DE SB 281, Enacted and Effective June 30, 2022: What Holders Need To Know

Enacted and made effective on June 30, 2022, Delaware SB 281 makes significant changes to Delaware’s unclaimed property law. Holders currently under audit or who are participating in a voluntary disclosure program (VDA) with Delaware’s Secretary of State (DE SOS), as well as holders in litigation should take note that many of these new provisions apply retroactively.

Below is a summary of the key provisions:

Enforcement: Verified Reports and Compliance Reviews

• While the Department of Finance is required to notify a holder of the opportunity to participate in the Secretary of State’s VDA program before it can initiate an audit, the new law allows the state to initiate an audit if a holder has not responded to or completed a verified report or compliance review, without requiring such notice.

• The state can request a verified report or initiate a compliance review for any reason, whereas prior to the new law, the state needed reason to believe that the holder had previously filed an inaccurate, incomplete, or false report.

Record Retention

• While the record retention period of 10 years (plus the dormancy period) is maintained, the new law clarifies that for holders under examination or participating in the VDA program, the 10-year period begins on the earliest of (i) delivery of the notice of examination, (ii) delivery of the VDA notice, or (iii) the holder’s written election to enter the VDA program.

• Holders must also maintain “sufficient” records of items that were NOT reported as unclaimed, to allow the state to determine whether the holder has complied with the law.

Liquidation of Securities

• The state is permitted to send notice of liquidation to owners of securities “as soon as the State Escheator deems practicable” after they are delivered to the state. The provision requiring the state to notify the owner prior to liquidation has been deleted.

• New language is added that permits the state to take steps to find a better address for the owner, though the state will not be held liable for not doing so.

Exemptions

• The new law clarifies that property due to a foreign government, the federal government, or any local or municipal government outside the state is exempt from the reporting requirements.

• Payments or credits arising under the 2022 Delaware Relief Rebate Program are also exempt.

If your company has received any type of communication from Delaware, is currently under audit or participating in, or contemplating, a DE SOS VDA, and needs assistance, please contact us. It is important to stay ahead of the states as they continue to actively enforce their unclaimed property laws. We also recommend that holders perform internal risk assessments and review unclaimed property policies and procedures regularly to ensure that they are up to date with the changing laws.

*Content contained in this article is considered accurate as of the publish date.