exemptions Third-party (contract) auditor Contingency Fee 4
5 Unclaimed Property Fast Facts Acronyms TPA UP vs. AP EFT NAUPA NAST NCOIL COST VDA 5
6 How Unclaimed Property Differs from a Tax Enforcement authority differs from state to state (treasury, tax, land.) Use of contract auditors Derivative rights doctrine (state stands in the shoes of the owner) Nexus does not apply (triggered by addresses and state of incorporation) With few exceptions, there is no statute of limitations Records retention requirements and look-back periods, not defined Few states have a formal administrative appeals process Agency and Political Head that governs (varies from state to state) Filing deadlines and requirements vary greatly Escheat is not an unconstitutional taking if the action: Is provided for by legislation; Includes notification provisions; Contains reasonable abandonment periods (trend is for states to decrease these period for a one time revenue push); and Provides the return of property to the rightful owner upon satisfactory proof of ownership 6
7 Sarbanes-Oxley Unclaimed Property Compliance Section 302 requires that CEOs and CFOs include, with any periodic financial report filed at the SEC, a written statement certifying disclosure controls and procedures Internal control is a significant focus of Sarbanes-Oxley due to recent financial and accounting scandals Section 404 review includes an assessment of the design and operating effectiveness of internal controls for significant accounts Compliance by SEC registrants is non-negotiable. Failure to properly disclose Unclaimed property contingencies could result in a violation of Sarbanes-Oxley Requirements 7
8 Current Trends & Regulatory Environment Everyone wants a piece of the Action! New and more aggressive contract auditors are surfacing Federal Consumer Protection Agency is getting involved Federal Gift Card regulations vs. state unclaimed property laws Class Action Lawsuits Robbins Umeda LLP Shareholder Rights Firm is investigating publicly traded companies Whistleblower Incentives Source Gas 8
9 Delaware Regulation 965: Due Diligence Required for Securities Property On March 3, 2012, Delaware Regulation 965 was finalized. Regulation 965 titled, Regulation on Practice and Procedure for Establishing Running of the Full Period of Dormancy for Certain Securities and Related Property creates a new obligation to perform due diligence in Delaware with respect only to Securities and Related Property. Securities and Related Property is defined to mean Property that consists of: intangible ownership interests in corporations, whether or not represented by a stock certificate, bonds and other securities dividends, cash, stock and other distributions made (or attempted to be made) by issuers of securities in respect of the securities issued certificates of membership in a corporation or association funds deposited by a Holder with fiscal agents or fiduciaries for payment to Owners of dividends, coupon interest and liquidation value of stocks and bonds funds to redeem stocks and bonds. Under the new regulation, holders will now be required to attempt to contact an apparent owner of securities and related property, where the property has a value of $250 or more. A first class letter must be sent no more than 120 days and no less than 60 days before reporting the property. Notice is not required if the Holder has no record of an address or if the Holder has already given notice to the apparent owner in substantially similar form under other existing state or federal laws within 90 days of the required time period set forth in this regulation. If any letter is returned to the Holder undelivered, or if any letter appears to have been delivered but the apparent owner of the property fails to respond to the letter before the Holder s report of Abandoned Property is due, the Securities and Related Property shall be deemed Abandoned Property against which a full Period of Dormancy has run. Holders may charge the cost of postage and other reasonable administrative costs, not to exceed five dollars per mailing, against the Securities and Related Property. The new regulation became effective 3/31/12. 9
10 Delaware 12 Del.C Delaware-dormant securities-related property (9)a. Period of dormancy means the full and continuous period of 5 years, except a period of 15 years for traveler's checks, during which an owner has ceased, failed or neglected to exercise dominion or control over property or to assert a right of ownership or possession or to make presentment and demand for payment and satisfaction or to do any other act in relation to or concerning such property. Notwithstanding the foregoing, period of dormancy means the full and continuous period of 3 years with respect to intangible ownership or indebtedness in a corporation or other entity whether or not represented by a stock certificate or other certificate of membership, bonds and other securities including fractional shares, interest, dividends, cash, coupon interest, liquidation value of stocks and bonds, funds to redeem stocks and bonds, and distributions held by financial intermediaries. b. A full period of dormancy shall be deemed to have run with respect to any dividends or other distributions held for or owing to an owner at the time a period of dormancy shall have run with respect to the intangible ownership interest in a corporation partnership, statutory or common law trust, limited liability company, or other entity to which such dividend or other distribution attaches... 10
11 Transfer Agents Payroll Rebates, etc Role & Responsibilities of Third-Party Agents (TPA) The contract is key! Who is responsible for filing UP reports? Who retains copies of UP reports? What is record retention policy? What if TA no longer exists? What will it cost to retrieve records? What will it cost to respond to audit requests?
12 Struggling economy = UP enforcement goes up Current Trends & Regulatory Environment Not a tax but some states are treating it like one Delaware- 3 rd largest source of revenue- included projections in their annual budgets Michigan- Amnesty ended 12/31/2011- multiple reporting requirements within the same 12 month period and lowered their dormancy period retroactively Assessing Penalties & Interest on past-due property New Jersey- gift card legislation Texas- multiple filing deadlines and dormancy reduction New York- subpoenas issued to life insurance Florida- initiated multi-state audit focus on insurance industry California- issued invoices for past-due property filed and reported over five years ago 12
13 Legislative & Regulatory Trends Changing Reporting Deadlines To Collect Property Faster (MI and TX) Adding New Rules Or Policies To Cut Administrative Burdens Or Reduce The Ability To Reunite The Owner With Their Funds (RI) Adding New Rules To Respond To Unique Situations (NV) Specific Authority To Contract For Audits and Create an Estimate Whistleblower Incentives States are sending invoices for interest & penalties AND audit costs! 13
14 California Class-Action Lawsuit Delaware legislation- 5-3 years on securities McKesson Source Gas What every public company needs to know Delaware communication through the STA regarding statutory interpretation for tracking dormant shareholders (inactive vs. RPO) Delaware Due Diligence Regulation (adopted as of 3/21/2012) For securities-related items valued at $250 Administrative rules vs. statutory guidance Ohio & New Jersey liquidation requirements 14
15 Contract auditors States Outsourcing Compliance Kelmar Concentration on all publically traded companies Expanding and reopening audits with a focus on the TPA s Verus California expanded to include insurance market conduct studies Posts an incentive encouraging employees or clients to Blow the Whistle Xerox Unclaimed Property Clearinghouse (formerly ACS) First contract auditor (1984) primarily voluntary audits mainly securities Audit Services Ltd Former state administrators/auditors from NC Discovery Audit Services Ltd Methodologies and skill set What oversight does the state exercise over contract auditors? What do auditors do in the absence of records? How and when are interest and penalties applied? What recourse is available for a holder who disputes a state s audit findings? 15
16 Located in the Department of Revenue Not subject to open records law Approaches UP compliance like a tax Recently adopted appeals process Reachback in Audit VDA reachback 1992 Records retention requirement is silent Penalties could more than quadruples principal amounts due The Perfect Storm if you are incorporated in Delaware Interest = 12 Del. C authorizes assessment of 5% interest per month, not to exceed 50% of the principal amount Penalties = 25% Negligence Fee = 10% Filing a Fraudulent Report = 75% 16
17 There is a light. SB258 Transfers the VDA Responsibility from the DOR to the DE SOS Limits the reachback Agrees NOT to initiate an audit once the deliverable has been approved Agrees to waive all P&I upon satisfactory deliverable and approval Criteria & Process Cannot have been already selected for an audit Outsourced to a law firm (Drinker Biddle) Process has yet to be defined, but close 17
18 Critical Considerations Where to go from here 18
19 The Audits are Coming/Here! The Insurance Industry, Brokerage and Mutual Fund industries have all seen an increase of audits from third-party audit firms. The three main players are: Xerox Unclaimed Property Clearinghouse (Formerly ACS) Kelmar Verus Why? Third-party audit firms believe the brokerage industry has not been in compliance with reporting dormant accounts. Many brokerage firms only escheat based on lost. Whistleblower Incentives Brokerage industry not subject to SEC17Ad-17 search yet. 19
20 Current Enforcement & Political Landscape Impact of economic crisis on state budgets. Unclaimed property is a tremendous source of revenue to the states Currently holding over $35B States are intensifying search for additional revenue without raising taxes. New Appointed or Elected Agency Heads Translation = Increasing Audits. States have tapped into unclaimed property funds to meet budget shortfalls. 20
21 More audits; more aggressive stance during audit New players/limited or little specific UP experience Reduced dormancy periods Current Enforcement & Political Landscape (continued) Looking for new abandoned property types (e.g. digital property; uninvoiced receipts) Refusal to waive interest for non-compliance under audit Good news perhaps greater willingness to permit voluntary disclosure to bring in revenue while avoiding costly audits (DE, MN, IA, FL, et al ) 21
22 Audits Why now? Increased competition among the third-party firms. Insurance audits resulting in huge settlements. More lost and dormant accounts prior to SEC 17Ad-17 becomes effective. More states are focusing on customer generated contact vs. RPO. Retirement accounts are coming of age. State legislatures are supporting and dedicating more resources to state unclaimed property offices. 22
23 Audits Be proactive Preparing for 2013 and Beyond Critical considerations and team The role of Counsel The role of the Unclaimed Property Specialist/Consultant SEC 17Ad-17 It s coming Realize the benefits Understanding the costs o System updates for tracking RPO s o Savings on reducing mailings o Search and mailing costs o Savings on reduced escheatment Dormancy Periods Will continue to trend downward 23
24 Teaming Considerations Engaging outside Counsel Critical considerations and advantages for engaging external counsel Documents and records are protected under privilege Legal interpretation and guidance on areas not covered under the law Legal guidance on statutory exemptions and other options to avoid overescheatment Unclaimed Property Specialist/Consultant Forensic accounting and administrative experience Unique understanding of the required process Greater efficiencies to support with resource constraints Working with Counsel to create a comprehensive and defensible deliverable in order obtain a favorable result 24
25 Where do I go from here? Establish and TEST internal policies & procedures Early Remediation of potential unclaimed transactions Employ internal research and external communication efforts Reconcile and Update Vendor and Customer files Motivate Staff to consistently engage in remediation Staying current is easier than researching in audit mode Maintain Documentation this is critical Confirm your company s Filing Status (parent vs. subsidiaries filings) and Past Reporting Practices 25
26 Best Practices Support Proactive Due Diligence to maintain contact with vendors and customers. Identify areas of Potential Exposure (current and past due) Consider an independent specialist to partner with you Consider Voluntary Compliance Agreements (VDA s) in jurisdictions where exposure exists Implement strong written Policies & Procedures to identify, track, and report unclaimed property Establish a Committee Approach to address changes that could impact unclaimed property; for example mergers & acquisitions, accounting program changes, new IT systems and create timelines 26
27 Get C Suite Executives involved (and early) Involve Legal and Chief Risk Officer EARLY Seek and independent review and assess potential risk Determine your company s filing status Confirm and test current policies and procedures Best Defense is a Better Offense Review and confirm that copies of all unclaimed property reports are being retained and readily available Establish proactive measures relating to Merger/Acquisition Know and understand your company s organizational structure Consider voluntary compliance programs in jurisdictions where exposure exists Implement policies, procedures and mechanisms through which to report Review contracts with all third party providers to identify and confirm reporting responsibilities Train and inform team members Begin your compliance program today 27
28 The Newly adopted State of Delaware Voluntary Compliance Initiative Special Guests: The Honorable Secretary of State - Jeffrey Bullock Geoffrey A. Sawyer, Esq Drinker Biddle & Reath LLP 28
29 Questions D. French Slaughter Partner, McGuireWoods LLP
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