Unclaimed Property Compliance What You Need to Know
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UNCLAIMED PROPERTY COMPLIANCE WHAT YOU NEED TO KNOW July 20, 2021 BDO USA, LLP, a Delaware limited liability partnership, is the U.S. member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. With You Today ANGIE GEBERT KHRYSTYNA BURKUN JAMES MANN ANDRES MACELLARO National Unclaimed Property Unclaimed Property State & Local Tax Services, Unclaimed Property Compliance Leader & State & Local Tax Services Unclaimed Property State & Local Tax Services Managing Director Experienced Associate Manager Escheat Manager 312-233-1848 312-233-1817 312-730-1274 212-885-8000 [email protected] [email protected] [email protected] [email protected] 2 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Compliance Essentials Compliance Best Practices Unclaimed Property Trends State Outreach Agenda State Compliance Updates New Delaware Senate Bill Litigation Update Conclusion/Q&A 3 UNCLAIMED PROPERTY COMPLIANCE WEBINAR COMPLIANCE ESSENTIALS 4 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Unclaimed Property Essentials COMMON TYPES OF UNCLAIMED PROPERTY: Uncashed payroll or commission checks Uncashed payable / vendor checks Gift certificates / gift cards Customer merchandise credits, layaways, deposits, refunds or SOURCING RULES: rebates First, to the state of the Overpayments / unidentified remittances rightful owner’s last known Suspense accounts address, if known, or Unused/outstanding benefits (non-ERISA) Second, to the state of the Miscellaneous income/bad debt expense accounts holder’s incorporation (commercial domicile for unincorporated entities). 5 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Unclaimed Property Essentials REPORTING DEADLINE Varies by Industry Most fall into two filing seasons – Spring/Summer and Fall DORMANCY PERIOD Varies by property type and state Need to understand when the dormancy period starts (i.e. – date of creation vs. last activity date) DUE DILIGENCE Each state has a specific dollar threshold Must meet certain state guidelines with timing of mailing and language EXEMPTIONS Deferral vs. Exemption Deminimus or Administrative Deduction 6 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Sample Escheat Compliance Timeline Company Due diligence response to letters sent and Prepare UP reports Reports to data request responses tracked Reissue checks & check request states See the Sept 1 – following May 15 June 30 Sept 15 Oct 15 FALL sample COMPLIANCE June 1 July 1 – August Sept 16 – Oct 20 timeline for August 15 30 Oct 7 Fall and Data Validate Prepare Reports and Spring filings. Request data and ID reconciliation checks This timeline exemptions processed can be Compile modified Review Spring DDL Prepare UP reports & Reports and Reports to Data Set Responses check request checks processed states accordingly to Dec 1 – Feb 1 – meet a Dec 31 Feb 15 Feb 28 SPRING Company’s COMPLIANCE Nov 1- Jan 1 – Feb 20 March 1 needs. Nov 30 Jan 31 – July 1 Due Prepare Reissue Diligence reconciliation checks 7 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Other Compliance Trends – Online Filing NOTES: ALASKA: New Online Filing Portal coming July 2021 NEVADA: Payment must be made electronically-ACH Debit or fee assessed NORTH DAKOTA: Negative Reports only required OKLAHOMA: Signed cover sheet still required OREGON: New Government Agency Handling Unclaimed Property TENNESSEE; Payment must be made electronically VIRGINIA: Signed cover sheet still required WASHINGTON: Introduced New Online Portal for Fall 2021 Payment must be made electronically or 5% penalty 8 UNCLAIMED PROPERTY COMPLIANCE WEBINAR COMPLIANCE BEST PRACTICES 9 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Compliance Best Practices UP Liability Written Policy Monthly Early Deminimus Account & Procedures Recon Process Reach Out Amounts Role Acquisitions & Centralized Record Annual Assignments Divestitures Repository Retention Compliance Policy Process 10 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Top Common Compliance Mistakes Using the wrong time period for reporting – Includes too many items in a report or does not capture all the required reportable items for a given report cycle Using the wrong property type code – Using the incorrect property type code could lead to incorrect reporting of property due to different dormancy periods being used for different property type codes • It could also lead to the misapplication of the available exemptions Not realizing that foreign addressed items needs to be included in reporting and should be escheated to the state of incorporation Holders not taking advantage of exemptions or deductions Holders not realizing that not all states utilize a fall report deadline and that about 1/5 of the states use a different report deadline than Oct 31/Nov 1. 11 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Common Reasons States Reject Annual Reports Certain states require specific information to be included on their annual reports or be submitted in a certain format or they will reject the reports. The following are some examples: California and Florida both require Social Security Numbers be provided for payroll property included on their annual reports Tennessee requires that the NAICS code be included in their upload file for it to be accepted Tennessee, Washington, District of Columbia and Delaware are a few examples of states that will only accept reports that are uploaded to their respective state portals Certain states such as Texas, Arkansas and Oklahoma require well name, well number and well location be included for mineral royalties Several States will Reject a Report if Payment is not made electronically such as Alabama, Nevada, and Tennessee. California will reject their reports for sending payment with the Notice Report or adding new property to the Remit Report. 12 UNCLAIMED PROPERTY COMPLIANCE WEBINAR UNCLAIMED PROPERTY TRENDS 13 UNCLAIMED PROPERTY COMPLIANCE WEBINAR UNCLAIMED PROPERTY TRENDS State Outreach 14 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Compliance Review Trend STATES DOING REVIEWS: COMMON REQUESTS MADE DURING THESE REVIEWS: Written policy and procedures Expectations of certain property types Delaware California Florida Deminimus policy Filing history for all entities, including acquisitions/divestitures Handling of outstanding checks on closed bank accounts Virginia Washington DC 15 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Direct Outreach Trends Delaware SB No. 104 and the recent litigation in the unclaimed property space point toward continued enforcement efforts by Delaware through its audit and VDA programs. More states are now adopting a similar approach to Delaware and BDO has seen an uptick in audits and direct outreach from states, including MA, TX, MI, FL, IL, MN, UT, and NY. States are utilizing new available software and techniques to review their records and determine companies that may not be complying. For the annual online filings, over half of the states utilize a portal developed and maintained by Kelmar. Companies receiving self-audit notices, voluntary/amnesty program invitations, and questionnaires must ensure to address these items in a timely matter in order to avoid an audit, which can be quite burdensome and costly. 16 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Self Audit Outreach Example - MA The Commonwealth of Massachusetts began a new unclaimed property program around April 1, 2021, to identify noncompliant companies that are incorporated, have locations or carry business permits in the state. Companies that have failed to file unclaimed property reports regularly or have filed incomplete reports with the state may be contacted by a third-party company notifying them that they must conduct a self-audit. Companies that receive a notice of noncompliance will be expected to conduct a self-review for all property owed to the state for the last six report years (nine transaction years), due Nov 1, 2021. A third-party audit firm is assisting the state with the self- audit program. 17 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Self Audit Outreach Example - NY The New York State Comptroller’s Office of Unclaimed Funds (OUF) contacts companies through a series of notices to participate in the state’s Voluntary Compliance Program (VCP). The letters inform holders, based on a record of non- compliance and business activity, that the state offers a VCP program that may allow them to self-report unclaimed property with a waiver against interest and penalties. Failure to respond to this letter could result in: • Further inquiry or audit, or • Lack of future admittance into the program. If your organization has received an unclaimed property notice or letter, it is important to act quickly. 18 UNCLAIMED PROPERTY COMPLIANCE WEBINAR Self Audit Outreach Example - IL At the beginning of July, the Office of the Illinois State Treasurer begun sending “Unclaimed Property Compliance and Reporting Outreach” letters to companies in the state that may be noncompliant with their unclaimed property reporting. The recipient’s company, its subsidiaries and related entities have an obligation to report and remit property to achieve full compliance with the Illinois Revised Uniform Unclaimed Property Act. Any company that receives a notice from the state or its third-party audit firm will be expected to conduct a self-review. The self-review should cover the last 10 report years including past due unclaimed property as of December 31, 2020. Main issues: • Per the letter, it only gives 4 months to complete the review and file a report. Waiting to hear if extensions