Straw Man Draft. One administrative level- ULC Commissioner chooses either NAUPA version or state APA

Transcription

1 UPPO NAUPA Straw Man Draft Right to one conference with administrator and more at discretion of administrator Silent on right to conference with administrator Section 20 "Requests for Reports, Examination of Records; Limitations on Use of Information and Documents Obtained by the Administrator" - Paragraph (i) If holder examined "believes the examiner is making unreasonable or unauthorized demands or is not proceeding expeditiously to complete the examination" it can request that the Administrator intervene. Further, the holder is entitled to a conference with the administrator to present his or her case. Holder elects APA or Court, OR UPPO's Elective Admin. Appeal (potentially 3 levels, all elective) No exhaustion required to get to court Joint hearing officer selection process One administrative level- ULC Commissioner chooses either NAUPA version or state APA Informal Conference - Section 22 "Determination of Liability for Unreported Reportable Property; Administrative or Judicial Enforcement" - W/I 30 days of mailing by UP Admin of a notice of determination of liability, holder may request an informal conference with UP Admin. Request stays other timelines Exhaustion of admin. appeal is required before judicial review Informal conference is not a remedy that must be exhausted in order to file suit in a competent court. Administrator appoints hearing officer or acts as hearing officer Administrator or "designated conferee" schedules conference and issues decision with 20 days of informal conference conclusion. Hearing officer must be qualified as former member of judiciary or licensed attorney; must not be employed by or contractor of any of the parties De novo review Fees to prevailing party (even for administrative process), but to gov't ony where fraud or willful misconduct No express qualifications Review based on administrative record, except alleged irregularities may be presented Fees to prevailing party at discretion of "court" (only appears with respect to judicial appeal) No express qualifications De novo review (90 days from determination or from decision from informal conference) Fees to the prevailing party (alternatively at the courts discretion or mandatory) in a court action. Holder pays undisputed amount once files appeal Holder must pay full assessment and state will return with "interest earned" (pay to play) Holder may or may not pay the Administrator's determination of liability prior to or during the pendency of a lawsuit but State can have a lien placed against the holder for 150% of the value of the liability determination until the amount is paid or a final court judgment invalidates that lien. Timing: 60 days to establish claim 60 days to select hearing officer 30 days for hearing (after H.O. selection) on agreed date 60 days for decision 30 days to establish claim 30 days from mailing of determination to request informal conference. Filing tolls 90 day period to appeal to court. Hearing officer selected by administrator (or no hearing officer) Administrator or administrator's "designated conferee" 60 days for hearing from filing (date chosen by admin/hearing officer alone) 20 days from request Administrator must notify holder of conference date and time. Written decision as soon as practicable 20 days from close of informal conference Administrator must notify the holder of decision. (Doesn't indicate that the decision has to be in Administrator can enforce once appeal period expired for holder Administrator can enforce. Administrator can enforce unless holder files a lawsuit. 2/25/15 11:20 a.m. CST C:\Users\salima\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\CCTPI062\Admin Appeals - UPPO-NAUPA-STRAW MAN Comparison-2.xlsx US_ACTIVE v1

2 Holder s Coalition Draft ULC NAUPA Conference Between Holder and Administrator during exam at Holder s option Conference Between Holder and Administrator during exam at Holder s option No Conference Required Admin Appeal OR $ Assessment Holder Pays Uncontested State APA OR Court Optional Informal Conference (Holder may pay) Assessment $ $ $ $ Holder Pays All Admin Appeal or State APA (ULC decides) Joint Hearing Officer Selection DE NOVO Appeal to Court Administrator chooses Hearing Officer or Himself Final Determination Final Determination DE NOVO Appeal to Court Appeal on Record of Administrator s Hearing

3 1995 ACT Contact Activities ULC February 2015 Strawman UPPO Contact Activities NAUPA Contact Activities ABA Contact Activities ICI/STA Contact Activities UUPO Recommendation: Revise 1995 Act to include activities that will prevent triggering the presumption of abandonment NAUPA Recommendation: Revise1995 Act to expand standards of contact, as long as actions are traceable and verifiable ABA Recommendation: Revise 1995 Act to take into account electronic and other forms of communication not originally contemplated Communicate in writing or by other means or otherwise indicate interest Any written or oral communication All communications, irrespective of mode Any contact, communication or transaction or involving some affirmative action Account access with verification, including internet access Non return of mail, including federal forms Account access or inquiry with owner identity verification Non return of mail specifically excluded as contact; require owner initiated or direct owner response Any oral or written communication, including any electronic communication ICI - Any written, electronic, telephonic, personal, or other contact; STA - Any action, either verbally, in writing or electronically Account inquiry by owner or representative Non return of required Federal tax form Presentment of a check or other instrument for payment of a distribution and if made by electronic or similar means, evidence distribution was received Presentment of a check or other instrument for payment of a distribution and if made by electronic or similar means, evidence distribution was received Cashing a check Same as 1995 Act Same as 1995 Act ICI - Deposit a check relating to the property (e.g., dividends check); STA - Presentment of a check or other instrument of payment ACH and Fed wire transactions not returned ACH and Fed wire transactions not returned ICI - Completed ACH transaction or similar electronic funds processing method; STA - Acceptance of an electronic payment into an account designated by the owner, provided no notice payment was returned as Owner directed activity in an account, including increase, decrease or change amount or type of property held Owner directed activity in an account, including accessing the account, increase, decrease or otherwise change amount or type of property held Account changes including purchases, redemptions, transfers, exchanges, consolidation and maintenance Opening a new account Same as the 1995 Act. Require traceable and verifiable actions - authorization cookies and automated withdrawal or payment not sufficient Same as 1995 Act ICI - Change to the information regarding the account in which the property is held, purchase or sale of any shares or other property (including purchases or sales effected through automated means); STA - Any action by the owner Making a deposit or withdrawal Making a deposit or withdrawal, including automatic deposits or withdrawals previously authorized by owner but covered under account changes Same as 1995 Act, but clarify that automated deposits and withdrawals are not sufficient Same as 1995 Act but previously authorized automatic deposits and withdrawals are sufficient Payment of a premium but not automatic application of a premium loan or other nonforfeiture provision Payment of a premium but not automatic application of a premium loan or other nonforfeiture provision Any other action by owner, agent or representative that demonstrates awareness Not addressed Same as 1995 Act Same as 1995 Act Linked account activity. SIFMA agrees with cross reference Proxy vote, whether by mail, IVR, internet or some other method Do not agree with linked account activity. Counter-intuitive as owner's awareness of one account does not mean knowledge of another account but is "direct owner response" Contact, communication or transaction evidenced by other criteria as provided by the Administrator Any other action demonstrating awareness that the property exist

4 1995 ACT Presumption of Abandonment ULC February 2015 Strawman UPPO Presumption of Abandonment NAUPA Presumption of Abandonment ABA Presumption of Abandonment ICI/STA Presumption of Abandonment UUPO Recommendation: Revise 1995 Act to include activities that will prevent triggering the presumption of abandonment NAUPA Recommendation: Revise 1995 Act to expand standards of contact, as long as actions are traceable and verifiable; provide for acceleration of dormancy period if inactivity fees assessed ABA Recommendation: Revise 1995 Act to simplify categories and adjust dormancy periods for all types of property based on actual experience SECURITIES Most recent unclaimed distribution or 2 RPOs ERISA Date of distribution or attempted distribution as stated in the plan or date required by IRC to avoid a tax penalty TRADITIONAL IRA Date of distribution or attempted distribution as stated in the plan or date required by IRC to avoid a tax penalty SEC 17-Ad-17 searches after security holder is coded as lost if communications sent by US mail provided 3 years pass with no contact; otherwise, 3 years from last contact. If securities are held in a dividend reinvestment plan, 2 RPOs 2 RPOs SEC 17-Ad-17 searches, if communications sent by USPS without indication of interest (see Contact matrix); No mailing via USPS - indication of interest. No exemption. Same as 1995 Act plus age 70.5 No exemption. 3/10 years from 2 RPOs, last contact or age RPOs or last contact ICI - SEC 17Ad-17; STA - 2 RPOs; ceased employment, no longer entitled to participate, unknown location Age 70.5 plus 2 RPOs Same as 1995 Act plus age 70.5 RPO, last contact or age 70.5 RPO, last contact or age 70.5 ROTH IRA No exemption. 3/10 years from 2 Age 70.5 plus 2 RPOs Same as 1995 Act plus age 70.5 RPO, last contact or age 85 RPO, last contact or age 70.5 RPOs, last contact or age 70.5 NON ERISA - Age 70.5 plus 2 RPOs Date of distribution or attempted RPO, last contact or age 85 RPO, last contact or age (b), 403(b), SEP and Simple IRA distribution as stated in the plan, date required by IRC to avoid a tax penalty or age 70.5 COVERDELL ESA Mandatory distribution age plus 2 RPOs Age 33 plus 3 years from date of last indication of interest Distribution date or 30 years from account opening or transfer date 529 COLLEGE SAVINGS PLAN HEALTH SAVINGS ACCOUNTS 3 years from 2 RPOs, last contact or (age 26/30; 30 years after account opened or age 82) Retirement - same as IRA; Nonretirement - 3 years from 2 RPOs, last contact or age 82 ; alternatively, age 30 plus 2 RPOs. Age 70.5 plus 2 RPOs Age 26 plus 5 years from date of last indication of interest Date of distribution or attempted distribution as stated in the plan, date required by IRC to avoid a tax penalty or age 70.5 UGMA/UTMA Age of majority plus 2 RPOs Date of distribution or attempted distribution as stated in the plan, date required by IRC to avoid a tax penalty or age 70.5 BUSINESS-TO- ion if "substantial ongoing. COST also proposed exemption No exemption BUSINESS business relationship" STORED VALUE CARDS 5 years of issuance, recent activity including verification or review of balance. COST also proposed exemption Date of sale or owner's last use UNINVOICED INVENTORY PROMOTIONAL PROGRAMS UNUSED SUBSCRIPTIONS MINERAL Payable or distributable PROCEEDS RPO, last contact or age 85 RPO, last contact or age 85 ion if not redeemable in cash Distribution date or 30 years from account opening or transfer date Age 30 or 30 years after the account is established

5 Due Diligence Comparison Chart UPPO Proposal (1) THRESHOLD - $50.00 or greater minimum amount should be employed as a threshold requirement. (2) CERTIFIED MAILINGS - Certified mailings should not be required at all. (2a) CERTIFIED MAILINGS - If certified mailings are required by a state(s), holder should be allowed the option to deduct the cost from the account holder regardless or whether or not the holder has a contract with the owner permitting it to do so. (3) UNIFORM COMPLIANCE AFFIDAVIT - A uniform document should be implemented which would be part of the Holder Verification Form. (4) DUE DILIGENCE RESPONSE DATE - While feedback was not provided regarding specific response date options, UPPO recommends that holders uniformly note that responses to due diligence letters must be received within 45 days of the date of the letter. (5) UNIFORM CONTENT REQUIREMENT - UPPO supports a uniform set of requirements for due diligence notices including warning language regarding escheat in absence of response, and steps for recovery of property. NAUPA Proposal Agreed Agreed

6 UPPO NAUPA Notify administrator that property is early; Holder must attempt to notify owner and property deemed abandoned upon remittance Written consent of administrator required No early reporting for fluctuating property unless certain commitments from state (exact types of property to be discussed) Silent on types of property excluded from early reporting