States can play a dual role in the area of unclaimed property—as custodian, until the property’s rightful owner can be located, and as beneficiary, on behalf of the common good. The problem with this system is that unclaimed property has become such a significant source of state revenue that the incentive structure for the states has shifted. Indeed, as the dependence on funds generated by unclaimed property has increased, the states’ role as beneficiary has begun to overshadow the states’ role as custodian for lost property. Delaware, for example, relied on unclaimed property as its third-largest revenue source during the 2019 fiscal year. During 2019, Delaware collected $554.0 million in unclaimed property and returned $114.3 million, for net collections of $439.7 million.
States begin to squeeze the golden goose
Due to waning internal resources, states routinely engage private firms to perform audits of companies’ financial records. These audit firms conduct often costly and burdensome forensic examinations on behalf of multiple states at once (some of which pay an hourly fee and others of which pay based on a percentage of the property they “uncover” in an audit). The audit firms follow their own methodology, which tends to be standardized even across states with substantially different laws, and by their own admission, almost always succeed in “finding” unreported unclaimed property.
The problem with outsourcing the care of the golden goose is that the motives of for-profit, private firms differ greatly from the long-standing purpose of escheat, as espoused by the states. Instead of a focus on reunification and returning funds, contingent-fee auditors engaged by the states are incentivized to maximize the collection of funds for their own private benefit. Moreover, states’ lack of supervision over these firms has enabled them to employ aggressive, shock-the-conscience methodology, putting unclaimed property revenue at risk.
Treatment: Recommendations and Considerations
State administrators can fix the problem, even while they continue to benefit from contingent-fee or private-firm arrangements (so long as courts do not hold such arrangements to be unlawful, of course). However, they require sufficient internal resources to do so. State controllers and revenue departments responsible for unclaimed property require personnel—to research and draft balanced policies, as well as to participate in, negotiate, and resolve legitimate audit disputes. Instead of focusing narrowly on single-year annual revenue collections, departments should support long-term fiscal stability. State leaders must acknowledge and communicate that program oversight is the province of state government, divorced from an individual profit incentive.
By delegating policy itself to for-profit companies, state unclaimed property programs focus on short-term collections to the exclusion of other legitimate policy goals. This renders them vulnerable to broad legal challenges—for violating constitutional rights, jeopardizing citizens’ own privacy, and conflicting with the states’ own contract law. States must consider these issues in drafting regulations instead of only expanding the scope of collectible funds and the ability of private audit firms to “hunt” for them.
Lastly, states have the authority, if not the capacity, to tailor the methods crafted by private auditors to their own state laws and goals. Yet, they rarely do. States appear reticent to intervene in audit disputes, or mediate legitimate disputes in legal interpretation, even though they could avoid costly, blanket legal decisions if they did so.
In conclusion, the goose seems unwell. The state government has found a way to generate more unclaimed property with little to no expenditure, potentially harming the states’ fiscal health in the long run. The solution is for states to ensure compliance and enforcement in a manner that is consistent with long-term policy goals. States should steer their unclaimed property programs to stabilize state coffers. They should start with adequate oversight of private audit firms, ensuring those firms’ methods yield to long-term state goals.
This publication is a condensed version of the original article in the Daily Tax Report, which can be found here.
Sara A. Lima is a partner at Reed Smith (Philadelphia office). Her practice focuses on navigating the ever-evolving unclaimed property (escheat) laws.
Freda L. Pepper is a counsel at Reed Smith (Philadelphia office). Her practice focuses on advising companies on unclaimed property issues and guiding clients through unclaimed property audit defense, voluntary disclosure, and unclaimed property controversy matters.
Ashley R. Rivera is an associate at Reed Smith (Philadelphia office). Her practice focuses primarily on sales and use taxes, as well as gross receipts taxes, in Pennsylvania and Washington.