2013 has been another interesting year in the world of unclaimed property and we expect 2014 will be no different.
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- Alan McDonald
- 7 years ago
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1 u n c l a i m e d pro p e rt y n e w s T r e T O W E R S A D V I S O R Y G R O U P, L L C U n c l a i m e d p r o p e r t y i n r e v i e w 2013 has been another interesting year in the world of unclaimed property and we expect 2014 will be no different. Congratulations to Michigan for using 2014 to address some of the more challenging issues in unclaimed property including audit procedures, use of estimation, and an administrative appeals process and to Missouri for pre-filing legislation to address the important business to business exemption. But the area that has received the most attention this year is the insurance industry many insurance companies reached multi-million dollar settlements Tre Towers Advisory Group, LLC - Leveraging knowledge and experience to assist businesses achieve compliance while adding value to the bottom line. with state administrators but as the year comes to a close, some insurance companies are questioning the states authority to conduct these audits in the manner they have done for several years. Several insurance companies have filed suit challenging California s audit authority which will provide insights for other industries as well. V o l u m e 2, I s s u e 3 d e c e m b e r In this issue: Michigan Unclaimed Property Audit Guidelines 1 Michigan Proposed Administrative Appeals Process 3 Missouri Proposed Law Changes 4 Insurance Industry Continued Industry of Focus 4 Other Developments 5 M i c h i g a n u n c l a i m e d p r o p e r t y a u d i t g u i d e l i n e s As anyone who has significant experience practicing in the unclaimed property area knows, unlike other areas of state and local compliance, there is limited guidance on unclaimed property audit procedures. Pretty much anything goes from an auditor s perspective unless holders take a proactive stance. Michigan took a first step this year to add some clarity to this very gray area. The legislation is not perfect but it is a step in the right direction.
2 M i c h i g a n u n c l a i m e d p r o p e r t y a u d i t g u i d e l i n e s, c o n t i n u e d Michigan Law On October 29, 2013, Michigan Governor signed House Bill No (HB 4289) which provides guidelines for unclaimed property audits. HB 4289 provides that: Unclaimed property audits must be performed pursuant to generally accepted auditing standards; Holders must be provided a complete copy in printed or electronic format of the audit report, which shall identify the detail work performed, the property types reviewed, any estimation techniques employed, calculations showing the amount of property due, a statement of findings, and all other correspondence and documentation which formed the basis for the findings; If the holder has filed all the required reports and has maintained substantially complete records, a review of the holder s records must be conducted, no estimation can be done and all evidence provided by the holder must be considered; and Other Questions Even with the passage of HB 4289, other unclaimed property audit procedures questions remain in Michigan and other states - questions such as what is a reasonable estimation method. Many, but not all, states unclaimed property laws provide that in conducting an unclaimed property audit reasonable estimation methodologies may be utilized if the holder s records are incomplete or unavailable for the audit period. However, the term reasonable estimation methodology is not defined and as a result, some auditors have seized the opportunity to develop estimation methodologies that are highly skewed in favor of large assessments. Hopefully states will take the necessary steps in 2014 to implement unclaimed property audit procedures guidelines that include addressing not only when estimation is authorized but also what is a reasonable estimation methodology. Substantially complete records means ninety percent of the records necessary for examination. Although questions remain, for example, what exactly is meant by a complete copy of the audit report including the detail work performed and what are the records necessary for examination, this is a good start in providing some clarity to both auditors and holders as to what the expectations are for unclaimed property audits. Hopefully these and other questions will be addressed in the rulemaking process which the unclaimed property administrator is required to request within six months of the effective date of the law. Other states should follow Michigan s lead and take steps to add clarity to their unclaimed property audit process thereby minimizing the potential for litigation.
3 M i c h i g a n u n c l a i m e d p r o p e r t y a d m i n i s t r a t i v e a p p e a l s p r o c e s s Michigan has been very busy in 2013 taking steps to address some of the more challenging issues in unclaimed property administration and enforcement. Earlier this year the state enacted legislation that addressed unclaimed property audits including the use of estimation. This year, Michigan also introduced legislation to implement an unclaimed property administrative appeals process. Most states do not have an administrative appeals process, so kudos to Michigan for taking the first step. Proposed Law House Bill No (HB 4703), which was introduced in May 2013 and is now sitting with the Senate Finance Committee, would create an administrative appeals process for unclaimed property audits. HB 4703 is modeled after Delaware s appeals process. HB 4703 provides that: The independent review is based on the audit record and any additional documentation submitted with the protest; The independent reviewer is required to hold an oral hearing within 90 days of appointment and both the holder and the administrator are required to submit briefs prior to the hearing. The independent reviewer s written report is due 90 days after the oral hearings; The treasurer may adopt, reject, or modify the independent reviewer s decision. If the independent reviewer s decision is rejected or modified, the treasurer must issue a written decision within 60 days of receipt of the independent reviewer s decision laying out the reasons for rejection or modification; and An audit determination issued by the administrator is final 60 days after mailing; Written protests must be filed within 60 days after the determination is mailed; If the holder files a protest, it must exhaust the appeals process before bringing an action in circuit court; Additional documentation may be submitted with the appeal but the documents must be filed within 60 days of submitting the protest; The administrator must issue a written determination related to the protest within 60 days (120 days if additional documentation is submitted) of receipt of the protest which may be extended for 183 days for cause; A written protest determination is final 30 days after issuance unless the holder files an appeal; No later than 90 days after receiving the appeal, the administrator must appoint an independent reviewer; Holder s have 30 days after the date of the treasurer s final determination to appeal to the circuit court. However, the circuit court s review is limited to whether the treasurer s decision is supported by the record. Currently, a holder s only recourse related to an adverse unclaimed property determination is to appeal within 90 days to the circuit court. Some concerns raised regarding HB 4703 is the independence of the independent reviewer and the limited review on appeal.
4 M i s s o u r i p r o p o s e d u n c l a i m e d p r o p e r t y c h a n g e s On December 2, 2013, HB 1075 was pre-filed in Missouri. HB 1075 would impact Missouri unclaimed property compliance including business to business transactions, dormancy periods and the statute of limitation. Specifically, HB 1075 would amend Missouri unclaimed property law by providing that any outstanding check, credit balance, overpayment or unidentified remittance issued to a business as part of a commercial transaction shall not be presumed abandoned if the holder and business have an ongoing business relationship. Additionally, business credits are specifically exempt from reporting. Furthermore, the dormancy period for payroll would be reduced from five to three years beginning January 1, Finally, the treasurer would not be able to take any enforcement action more than three years after the holder files a report. If a fraudulent report is filed the statute of limitations is six years and if no report is filed the statute of limitations is tolled. T h e i n s u r a n c e i n d u s t r y r e m a i n e d t h e i n d u s t r y o f f o c u s f o r For the past five years, the insurance industry has been the focus for state unclaimed property administrators. The heightened level of attention continued in 2013for large insurance companies but also expanded to include small to mid-size insurance companies as well. And with the National Association of Insurance Commissioners recently agreeing to assess whether unclaimed benefits guidelines should be developed, it appears the focus will continue in Settlements In 2013 a number of insurance companies settled with several states agreeing to use the Social Security Administration Death Master File (DMF) for comparisons against their in-force policies, including Midland National Life Insurance Company and North American Company for Life and Health Insurance paid $3.3 million to seven states; Aviva Life & Annuity Company and Aviva Life & Annuity Company of New York which paid $4 million to settle with seven states; Transamerica paid $11 million and New York Life paid $15 million. Lawsuits However, not all insurance companies believe settlement is in their best interest. Thrivent Financial for Lutherans (Thrivent), American National Insurance Company (ANICO) and Kemper Insurance Co. of Chicago (Kemper) challenged California s authority to request certain information in conducting its unclaimed property audits. ANICO filed suit on July 26, 2013 but on October 9, 2013, the Sacramento Superior court ordered the company to turn over its records. Thrivent filed suit on October 30, 2013, alleging that California and its contract auditor Kelmar Associates LLC are requesting information to conduct the audit far beyond that which would reasonably lead to the identification of unclaimed property reportable to California. Additionally, Thrivent argues that the state s request exceeds the Controller s authority under California law. California filed a countersuit on November 5, California also filed suit against
5 T h e i n s u r a n c e i n d u s t r y r e m a i n e d t h e i n d u s t r y o f f o c u s i n , c o n t i n u e d Kemper on July 16, West Virginia filed suit against 68 insurers and a Kentucky court upheld the new Kentucky unclaimed benefits law. All industries should pay close attention to these cases because the rulings could have broad implications. NCOIL Unclaimed Life Insurance Benefits Model Act The NCOIL Unclaimed Life Insurance Benefits Model Act (Model Act), provides that insurers must, on at least a quarterly basis, compare their in-force life insurance and retained asset accounts against the DMF to identify potential matches. For matches identified, the insurer must, within 90 days, confirm the death of the insured, determine whether benefits are due, attempt to locate the beneficiary and if the owners cannot be found, escheat the property to the applicable state. States Adopting NCOIL Model Act To date, nine states have enacted the NCOIL Model Act, some with changes. These states are Alabama, Kentucky, Maryland, Montana (2013), North Dakota (2013), Nevada (2013), New Mexico (2013), New York, and Vermont (2013). The Model Act is pending in Massachusetts and Rhode Island but failed to pass in Tennessee. O t h e r d e v e l o p m e n t s California The aggregate reporting was reduced to $25. Delaware The saga in the Select Medical Corporation v. Cook litigation continues. Recall that Select Medical filed suit arguing that Delaware issued an assessment based on estimation even though Select Medical had detailed records for the audit years. Delaware has withdrawn the estimated assessment and has filed a motion to dismiss the suit now that the estimated assessment has been revoked. A hearing has been scheduled for December 19, 2013 to address Delaware s motion to dismiss. benefits law. To be eligible for the deferral, insurers must: (1) demonstrate that policyholders would be harmed in absence of the waiver; (2) submit a transition plan at least six months prior to the waiver date requested; and (3) include in the transition plan a timeline to convert electronic records and implement electronic searches within a reasonable time. South Dakota South Dakota received $70 million in an unexpected unclaimed property windfall. This windfall is due to a reduction in the dormancy period for certain property to from five to three years. North Dakota The North Dakota Insurance Department has proposed rules to allow requesting companies the ability to delay the implementation of the recently enacted unclaimed
6 T R E T O W E R S A D V I S O R Y g r o u p, L L C Tel: Mobile: info@tretowersadvisory.co 5667 Stone Road Suite 595 Centreville, Virginia We are on the web tretowersadvisory.com Unclaimed Property Consulting at a Higher Level Experienced. Quality. Accessible. Client-Tailored Advisory Services that Adds Value to Your Organization s Bottom Line Risk Assessment/Process Rev i ews A s s e s s b u s i n e s s operations, accounting and compliance processes to identify areas of risk and develop strategies to address the risk areas identified from a best practice perspective while minimizing risks and costs. Liability Quantification and Management Develop exposure schedules by entity, state, property types and years open under audit. Develop strategies to mitigate exposure based on your company s unique facts including business operations, accounting/compliance procedures and impacted states. Develop schedules with mitigated exposures that can be used as the basis for negotiating voluntary disclosure agreements with the states. Voluntary Disclosure Negotiations Inform your organization about the terms, timeline and benefits and risks associated with negotiating voluntary disclosure agreements ( VDA ) with the states. Provide critical information about the states VDA process that your organization can use to make crucial participation decisions. Negotiate VDAs with the applicable states and obtain closing agreements. A u d i t D e f e n s e / Advocacy Educate management about the audit process including outlining the stages of the audit, the information requested, the process required to complete the audit and the resources generally required to proactively defend the audit. Assist in developing a proactive audit defense and management strategy. Leverage relationships with state administrators to address issues encountered in the audit as appropriate. Support legal counsel in appealing audit assessments. Regulatory Compliance and Consultation Assist organizations in understanding their compliance obligations in the various states including annual filing requirements, records required to be maintained and for how long, applicable exemptions and best practices to comply and minimize risks. Draft written unclaimed property policies and procedures tailored to each organization s accounting policies and procedures.
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