Delaware's long fight to collect the world's orphan cash
Collecting abandoned accounts, Delaware "engaged in a game of 'gotcha' that shock[ed] the conscience," but is now building a "friendly compliance regime."
In digital America, dollars get left behind. Forgotten deposits, neglected options converted to shares, orphaned payouts, refunds sent after an account is closed.
Where does all that money go? To the nearest state government.
The idea is, if banks and brokers could keep unclaimed assets, they'd have an incentive not to try too hard to find you. So after several years with no customer contact, your cash or securities are supposed to be declared "unclaimed" or "abandoned" and "escheated" to a state, which is bound to refund your money if you or your heir come looking for it later. (It helps to have a court order.)
How common is this? In Pennsylvania, after refunds, the Treasurer's Unclaimed Property office netted $195 million last year. That works out to less than 1 percent of the state's gross revenues.
Surprisingly often, however, unclaimed money migrates to one small state — Delaware, the "Nation's Corporate Capital."
Delaware's escheator — it's a full-time job — last year collected a net $404 million in unclaimed property, about 10 percent of that state's budget and one of its biggest sources of income.
Delaware's dibs on unclaimed corporate cash and securities — especially from foreign accounts in U.S. banks and brokerages — is one of several tangible benefits of its status as a place that's home to more corporations (over one million) than people. It's the legal home to JPMorgan and Wells Fargo, Comcast and Facebook, among other giants. Their physical headquarters are elsewhere, but they have placed themselves under Delaware law so they can resolve owners' disputes in the state's business-friendly courts and use the services of local incorporators, lawyers, and accountants.
The state is used to challenges to its corporate supremacy. Just last week, the odd couple of liberal U.S. Sen. Elizabeth Warren (D., Mass.) and conservative Sen. John Cornyn (R., Texas) proposed a law to move lucrative corporate bankruptcy cases away from Delaware and toward states where companies have actual bosses and employees. "Misguided," Delaware's congressional delegation called the proposal.
Delaware's unclaimed-property filings have sparked a history of legal challenges. A 2016 decision by Delaware U.S. District Judge Gregory Sleet accelerated changes already underway. Sleet, a Rutgers-Camden law grad and former Philadelphia public defender, ruled against the state in its attempt to grab $2 million from cardboard-maker Temple-Inland. The company complained Delaware's escheatment agent, the Boston-based Kelmar accounting firm, had demanded an unreasonable 22 years' worth of records — far longer than, for example, an IRS audit.
Delaware "exploited loopholes" to examine such a long record; the state should have audited more regularly if it cared that much, Sleet noted. When Temple-Inland admitted it had thrown old records out, Delaware's unclaimed-property hunters made exaggerated estimates of what the company should have to pass along — but "ignored" information that could reduce its liability, Sleet added.
Delaware wasn't trying to protect the public, it just wanted "to raise revenue," Sleet concluded. "To put the matter gently, Delaware has engaged in a game of 'gotcha' that shocks the conscience." Strong words, he noted, and usually only applied in federal cases to "excessive force or physical brutality."
So, Delaware settled with Temple-Inland and went to work tightening its laws again. It has transferred the job of reminding banks and brokers to check for abandoned accounts from the Department of Finance to the Department of State, which in Delaware resembles a tourism bureau in its eagerness to attract corporate business.
"We now have a 10-year statue of limitations," notes Rick Geisenberger, the state's new finance secretary. A few hundred financial companies that account for many escheatments have been invited to join a voluntary-disclosure program that would make audits less likely; a majority signed up. The state is urging banks and brokerages to check, flag, and report abandoned accounts regularly. When estimates differ, Delaware has set up compliance reviews and appeals to state business courts in an effort to build "more of a friendly compliance regime," Geisenberger told me, in the office of the new escheator, veteran tax attorney Brenda Mayrack. He says they are aiming for an escheatment system "that is predictable, efficient, and fair," like Delaware courts — but still with the threat of audits for firms that aren't thorough.
Sleet noted that, ten years ago, Delaware had collected $367 million in "unclaimed property" and returned just $20 million to heirs and claimants. Last year, Delaware boosted its returns to around $150 million in cash and securities — and increased its gross collections to $554 million. So the net contribution to state coffers is a little higher, in straight-dollar terms, after a decade of challenges and reforms. By that measure, escheat has almost kept up with inflation.