C.S.H.B. 1465 78(R)    BILL ANALYSIS


C.S.H.B. 1465
By: Hartnett
Business & Industry
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

A business can make a payment by check for a legitimate expense that for
any number of reasons never gets cashed by the payee.  The funds become
"unclaimed property" subject to escheat to the Comptroller of Public
Accounts if the owner's location becomes unknown to the business for a
period of three years or more.  There are a number of different
transactions that can be subject to the unclaimed property provisions,
including, among others, uncashed dividend, payroll or cashier's checks,
gift certificates, stocks, mutual fund accounts, bonds, utility deposits
and other refunds, bank accounts, insurance proceeds, mineral interest or
royalty payments, court deposits, trust funds, and escrow accounts.  In
many cases, such unclaimed property may only be discovered by an audit of
the business' records by the comptroller, the attorney general, or the
authorized agent of either.  The period of the audit may exceed the period
that the business has retained records required by the Internal Revenue
Service or the Texas Tax Code. 

The auditor will then assess the business for the amount of the unclaimed
property based on actual records, if available, or an estimate based on
whatever records are available.  Interest is then assessed on this amount
equal to ten percent per year that the property was not surrendered to the
comptroller. A penalty equal to five percent of the property's value is
added, and if the property has been retained more than 31 days an
additional five percent penalty is assessed. 

The only recourse for a business who disagrees with an unclaimed property
audit is to refuse to pay and then wait to be sued by the attorney general
in district court in Travis County.  There is no administrative remedy,
and if the business pays the assessment, it is unclear whether it has any
statutory right to seek a refund of all or part of the property if an
error is later discovered.  Following a suit in which the attorney general
is the prevailing party, in addition to the property, interest, and
penalty, the state may recover reasonable attorney's fees from the
business in addition to a further civil penalty not to exceed $100 per day
that the business has possessed the unclaimed property. 

House Bill No. 1465 establishes the process for an administrative hearing
for a holder of  property who disagrees with an unclaimed property
assessment. 



RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

A business can make a payment by check for a legitimate expense that for
any number of reasons never gets cashed by the payee.  The funds become
"unclaimed property" subject to escheat to the Comptroller of Public
Accounts if the owner's location becomes unknown to the business for a
period of three years or more.  There are a number of different
transactions that can be subject to the unclaimed property provisions,
including, among others, uncashed dividend, payroll or cashier's checks,
gift certificates, stocks, mutual fund accounts, bonds, utility deposits
and other refunds, bank accounts, insurance proceeds, mineral interest or
royalty payments, court deposits, trust funds, and escrow accounts.  In
many cases, such unclaimed property may only be discovered by an audit of
the business' records by the comptroller, the attorney general, or the
authorized agent of either.  The  period of the audit may exceed the
period that the business has retained records required by the Internal
Revenue Service or the Texas Tax Code. 

The auditor will then assess the business for the amount of the unclaimed
property based on actual records, if available, or an estimate based on
whatever records are available.  Interest is then assessed on this amount
equal to ten percent per year that the property was not surrendered to the
comptroller. A penalty equal to five percent of the property's value is
added, and if the property has been retained more than 31 days an
additional five percent penalty is assessed. 

The only recourse for a business who disagrees with an unclaimed property
audit is to refuse to pay and then wait to be sued by the attorney general
in district court in Travis County.  There is no administrative remedy,
and if the business pays the assessment, it is unclear whether it has any
statutory right to seek a refund of all or part of the property if an
error is later discovered.  Following a suit in which the attorney general
is the prevailing party, in addition to the property, interest, and
penalty, the state may recover reasonable attorney's fees from the
business in addition to a further civil penalty not to exceed $100 per day
that the business has possessed the unclaimed property. 

House Bill No. 1465 establishes the process for an administrative hearing
for a holder of  property who disagrees with an unclaimed property
assessment. 

 

EFFECTIVE DATE

September 1, 2003



COMPARISON OF ORIGINAL TO SUBSTITUTE

The introduced versions of the H.B. 1465 established an administrative
hearings process for "owners"of alleged unclaimed property.  This could
include the payor or payee.  In many cases the payee is unknown and
represents a very large potential class of persons. 

The substitute version establishes the administrative hearings process for
the "holders" of alleged unclaimed property.  This would be the payor of
alleged unclaimed property paid to another.  This is a significantly
smaller class of persons who are easily identified.   

Limiting the right to the holders of unclaimed property greatly reduces
the administrative burden on the Comptroller's office, while not
significantly affecting the rights of the owners who can make a claim
their property at any time.