2021 Delaware Code
Title 12 - Decedents' Estates and Fiduciary Relations
Chapter 11. Escheats
Subchapter II. Unclaimed Property
§ 1172. Rules and procedures for conducting an examination [For application of this section, see 83 Del. Laws, c. 59, § 25].
(a) Effective July 1, 2015, and subject to subsection (d) of this section, the State Escheator shall not initiate any new examination of records or an investigation of any person under this section unless the person has first been notified in writing by the Secretary of State that the person may enter into an unclaimed property voluntary disclosure agreement, or the holder fails to otherwise comply with a requirement imposed on such holder pursuant to § 1173 of this title.
(b) Notwithstanding the provisions of § 1173(e)(3) of this title, for any examination authorized by the State Escheator on or before July 22, 2015, except any securities examinations in which estimation is not required, the person under such an examination may notify the State Escheator and the Secretary of State of the person's intent to convert the pending examination into a review under the Secretary of State's voluntary disclosure program and to enter into the Secretary of State's unclaimed property voluntary disclosure program under § 1173 of this title. The person shall notify the State Escheator and Secretary of State in writing in a form and manner provided by the State Escheator and the Secretary of State. If such notice is not received within 60 days of the adoption of regulations under § 1176(b) of this title, the person may not convert the examination into a review under the Secretary of State's unclaimed property voluntary disclosure program under § 1173 of this title. The look back period for any such voluntary disclosure permitted under this section is 10 years prior to when property is presumed abandoned under this chapter from the calendar year in which the State Escheator provided the original notice of examination.
(c) (1) For any examination authorized by the State Escheator after February 2, 2017, and before August 1, 2021, the person under examination may notify the State Escheator of the person's request to expedite the completion of the pending examination by providing written notification on a form provided by the State Escheator, responses to all pending or outstanding requests for records, testimony, and information made by the person conducting the examination, and a detailed workplan and schedule for completion of the expedited examination that must be received by the State Escheator by September 29, 2021. For any examination authorized by the State Escheator after August 1, 2021, the person under examination may notify the State Escheator of the person's request to expedite the completion of the pending examination by providing written notification on a form provided by the State Escheator, responses to all pending or outstanding requests for records, testimony, and information made by the person conducting the examination, and a detailed workplan and schedule for completion of the expedited examination. Within 60 days, the State Escheator shall issue a written determination to accept or deny the person's request to expedite completion of the examination, or otherwise seek agreement with the person requesting to expedite to revise the detailed work plan and schedule for completion so that the State Escheator might accept the person's request to expedite completion of the examination. For any person whose request to expedite the completion of the pending examination is accepted, the State Escheator shall provide written notice of the acceptance within 60 days of receipt of the person's request. This determination shall be within the complete discretion of the State Escheator and subject only to the review of the Secretary of Finance.
(2) Except as otherwise provided in paragraph (c)(1) of this section, for any person who notifies the State Escheator of the person's request to expedite the completion of the pending examination by providing written notification on a form provided by the State Escheator under § 1173(b) of this title, the State Escheator shall mail a notice of examination within 30 days of receipt of the person's request to expedite the completion of the pending examination.
(3) If the request to expedite the completion of the examination is accepted under paragraph (c)(1) of this section or the person received a notice of examination under paragraph (c)(2) of this section and the person provides sufficient responses within the time and in the manner established by the State Escheator to all requests for records, testimony, and information made by the person conducting the examination, the State Escheator shall complete the examination and provide an examination report within 2 years from the date of the acceptance of the request to expedite under paragraph (c)(1) of this section or the notice of examination under paragraph (c)(2) of this section and shall apply interest per § 1185(a)(2) of this title, provided that the person complies with paragraph (c)(7) of this section.
(4) All requests for records, testimony, and information must be made by the person conducting the examination to the person under examination no later than 18 months after the acceptance of the request to expedite under paragraph (c)(1) of this section or the notice of examination under paragraph (c)(2) of this section.
(5) The determination whether the person has responded within the time and in the manner established and a resulting determination to terminate expediting the person's examination under this subsection if the person has not, shall be within the complete discretion of the State Escheator and subject only to the review of the Secretary of Finance. Upon termination of the expedited examination, the person shall be under nonexpedited examination, subject to the terms and conditions of such an examination as provided by this subchapter.
(6) A statement of findings produced at the conclusion of the expedited examination shall be treated as any other report after the conclusion of an examination of a holder under § 1179(a) of this title.
(7) A person whose request to expedite has been accepted under paragraph (c)(1) of this section or who received a notice of examination under paragraph (c)(2) of this section this must deliver full and final payment in accordance with § 1179 of this title not later than the earlier of any the following:
a. Ninety days after the date the State Escheator provides a statement of findings and request for payment.
b. Not later than 3 years from the acceptance of the request to expedite under paragraph (c)(1) of this section or the notice of examination under paragraph (c)(2) of this section.
c. No more than 180 days after the date determined under either paragraph (c)(7)a. or b. of this section pursuant to a single extension, which shall be determined within the complete discretion of the State Escheator and subject only to the review of the Secretary of Finance. If the person fails to deliver full and final payment, the State Escheator may terminate the expedited examination per paragraph (c)(5) of this section, and the person shall be under nonexpedited examination, subject to the terms and conditions of such an examination as provided by this subchapter.
(d) The State Escheator may authorize an examination of records or an investigation of any person under this section without the person having been notified in writing by the Secretary of State as outlined in subsection (a) of this section in any of the following circumstances:
(1) Pursuant to information received under Chapter 12 of Title 6.
(2) As a joint examination initiated by another state under § 1182 of this title after consultation with the Secretary of State.
(3) Where the Secretary of State may not enter into an unclaimed property voluntary disclosure agreement with person subject to § 1173(e) of this title.
(e) The State Escheator shall adopt rules governing procedures and standards for a compliance review under § 1170 of this title and an examination under § 1171 of this title, including rules for use of an estimation, extrapolation, and statistical sampling in conducting an examination.
(f) If the person subject to examination under § 1171 of this title has filed all reports required by § 1142 of this title and has retained the records required by § 1145 of this title, all of the following rules apply:
(1) The examination must include a review of the person's records.
(2) The examination may not be based upon an estimate unless the holder expressly consents in a record to the use of an estimate.
(3) The person conducting the examination shall consider all evidence presented by the person in good faith in preparing the findings of the examination under § 1177 of this title.
(g) Any examination under this section may include the State Escheator utilizing any and all reliable external data, including electronic databases deemed relevant by the State Escheator.
(h) After February 2, 2017, the State Escheator may not conduct any examination of records or an investigation under this section with respect to the reporting, payment, or delivery of property more than 10 years after the duty arose under this chapter from the earlier of the date on which the State Escheator delivers written notice of such examination or the Secretary of State delivers notice that the person may enter into an unclaimed property voluntary disclosure agreement under subsection (a) of this section, except if the State Escheator reasonably concludes that the holder has filed a report containing a fraudulent or wilful misrepresentation.
(i) Subject to this section and § 1171 of this title, the State Escheator may authorize an examination of records or an investigation of any person, or any agent, representative, subsidiary or affiliate of the person under examination, or party in possession of information related to such examination, for any reason related to an examination and is under no obligation to provide any other more specific or detailed reason or justification for the examination to the person under examination or any agent, representative, subsidiary or affiliate of the person under examination, or any party in possession of information related to such examination, other than the request being related to an examination to determine compliance with this chapter.
(j) For any holder who requests to enter into the voluntary disclosure agreement program under § 1173 of this title and subsequently voluntarily withdraws or is referred to the State Escheator pursuant to § 1173(a)(4) of this title, the State Escheator may not conduct any examination of records or an investigation under this section for any period more than 10 years prior to when property is presumed abandoned under this chapter from the calendar year in which the holder provided written notice of such holder's intent to enter into the voluntary disclosure agreement program pursuant to § 1173 of this title, except if the State Escheator reasonably concludes that the holder has filed a report containing a fraudulent or wilful misrepresentation.
67 Del. Laws, c. 267, § 2; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 417, § 4; 80 Del. Laws, c. 2, § 1; 80 Del. Laws, c. 114, § 1; 81 Del. Laws, c. 1, § 2; 81 Del. Laws, c. 48, § 4; 83 Del. Laws, c. 59, § 14; 83 Del. Laws, c. 59, § 15;
