Proposed Delaware Legislation on the Fast Track

The unclaimed property community is abuzz regarding new legislation in Delaware that is being touted as a fix for the numerous deficiencies and questionable practices that a federal court vigorously criticized last summer.  The new legislation -- Senate Bill 13 -- is intended to fix the problems identified by U.S. District Court Judge Gregory M. Sleet in Temple Inland v. Cook, as well as to adopt some of the new proposals set forth in the Revised 2016 Uniform Unclaimed Property Act.

Among some of the highlights of the proposed legislation include:

• a uniform due diligence requirement;
• more clarity on what information constitutes a last-known address;
• notice to the owner by the State Escheator for certain types of property;
• clearer standards for determining when a debt has been discharged;
• a 10 year record retention provision;

While these are all welcomed potential developments, what really has the unclaimed property community intrigued are the provisions relating to audits.  In particular, a 10 year period of limitation on the state's audit rights (except for cases of fraudulent or willful misrepresentation), and a provision limiting the state's use of estimation to those periods where statutorily required records are not kept.  Even more notable is a potential provision impacting audits that are already underway.

For any audit commenced on or before July 22, 2015 (except for certain securities examinations where estimations are not being used) the holder under audit may exercise the option of converting the audit into a review under the Secretary of State's Voluntary Disclosure Agreement (VDA) program, and limit the period under audit to 10 report years from the date of the original audit notice. 

The legislation, introduced on January 12, has already passed the Senate and been approved by the House Administration Committee and is currently on the "Ready List" (meaning that it is ready for debate by the full House).