Significant Changes Made to Pennsylvania s Unclaimed Property Law

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1 Significant Changes Made to Pennsylvania s Unclaimed Property Law Raymond P. Pepe 1 K&L Gates LLP In an attempt to generate additional revenue to balance Pennsylvania s General Fund Budget, on July 10, 2014, the Commonwealth s Unclaimed Property Law was amended to shorten the period of time after which certain types of abandoned and unclaimed property must be transferred by any person in possession, custody, or control of the property to the State Treasury for safekeeping. The legislation (Act 126 of 2014) also grants substantially enhanced powers to the State Treasurer to enforce the Unclaimed Property Law; provides additional standards to determine whether unclaimed property must be transferred to the State Treasury; and requires the registration and regulation of commercial finders of unclaimed property. 2 The legislation immediately took effect upon its approval by the Governor on July 10, 2014, except for provisions relating to the registration and regulation of finders, and new criminal penalties for violations of the Unclaimed Property Act, that will take effect on January 6, Background Similar to the laws in effect in most other states, the Pennsylvania Unclaimed Property Law creates a presumption that the property of a person (i.e., the owner ), in possession, custody or control of another person (i.e., the holder ) becomes abandoned and unclaimed after designated periods of time (which vary depending on the type of property held) unless the holder is aware of information sufficient to overcome the presumption of abandonment. 3 The presumption that 1 Mr. Pepe is a member of the law firm of K&L Gates LLP (17 N. Second Street, Harrisburg, PA, , , He served on the committee of the Uniform Law Commission that adopted the 1995 version of the Uniform Unclaimed Property Law and is a member of the committee appointed by the Uniform Law Commission to revise and update the 1995 Uniform Act. This article is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer K&L Gates LLP. All Rights Reserved. 2 House Bill 278, Printer s No (Approved as Act 126 of 2014 on July 10, 2014) (full text available at 3 The unclaimed property laws of most states are similar because most state laws are modeled in whole or in part on one or more versions of the Uniform Unclaimed Property Law promulgated by the Uniform Law Commission. The Commission originally issued a Uniform Unclaimed Property Law in 1954, and subsequently amended the Uniform Act in 1966, 1981, and Pennsylvania s current law is modeled most closely on the 1966 Uniform Act, but also incorporates provisions of the 1981 and 1995 Uniform Acts. The 1995 version of the Uniform Act is expected to be further revised by the Uniform Law Commission in

2 property is abandoned and unclaimed can be overcome by records of the holder indicating that the owner engaged in transactions involving the property, communicated with the holder, or otherwise indicated an interest in the property prior to the end of the period of presumed abandonment. If the presumption cannot be overcome, the property is treated by operation of law as abandoned, and must be transferred (or escheated) to the State Treasurer for safekeeping. For any property in the possession, custody or control of a holder that became abandoned and unclaimed during a calendar year, the holder must file a report with the State Treasurer s Office by April 15 of the following year identifying the property and, together with the report, must deliver the property to the State Treasurer. Property in the possession, custody, or control of a holder must be reported to and surrendered to the State Treasurer even if any period of limitations during which the owner could demand the return of the property from the holder has expired. The State Treasurer may at its discretion retain possession of abandoned and unclaimed property, or, after a reasonable time, sell the property at public sale to the highest bidder. Property in the possession of the Treasury, plus any income or increments to the property received by the State Treasury, or the proceeds of the sale of the property, however, must be returned to any person able to provide evidence to the State Treasurer of their ownership rights to the property. Property not returned to owners is transferred to the General Fund of the Commonwealth, except for a reserve to pay claims equal to 20 percent of the amount transferred to the State Treasurer during the immediately prior year. For fiscal year , the State Treasury received payments of approximately $251 million of unclaimed property from holders and paid claims of approximately $98 million to owners of unclaimed property that submitted claims to recover amounts transferred to the custody and control of the State Treasury. For fiscal year , the reduction of holding periods for several classes of property was projected to increase payments to the State Treasury of $423 million, and to increase the amount of claims paid to property owners to recover escheated property to $105 million. 4 The periods of time after which property is presumed to be abandoned and unclaimed absent some contact, communications or transactions with owners range from one year for most types of tangible personal property to 15 years for traveler s checks. The most common period of time in which property was presumed abandoned and unclaimed under prior Pennsylvania law was five years. The five year dormancy period applied to all types of property other than bicycles (subject to a 90-day dormancy period); other types of tangible personal property, payroll and commissions, court ordered utility refunds, and property distributable in the course of dissolution of a business association (subject to a two-year dormancy period); money orders (subject to a seven-year dormancy period); and traveler s checks (subject to a 15-year dormancy period). In approximately half the states, however, periods of presumed abandonment for types of property previously subject to Pennsylvania s five year dormancy period have been reduced to three years. 4 Governor s Executive Budget , p. C

3 Abandoned and unclaimed property must be transferred to the State Treasurer if it is tangible property physically located in Pennsylvania; or if it is intangible property and the last known address of the owner of the property is located in Pennsylvania, the last known address of the owner is in a jurisdiction without an unclaimed property law and the holder is domiciled in Pennsylvania, or the address of the owner is unknown and the domicile of the holder is in Pennsylvania. Under rules adopted by the U.S. Supreme Court, the domicile of a holder is the holder s state of incorporation or legal formation, regardless of the holder s principal place of business. 5 For money orders, traveler s checks, and similar instruments on which a financial organization or business association is directly liable, federal law determines whether amounts due on unclaimed instruments may be claimed by Pennsylvania or another state. Amounts due on unclaimed money orders, traveler s checks, and similar instruments may be claimed by Pennsylvania if (1) the books and records of the holder show the instrument was purchased in Pennsylvania; (2) the books and records of the holder do not show where the instrument was purchased, but the holder has its principal place of business in Pennsylvania; or (3) the instrument was purchased in a state that does not provide for the escheat of money orders, traveler s checks, or similar instruments, and the holder has its principal place of business in Pennsylvania. 6 Upon the transfer of abandoned and unclaimed property to the State Treasurer, the prior holder of the property is relieved of all liability with respect to safekeeping of the property. Holders may also transfer property with the consent of the State Treasury prior to the period of time the property is presumed to be abandoned and unclaimed, and upon the transfer of such property to the State Treasurer, are similarly relieved of liability to the owner of the property for its safekeeping. To enforce the Unclaimed Property Law, prior law granted the State Treasurer the authority at reasonable times and upon reasonable notice, to examine the records of any holder that has failed to report property that should have been reported as abandoned and unclaimed. In addition, if a holder fails to maintain records sufficient to prepare reports, the State Treasurer may reasonably estimate the amount required to be paid by the holder. If a holder upon written demand refuses to pay such amounts, the Treasurer may bring an action in a court of appropriate jurisdiction to compel reports and the transfer of property to the State Treasury, and pay a 12 percent annual interest charge, and fines of $100 per-day, but not more than $10,000. No statute of limitations is imposed on claims by the State Treasury that holders have failed to report and transfer property to the Treasury, but if reports have been filed, claims that the full amounts due have not been paid must be commenced within 15 years of the date that the reports were filed. Upon good cause, the State Treasurer may waive, in whole or in part, interest and penalties due for the failure to file unclaimed property reports or remit amounts due to be transferred to the 5 Texas v. New Jersey, 379 U.S. 674, 682 (1965) U.S.C et seq. 3

4 State Treasury. Based on this authority, the State Treasurer has established a voluntary compliance program by which holders of property who file up-to-date reports and remit amounts due, may request relief from interest and penalties. In order to participate in the Voluntary Compliance Program, a holder must: Not be under audit or self-audit for past due unclaimed property reporting; Not have participated in the Voluntary Compliance Program in the past 10 years, unless compliance issues are the result of a holder managing new types of property or acquiring obligations as a result of a merger or acquisition; Execute a Voluntary Compliance Agreement and report within 90 days execution of the agreement all unclaimed property identified through a complete audit of its books and records for the last five years, plus five years prior to the end of the dormancy period for each class property being reported (i.e., eight years for property with a three-year period after which it is presumed to be abandoned and unclaimed); Disclose the corporate structure of the holder, including all subsidiaries or related entities, and provide justification for the omission of subsidiaries or related entities from inclusion in audit procedures and the remittance of unclaimed property; Disclose all business positions, methodologies and estimation techniques (if applicable) used in the determination of reportable property, and provide a complete list of property types and accounts reviewed to determine the unclaimed property liabilities; Disclose any methods of due diligence performed to advise owners of their right to claim property in the possession, custody or control of holders; Verify the completeness of records provided to the State Treasury and explain why any records are missing or unavailable; and Agree in the future to be fully compliant with the Pennsylvania Unclaimed Property Law, perform an annual review of all financial records for abandoned and unclaimed accounts, and file complete, accurate and timely unclaimed property reports. The Pennsylvania Unclaimed Property Law also provides that agreements or powers of attorney executed by finders to recover lost property for owners are valid and enforceable only if the agreements are in writing and signed by the owner; clearly state the fee to be paid to the finder which may not exceed 15 percent of the value of the property; and disclose the nature and value of the property, the name and address of the holder, and whether the property has been transferred to the custody and control of the State Treasurer. These requirements do not apply to powers of attorney authorizing the recovery of property for a fixed fee or hourly or daily rate not contingent on the discovery of property or the value of any property discovered. In addition, the restrictions imposed on finders fees do not prevent an owner of abandoned property from contesting whether fees charged for the recovery of abandoned property are excessive or unjust. 4

5 In addition to transferring abandoned and unclaimed property to the State Treasury, persons who formerly held unclaimed property may make payments equivalent to amounts transferred to the State Treasury to the property owners and, upon proof that such payments have been made, recover the amounts paid from the State Treasury, plus interest in the amounts otherwise payable for the overpayment of taxes. Financial institutions after transferring property to the State Treasury, are required to make payments to any person appearing to the financial institution to be entitled to recover property transferred to the State Treasury. As used in the Unclaimed Property Law, the term financial institution means a bank, trust company, credit union, or any issuer of checks, money orders, or similar monetary obligations. Deemed Abandonment Periods Shortened from Five to Three Years Following the practices in 24 other states and the District of Columbia, Act 126 reduces the period of time after which property is presumed abandoned and unclaimed from five to three years for the following types of property: 7 Demand, savings, or matured time deposits in financial institutions and funds paid toward the purchase of shares or other interests in savings associations. Amounts payable on checks or written instruments, including drafts, money orders, and travelers checks, on which a financial institution is directly liable. Property removed from safe deposit boxes and other safekeeping repositories on which the lease or rental period has expired due to nonpayment of rental charges or other reasons, and surplus amounts arising from the sale thereof such property. Amounts due and payable by insurance companies under annuity contracts or life insurance policies, or on life insurance policies not matured by actual proof of the death after insureds attain limiting ages under mortality tables used for the calculation of reserves. Amounts due and payable by insurance companies under contracts other than annuity contracts or life insurance policies, including premiums or deposits returnable or dividends payable to policy or contract holders or other persons entitled to such amounts. Customer advances, tolls, deposits, collateral, and any other property held by utilities that is due or demandable. The consideration paid for gift certificates or gift cards for which redemption periods are not specified. 7 Other states that use a three-year period of presumed abandonment for the same or similar categories of property are Alabama, Alaska, Arkansas, California, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Minnesota, Nevada, New Jersey, North Dakota, Ohio, Rhode Island, South Dakota, Texas, Utah, Vermont and Washington. Most of the remaining 26 states use fiveyear abandonment periods for such property. 5

6 Undelivered stock certificates or participating rights in business associations. Dividends, profits, distributions, payments, or distributive shares of held or owing by business associations. Principal or interest due on the business association bonds, debentures, or coupons. Certificates or participating rights due by cooperatives to participating patrons. Property held in a fiduciary capacity for the benefit of another person that is payable or distributable. Property held for the owner by any court, public corporation, public authority, or instrumentality of the United States, the Commonwealth of Pennsylvania, or any other state, or by a public officer or political subdivision that is demandable or distributable. Restitution held by any court, public corporation, public authority or instrumentality, or by any public officer or political subdivision that is demandable or distributable. All other property admitted in writing by holders adjudicated to be due held or owing in the ordinary course of the holder's business not subject to another specified period of presumed abandonment that is payable or distributable. The category of all other property due and owning in the ordinary course of a holder s business not subject to another specified period of presumed abandonment covers a wide range of different types of property. Examples of the types of property that fall into this catch-all category include unclaimed accounts payable, credits in accounts receivable, unapplied advance deposits, escrow accounts, uncashed checks, royalties, unpaid commissions, and amounts received as deposits. These provisions were estimated to generate a one-time cash flow benefit to the State Treasury of $150 million, but the actual additional revenue generated may be less because on average states with three-year abandonment periods return percent of property to owners, but states with five-year abandonment periods return only 29.4 percent of property to owners. 8 Enhanced Enforcement Powers The amendments give the State Treasurer broad new enforcement powers to compel the filling of unclaimed property reports and the transfer of unclaimed property to Pennsylvania State Treasury. The amendments: 8 Report of the National Association of Unclaimed Property Administrators to the Uniform Law Commission. The comparison may be skewed by the presence of Delaware, which returns only approximately four percent of unclaimed property to owners, in the group of states with five-year dormancy periods. 6

7 Authorize the State Treasurer to require any person who has not filed a unclaimed property report, or filed a report the Treasurer believes is inaccurate, incomplete, or false, to file a verified report stating whether and to what extent the person is holding reportable property; Expand the authority of the State Treasurer to conduct examinations to determine compliance with the Unclaimed Property Act, and authorize the costs of examinations to be assessed against holders not properly reporting or remitting unclaimed property to the State Treasury; Authorize the State Treasurer to share reports and records of examinations with unclaimed property administrators in other jurisdictions; and Authorize new civil and criminal penalties for failures to comply with the Unclaimed Property Law. These enhanced enforcement powers took effect on July 10, 2014, except for the criminal penalty provisions, which will not take effect until January 6, A. Expanded Reporting Requirements The amendments give the State Treasurer the authority to require any person who has not filed an unclaimed property report, or that the Treasurer believes has filed an inaccurate, incomplete or false report, to file a verified report stating whether the holder, or agent of the holder, is holding reportable property. Such a report must describe any property not previously reported, or about which the Treasurer has made inquiry, and identify and state the amounts of such property that may be in issue. As a prerequisite to require the filing of verified reports, Act 126 does not appear to require the Treasurer to have probable cause to support his or her belief that required reports have not been filed or are inaccurate, incomplete, or false. Notwithstanding this broad grant of authority, the State Treasurer has indicated that he does not intend to request the submission of verified reports absent reasonable cause to believe that reports have not been filed when due, or that information submitted is inaccurate, incomplete or false. When verified reports are requested, the information required to be provided is not limited only to unclaimed property, but also includes any property about which the Treasurer has made inquiry. For example, the Treasurer may inquire into why certain property has been determined not to be unclaimed, or why certain property is regarded as being held for the benefit of other persons with putative ownership rights in the property. B. Examinations The amendments modify authority granted to the State Treasurer to conduct examinations by eliminating the requirement of prior law that the Treasurer has reason to believe that any holder has failed to report property that should have been reported. Instead, the Treasurer is granted broad authority to conduct examinations at reasonable times and upon reasonable notice of the 7

8 records of any person, or a person s agent, to determine whether the person has complied with the Unclaimed Property Law. Examinations may be conducted even if the person subject to the examination believes it is not in possession of any property that must be reported, paid or delivered to the Treasury. In addition, the State Treasurer may contract with any other person to conduct examinations, the selection of whom shall not be questioned. While these amendments shield the selection of agents from review, they do not prohibit challenges to the work performed by agents selected to conduct examinations, including challenges to estimates of liabilities based upon the qualifications or competence of the agents. Notwithstanding the authority granted by Act 126 to the State Treasurer to conduct examinations and require the filing of verified reports regardless of whether the State Treasurer has reasonable cause to believe that holders have failed to properly file unclaimed property reports, federal law provides that state auditors and examiners are only authorized to conduct examinations of a national bank or federal savings association to ensure compliance with applicable State unclaimed property or escheat laws upon reasonable cause to believe that the bank [or savings association] has failed to comply with such laws. 9 In addition, under the Pennsylvania Department of Banking and Securities Code, civil investigations, administrative enforcement actions, examinations, and other administrative proceedings may be exercised with respect to institutions and licensees subject to regulation by the Department of Banking and Securities, credit unions, and foreign financial institutions only after notice to and consultation with the Department of Banking and Securities, and to the extent authorized by the department on a caseby-case basis. 10 In a manner consistent with the limitations imposed by federal law on examinations of national banks and savings associations, in utilizing the expanded examination authority granted by Act 126, the Treasury Department has indicated that it intends to conduct examinations only when it has reasonable cause to believe required reports have not been submitted or reports submitted are incomplete, false or inaccurate. In addition, with respect to examinations of financial institutions, the Treasury has indicated that it will advise the Department of Banking and Securities prior to undertaking examinations and will consult with the department as requested. The power granted by the amendments to conduct examinations of agents of holders includes the power to examine the records of dividend disbursing agents, transfer agents, and financial institutions that serve as agents of business associations. Any examination of disbursing agents, transfer agents, and financial institutions acting as agents for business associations, however, requires at least 90 days advance notice to both the agents and the business associations for which they act as agents. If examinations result in the disclosure of reportable property held by business associations or financial institutions, the amendments grant the State Treasurer the authority to assess the costs of examination against the property holders at the rate of $200 a day for each examiner, or in any 9 12 U.S.C. 484(b), P.S

9 greater amount that is reasonably incurred, provided that assessments may not exceed the value of the property found to be reportable. As a result, holders subject to examination could be subject to cost assessments equal to the amount of any unreported unclaimed property discovered during an examination, plus interest and other penalties. C. Access to Records and Working Papers The amendments provide that records and working papers obtained or compiled by the State Treasurer or its agents in the course of conducting examinations are confidential and are not public records. The documents may, however, be used by the State Treasurer in enforcement proceedings; used in joint examinations conducted with other federal, state, or local agencies; produced pursuant to subpoenas or court orders; or disclosed to the abandoned property offices of other states for use in circumstances equivalent to those authorized for use by the Treasurer, provided the other state is bound by law to keep the documents confidential. D. Penalties for Non-Compliance As noted above, under current law any holder who without proper cause fails to report, pay, or deliver unclaimed property to the State Treasurer is liable to pay to the State Treasurer interest at the rate of 12 percent from the time a report concerning the property should have been filed. In addition to the authority to impose such punitive interest charges, the amendments require the Treasurer to also impose penalties on holders that fail, without proper cause, to report or to pay and deliver to the Treasury property deemed abandoned and unclaimed. The amendments impose a penalty not to exceed $1,000 per-day, beginning with the day reports should have been filed and continuing each day thereafter until proper reports are filed with the State Treasurer. The State Treasurer may, however, waive all or a portion of the penalty for good cause. The amendments also authorize criminal prosecution of persons who fail to file unclaimed property reports or transfer property when due to the State Treasury. The failure to file reports and transfer property when due is classified as a third-degree misdemeanor subject to a fine not to exceed $1,000 for the first offense and not to exceed $5,000 for a subsequent offense. Because the amendments do not establish a standard of culpability for criminal prosecution, under the Pennsylvania Crimes Code, criminal prosecution requires proof that a person acted intentionally, knowingly or recklessly. 11 In implementing its authority to impose penalties and interest charges, the State Treasury has indicated that, as a general practice, it will not impose penalties and interest unless a holder refuses a request of the State Treasury after reasonable notice to file reports or make payments. In addition, the State Treasury has indicated that it does not intend to impose penalties and interest in the absence of a willful or purposeful disregard for the requirements of the Unclaimed Property Law or a pattern of intentional noncompliance with the law. Furthermore, when penalties are imposed, the extent to which penalties are imposed will be based on the amount of unclaimed property in dispute, the history of compliance or non-compliance by the holder, and any conduct that constitutes an attempt to purposely delay or impede compliance with the Pa.C.S. 302(c) ( When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto. ). 9

10 mandates of the Unclaimed Property Law. To qualify for a waiver of penalties and interest, however, holders may need to comply with the requirements of the Treasury Department s Voluntary Compliance Program. The Treasury Department may modify the current Voluntary Compliance Program requirements, however, to take into consideration the significant changes made to prior law by Act 126. Expanded Criteria to Determine Whether Property is Abandoned and Unclaimed The amendments provide additional criteria to determine whether property is abandoned and unclaimed and must be transferred to the Treasury by (1) defining what constitutes an owner s indication of continued interest in property; (2) revising rules applicable to property held by financial institutions; (3) determining when gift cards expire; and (4) modifying rules relating to the abandonment of property held by fiduciaries. A. Indicating an Interest in Property Under prior Pennsylvania law, the presumption that property is abandoned and unclaimed could be over-come by demonstrating that the owner engaged in some type of transactions involving the property; corresponded in writing with the holder regarding the property (or received regular tax reports or statements from financial institutions by certified mail or some other method of communication that created a record that the statements were received); or otherwise indicated an interest in the property. Prior law, however, did not define what constitutes an indication of interest in property, but required that any indication of interest in checks, drafts, money orders and traveler s checks must be evidenced by a writing. Act 126 provides expanded criteria to overcome the presumption that property is abandoned and unclaimed by defining what constitutes an indication of interest in property and eliminating requirements that indications of interest must be in writing. The amendments provide that an owner may indicate an interest in property by any type of contact, communication, transaction, or other affirmative action initiated by the owner that is documented in a contemporaneous record prepared by or on behalf of the holder or in the possession of the holder. Indications of interest in property include: Written contacts, communications, or transactions; Secure or password-protected electronic contacts, communications, or transactions; Verbal contacts, communications, or transactions in which the holder takes reasonable action to verify the identity of the owner; or Any other type of contacts, communications, or transactions as evidenced by other criteria provided by the State Treasurer. To provide for broad interpretation of what constitutes an indication of interest, the terms owner and holder were also revised. The term owner was amended to apply to any person with a legal or equitable interest in property whose name appears on the records of a holder as a 10

11 person entitled to property held, issued or owing by the holder, including a depositor, creditor, claimant, or payee and their legal representatives. The term holder was amended to apply to any person obligated to hold, deliver or pay property to an owner, an agent, or legal representative of a holder. The amendments also clarify that an indication of interest in property is sufficient to avoid the escheat of certificates of stock and participation rights in business associations and cooperatives, dividends, profits, payments and distributions of business associations, principal and interest payments due on bonds and debentures, and the catch-all class of property not subject to another more specific period of presumed abandonment. Under prior law, it was unclear whether an indication of interest in such property was sufficient to prevent it from being treated as abandoned and unclaimed. B. Property Held By Financial Institutions Prior Pennsylvania law provided that demand, savings, or matured time deposits held by financial institutions, and shares or other interest in savings associations, were presumed abandoned unless the owner (1) took some action to increase or decrease the amount held by the financial institution or presented some evidence of its ownership interest; (2) corresponded in writing with the financial institution; (3) otherwise indicated an interest in the property; (4) received tax reports or regular statements regarding the property evidenced by certified mail receipts or other records ; or (4) owned other property held by the financial institution for which evidence sufficient to overcome the presumption of abandonment existed within the last five years. The amendments expanded the grounds on which demand, savings, or matured time deposits and shares and other interests in savings associations are not presumed abandoned to also include any action by the owner that affirmatively, in written or electronic communication, changed or assented to a change in the terms and conditions under which the deposit, shares or claim is held. Prior Pennsylvania law also provided that outstanding checks, drafts, money orders and traveler s checks, on which a financial institution is directly liable, were presumed abandoned unless the owner has written to the financial institution, or otherwise indicated an interest as evidenced by a writing on file with the financial institution. The amendments eliminated the requirement that an indication of interest in checks, drafts, money orders, and traveler s checks must be evidenced by a writing, and provided an indication of interest must be recognized if it is made with respect to the interests of the remitter, the payee or a person entitled to enforce the instrument. As a result, for example, an indication of interest made by a remitter in possession of an instrument, a person to whom the payee endorses an instrument, or by the holder of a bearer instrument, will be sufficient to avoid instruments from being determined to be abandoned and unclaimed. C. Gift Cards and Certificates Prior Pennsylvania law provided that gift cards and gift certificates with specified redemption periods were presumed abandoned two years after the expiration of their redemption periods. 11

12 Notwithstanding the actual expiration dates specified on gift certificates and gift cards, however, federal law provides that expiration dates sooner than five years after issuance of gift certificates and gift cards are unlawful. 12 In order to eliminate uncertainty regarding when gift certificates or gift cards with redemption periods shorter than the minimum five-year redemption periods imposed on gift cards by federal law are presumed abandoned, the amendments provide that gift certificates or gift cards are presumed abandoned two years after the later of their redemption period or after the minimum redemption period specified by federal law. D. Property Held by Fiduciaries Prior Pennsylvania law provided that property held in a fiduciary capacity is presumed abandoned after it becomes payable or distributable, unless the owner increased or decreased the principal, accepted payment of principal or income, corresponded in writing concerning the property or otherwise indicated an interest therein as evidenced by a writing on file with the fiduciary. The amendments eliminate the requirement that an indication of interest in property held by a fiduciary must be evidenced by a writing, and expanded the grounds to overcome the presumption of abandonment to also include an indication of interest in other property of the owner in the possession, custody or control of the holder. As a result, for example, if a financial institution that serves as fiduciary also holds savings, demand, or time deposits, or holds property of the owner removed from a safe deposit box, an indication of interest in the demand, savings or time deposits, or property removed from a safe deposit box, will be sufficient to overcome a presumption of abandonment of property held by the same financial institution in a fiduciary capacity. The amendments also clarify that for individual retirement accounts, retirement plans or similar accounts or plans created pursuant to Federal internal revenue law or to the law of this Commonwealth and not subject to a mandatory distribution requirement, the period of presumed abandonment is measured from the date upon which owners attained the age of 70 and one-half years. This change resolves uncertainty about when Roth IRAs are presumed abandoned and unclaimed. Registration and Regulation of Finders The amendments provide that no person may on behalf of another person recover abandoned or unclaimed property without first obtaining a certificate of registration from the State Treasurer. Registration is required to engage in an activity for the purpose of locating, delivering, recovering or assisting in the recovery of abandoned or unclaimed property in exchange for a fee, compensation, commission or other remuneration for the activity. The registration requirements do not apply to an attorney admitted to practice law before a federal or state court, U.S.C. 1693l-1(c). 12

13 or a person authorized by a power of attorney to recover abandoned property for a fixed fee or hourly rate not contingent on the recovery of property or the value of any property recovered. An applicant for registration must provide to the State Treasurer on forms required by the State Treasurer the following information: A recent full face color photograph ; The applicant's full name, telephone number, address, home address and work address; A statement that the applicant, for the 10-year period prior to the submission of the application, has not violated any requirements of the Pennsylvania Unclaimed Property Law; A statement that the applicant, for the 10-year period prior to the submission of the application, has not been convicted of a felony or an offense of theft or other related offenses against property, perjury, false swearing, fraud or other offense involving falsification in official matters, or forgery or other fraudulent practices, under Pennsylvania law or its equivalent if committed in another jurisdiction ; A statement that to the applicant's knowledge, the applicant is not the subject of an ongoing investigation or prosecution involving an alleged violation of the Pennsylvania Unclaimed Property Law or any offenses involving theft or other related offenses against property; perjury, false swearing, fraud, or other offenses involving falsification in official matters; or forgery or other fraudulent practices; A sworn statement that the applicant will conduct his actions as a finder of abandoned and unclaimed property in compliance with [the Pennsylvania Unclaimed Property Law] and the regulations promulgated [by the State Treasurer] ; Any other information that may be requested by the State Treasurer ; and A notarized signature immediately following an acknowledgment that a false or perjured statement subjects the applicant to criminal liability. Upon the filing of an application, the State Treasurer is authorized to investigate the applicant to verify the information provided in the application and to determine the applicant's eligibility for a certificate of registration. If a registration application is approved, each applicant is issued a registration number, which, together with the registrant s name, address and telephone number, must be included in any power of attorney authorizing the recovery of unclaimed property for another person. Once issued, certificates of registration must be renewed every two years. The amendments authorize the Treasurer to refuse to issue a registration, or revoke, suspend, or refuse to renew a certificate of registration, if: Any false information is included in an application for registration; 13

14 The applicant has violated any provisions of the Pennsylvania Unclaimed Property Law or regulations issued by the State Treasurer; During the 10-year period prior to the submission of an application the applicant has been convicted of any offense involving theft or other related offenses against property; perjury, false swearing, fraud, or other offenses involving falsification in official matters; or forgery or other fraudulent practices; or The State Treasurer determines that the person's conduct as a finder of abandoned or unclaimed property undermines the confidence of the public or warrants the belief that the person's business will not be conducted honestly and fairly. The amendments also authorize the State Treasurer to investigate complaints involving allegations of misconduct by registered finders of unclaimed property. In the conduct of an investigation, the Treasurer is authorized to issue subpoenas compelling the production of documents or the presentation of testimony subject to enforcement by the Pennsylvania Commonwealth Court. If the Treasurer determines a registrant engaged in any activity that constitutes a violation of the Pennsylvania Unclaimed Property Law, or has attempted or committed an offense involving theft or other related offenses against property; perjury, false swearing, fraud, or other offenses involving falsification in official matters; or forgery or other fraudulent practices, the State Treasurer is required to immediately revoke a certificate of registration. The amendments provide that any violations of the provisions of the Unclaimed Property Law relating to the registration or regulation of finders of unclaimed property constitute misdemeanor of the third degree, subject to fines not to exceed $1,000 for a first offense, or $5,000 for any subsequent offenses. The provisions of Act 126 relating to property finders will take effect on January 6,

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