Friday, March 8, 2019

Friday Lost + Found

A Roundup of Odds & Ends From the Week in Unclaimed Property


GAO Issues Report on Unclaimed 401(k) Funds -- The Government Accountability Office, which is responsible for providing recommendations to Congress on the responsibilities of the federal government, recently issued a report concerning the application state unclaimed property laws to retirement assets such as 401(k)s. In preparing the report, GAO sent questionnaires to the unclaimed property offices of all 50 states, interviewed industry representatives, and surveyed fund and brokerage firms on their handling of these items. Among the GAO's recommendations are that the IRS clarify the tax treatment of plans that are escheated to the state and consider allowing taxpayers whose later claim assets that were unknowingly escheated to rollover the assets into a qualified plan.

Claim Headaches -- One of the benefits of modern escheat laws is that they are generally "custodial" in nature -- meaning that the state takes possession of unclaimed property on the owner's behalf, but the property does not actually become the state's property. That said, the claim process can be a trap for the unwary. As recounted by the Mercury News, individuals seeking to claim property from the state face (at least) paperwork and (at worst) scammers that try to take some or all of the money owed to the claimant. The article recounts these problems and has a number of tips for claimants. It is worth a review for those considering filing a claim.

2016 Uniform Act News -- States continue to work on legislation relating to the 2016 Revised Uniform Unclaimed Property Act.The Washington state legislature is currently considering such a bill, as are lawmakers in Nevada. and South Carolina.

Monday, March 4, 2019

Britons Blindsided by U.S. Escheat Laws

Jessica Gorst-Williams, the "Agony Aunt" of U.K. newspaper The Telegraph recently ran an help column relating to a U.K. resident's complaint that her shares were escheated to the State of Delaware without her knowledge. Accordingly to the unlucky shareholder, her shares were turned over to the state "because I had not made any contact with the company since receiving the shares, the necessity of which I had no prior knowledge." 

Ultimately, the shareholder had to submit her driver's license, passport, bus pass (seriously), as well as a copy of the actual stock certificate. After jumping through these hoops, did our heroine across the pond get her stock back? Not exactly. Instead, she got a check for $1, as the state had already liquidated the stock without her consent at the then-market value.

This story is far from unique. Every year, certain states require broker/dealer firms to turn over stock positions, which are in many cases summarily liquidated, based upon nothing more than the fact that the account owner did not engage in activity during the previous 3-5 years.

By way of background, all states require the reporting and delivery of dormant securities positions. However, the manner in which this "dormancy" is measured differs among the states. There are generally two styles. In "Returned Mail" (sometimes called "RPO" (Returned by Post Office)) states, the three to five year time period after which the broker must turn over "abandoned" securities to the state does not begin to run until one or more mailed account statements are returned to the broker as undeliverable by the postal service. In "activity" states, on the other hand, the dormancy period begins to run immediately after the last owner-generated activity in the account. In other words, when you open up a brokerage account subject to the unclaimed property jurisdiction of an "activity" state, the dormancy period begins to run immediately. If you don't trade in that account or engage in some other activity, your securities will be deemed abandoned at the end of three to five years.

While the passage of time alone might make sense to require the escheat of certain items (i.e., payroll checks - which generally aren't held for a long time), it doesn't make sense when it comes to securities accounts, many of which are being held for the long term. While investment advice is not something this blog is qualified to provide, it is nonetheless true that "Buy and Hold" (or passive investing) has been a popular investment strategy for decades. Thus, escheating securities to the state (where they may be quickly liquidated) simply because of a lack of activity seems inconsistent with how many owners utilize their investment accounts.

Adding financial insult to injury, the overwhelming majority of states do not hold those securities escheated to them in the name of the rightful owner. Instead, most states' laws, including those that have adopted the recent 2016 Uniform Unclaimed Property Act, provide that the state may sell securities after three years, and that generally the rightful owner is entitled only to the proceeds of the sale. In other words, the owner loses any increase in value of those securities after they are sold by the state.

Unfortunately, it does not look like these practices are waning. For example, a bill currently making its way through the Arkansas legislature would permit the Administrator of unclaimed property in that state to sell escheated securities immediately upon receipt, instead of holding them for three years. Thus, the states' every increasing appetite for unclaimed property has shifted the burdens of maintaining ownership squarely onto the shoulders of the owner. Now, more than ever, it is important for owners to keep tabs on their securities accounts, even if they are holding for the long term.

Friday, February 22, 2019

Friday Lost + Found

Ohio Oops -- The Ohio Division of Unclaimed Funds recently issued 1099 tax forms to those individuals who claimed abandoned property from the state during the prior year. Unfortunately, it appears that many of the forms were not sent to the correct individuals. Those who may be affected are encouraged to contact the Division of Unclaimed Funds for more information and a free year of identity theft protection.

Municipal Unclaimed Funds -- While we focus most of our attention on unclaimed property held by state governments, municipalities and counties may also hold unclaimed property. A municipal or county government may be holding payment refunds, jury service checks, or deposit refunds for rightful owners who have not claimed those amounts. For example, CBS 58 in Milwaukee reports that Milwaukee County is holding more than $2.2 million in unclaimed funds for its residents and business partners.

2016 Uniform Act News -- The Revised Uniform Unclaimed Property Act was released in 2016 and has been adopted in several states. Other states continue to consider getting on the bandwagon. Last week Colorado Senate Bill 88 (which would implement a version of the Uniform Act) was referred to the full state senate for consideration. At the same time, however, the Illinois legislature is considering bills to amend or repeal its early adoption of the UUPA.

Wednesday, November 21, 2018

IRS Extends Compliance Deadline for Withholding & Reporting Requirements on IRA Accounts Remitted to States as Unclaimed Property

Earlier this year, in Revenue Ruling 2018-17 the IRS issued guidance stating that holders of traditional IRAs required to report IRA assets to a state as unclaimed property were required to withhold federal income tax upon such amounts and issue a 1099-R form indicating the owner as the recipient of the funds.  The IRS originally set the compliance date for this guidance as January 1, 2019.

This ruling was not without controversy.  For example, it seems incongruous to impose taxes upon the owner of an IRA on account of that owner taking a “distribution” from the IRA when, in fact, the reason that the proceeds are being transferred as unclaimed property is because there has been no contact with, or activity by, the IRA owner for several years.  In addition, the Revenue Ruling raised practical problems for the securities broker-dealer and/or trustees.  For example, when a securities account such as an IRA is escheated to the state, the state generally takes custody of those securities.  In order to withhold taxes from an IRA containing only securities before escheat, however, would the holder be required to liquidate those securities?  If so, is that consistent with the federal securities laws and/or the holders other duties to the owner?  In light of these questions, the “Holders Coalition” (a group of unclaimed property trade associations and similar entities) issued a comment letter seeking additional guidance.

While the IRS has not directly responded to the questions raised regarding the Revenue Ruling, it did issue a notice this week extending the compliance date until January 1, 2020.  This will hopefully give states and the holder community time to work with the IRS to clarify holders’ obligations with regard to the reporting and remittance of IRA accounts.

Wednesday, November 14, 2018

Ohio Legislative Update (With Some Interesting Stats)

Recently, Ohio passed House Bill 353, which broadens the scope of the current exemptions for gift cards and gift certificates under the unclaimed property act.  Effective January 22, 2019 the bill will exempt certain "open-loop" prepaid cards, "closed-loop" prepaid cards, and rewards cards.  The revised legislation also exempts any "obligation" due to a retail customer (as opposed to just "credits").

As is often the case, a non-partisan legislative committee prepared a "Fiscal Note" regarding the potential economic impact of the new law.  That report, in turn, sets forth the amount of money reported to, and repaid by, the State of Ohio during the most recent five-year period.  For example, according to the Note, holders reported and remitted nearly $300 million to the state during Fiscal Year 2018.  During that same period, the state returned $97 million to owners.  Over the five year period 2014-2018, the state collected $1.4 billion (with a "b") from holders while returning approximately $425 million to owners.