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Montana Administrative Register Notice 42-2-877 No. 5   03/08/2012    
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BEFORE THE DEPARTMENT OF REVENUE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 42.38.101, 42.38.102, 42.38.104, 42.38.201, 42.38.203, 42.38.204, and 42.38.206 relating to the general provisions and disposition of abandoned property

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

1. On April 17, 2012, at 2:00 p.m., a public hearing will be held in the Third Floor Reception Area Conference Room of the Sam W. Mitchell Building, at Helena, Montana, to consider the amendment of the above-stated rules.

Individuals planning to attend the hearing shall enter the building through the east doors of the Sam W. Mitchell Building, 125 North Roberts, Helena, Montana.

 

2. The Department of Revenue will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Revenue no later than 5:00 p.m., April 6, 2012, to advise us of the nature of the accommodation that you need. Please contact Cleo Anderson, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-5828; fax (406) 444-4375; or e-mail canderson@mt.gov.

 

3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

 

42.38.101 PURPOSE (1) The Uniform Unclaimed Property Act provides that property presumed abandoned under the act shall be delivered to and taken into custody by the department of revenue Department of Revenue. The department shall protect the unknown owners by returning property delivered to the department under the act upon the filing of a verified claim by the owner which is approved by the department.

 

AUTH70-9-828, MCA

IMP70-9-805, 70-9-815, MCA

 

REASONABLE NECESSITY: The department proposes to amend ARM 42.38.101 as a matter of housekeeping to capitalize the Department of Revenue title to conform to the style instruction of the Secretary of State.

 

42.38.102 APPLICABILITY (1) remains the same.

(2) Holders required to report and deliver abandoned property in their possession to the department of revenue Department of Revenue include but are not limited to:

(a) banks, trust companies, savings banks, and other banking organizations;

(b) credit unions, savings and loan associations, and other financial organizations;

(c) corporations, partnerships, medical facilities, insurance companies, cooperatives, and other business associations; and

(d) courts, public offices, agencies, and political subdivisions of Montana or the United States.

 

AUTH70-9-828, MCA

IMP70-9-803, 70-9-804, MCA

 

REASONABLE NECESSITY: The department proposes to amend ARM 42.38.102 as a matter of housekeeping to capitalize the Department of Revenue title.

 

42.38.104 PRESUMPTION OF OWNERSHIP (1) remains the same.

(2) Presumption of ownership of other intangible property required to be reported to the department of revenue Department of Revenue, and thereafter delivered to the state, shall arise from the records of the person reporting the ownership or entitlement to such property.

 

AUTH70-9-828, MCA

IMP70-9-802, 70-9-805, MCA

 

REASONABLE NECESSITY: The department proposes to amend ARM 42.38.104 as a matter of housekeeping to capitalize the Department of Revenue title.

 

42.38.201 PRESUMPTION OF ABANDONMENT – EXCEPTION

(1) and (2) remain the same.

(3) Tangible safe deposit box property must be shipped to the following address:

Montana Department of Revenue

Unclaimed Property Manager

2517 Airport Rd.

Helena, MT 59601

 

AUTH70-9-828, MCA

IMP70-9-803, 70-9-804, 70-9-805, 70-9-808, MCA

 

REASONABLE NECESSITY: The department is proposing to amend ARM 42.38.201 for the purpose of improving the security of unclaimed property. The proposal does so through the addition of new (3), which requires safe deposit box tangible property to be shipped directly to the unclaimed property unit of the department, where a secure room is located. The rule further provides the direct mailing address in the rule. The department is proposing the amendment to strengthen internal controls and to ensure that packages are opened where the unclaimed property is stored.

In the past, property mailed through the US Postal Service to the department's general post office box was occasionally opened and handled with all other department mail by mailroom employees, as a matter of routine, prior to reaching the secure property room. Although no problems arose as a result, the department proposes this amendment for added security in the future.

 

42.38.203 CLAIMS FOR RECOVERY OF PROPERTY DELIVERED TO STATE (1) The owner of property presumed abandoned which has been delivered to the department of revenue Department of Revenue as abandoned property shall must claim such the property or the proceeds of such the property upon on forms supplied by the department.

(a) No claim may be filed for property with a value of less than $50 unless the holder has specifically identified the owner of the property to the department, and the holder has done so since the implementation of the department's new abandoned property computerized tracking system in June 2007.

(2) General claim requirements are as follows:

(a) Submission of a claim and request for return of property in the possession of the department must be on a form prescribed by the department and bearing the notarized signature of the owner, if required by the department.

(b) The department may require production of originals or copies of driver's license, social security card, voter registration card, or any other documents needed to verify a claimant's identity and signature.

(c) A claim received from an owner of property held by the department shall have first payment priority over any other claim, unless:

(i) such the other claim is supported by a court ordered judgment against the owner; or

(ii) upon a bond or other indemnified claim is received from the former holder of the property.

(3) Specific claim requirements are as follows:

(a) In the course of verifying a claim, the department is authorized to require reproduction of any of the following:

(i) a properly completed claim form prescribed by the department, bearing the notarized signature of the claimant;

(ii) original negotiable instrument;

(iii) a stock certificate;

(iv) check;

(v) money orders;

(vi) certificate of deposit; and

(vii) cashier cashier's check.

(b) Originals or photo copies photocopies of any of the following documents to substantiate the right to claim property:

(i) death certificate;

(ii) birth certificate;

(iii) marriage license of claimant or decedent;

(iv) complete last will and testament or letter from the Clerk of District Court stating there is no will or probate record on file;

(v) insurance policy;

(vi) document establishing trust;

(vii) power of attorney;

(viii) indemnity bond;

(ix) articles of incorporation;

(x) final account of decree of distribution;

(xi) valid drivers driver's license;

(xii) social security card;

(xiii) voter registration card;

(xiv) court document showing appointment as personal representative, executor, executrix, conservator, etc.; and

(xv) affidavit of authority to receive and disburse funds for the person or company.;

(xvi) affidavit for collection of personal property of decedent;

(xvii) proof of federal identification number;

(xviii) proof of address;

(xix) disposition of stock; and

(xx) decedent's family history.

(4) Claims for abandoned property submitted by a finder must include:

(a) A properly completed claim form as prescribed by the department, bearing the notarized signature of the claimant; and

(b) An original, signed power of attorney authorizing the finder to prosecute a claim for abandoned property on behalf of a claimant. The power of attorney must contain:

(i) specific authorization to release private information concerning the owner's interest in the property; and

(ii) specific instructions concerning payment.

(5) Only one check is issued by the state. The check will be issued in the name of the person signing the power of attorney and mailed to the finder, unless the power of attorney specifically states that the check is to be made payable to both the finder and the person signing the power of attorney. If the check is made payable to the finder only, the power of attorney must specifically authorize "authority to receive the check in the name of the (fee finder's name)".

(6) remains the same but is renumbered (4).

 

AUTH70-9-828, MCA

IMP70-9-815, 70-9-825, MCA

 

REASONABLE NECESSITY: The department's proposed amendments to ARM 42.38.203 are necessary to enable the department to return more abandoned property to more rightful owners in more convenient and timely ways.

The proposed amendments to (1) will allow for claims to be filed when they are less than $50 in value. While the rule previously did not allow for claims less than $50, it is now possible to process them in cases where holders have provided the department with adequate information. This circumstance often occurs now as a result of technological advances that have been made within computer systems used by both the holders of abandoned properties and by the department.

Using computerized data programs, some holders have begun reporting to the department each property with a value under $50, even though they still have the option under Montana statute to report these properties in the aggregate (without specific owner information). 

The department's upgraded abandoned property tracking computer system enables the department to electronically receive and maintain more information than it could before. As a result, the department is now able to return properties valued under $50 to owners, provided the holder of those properties included the specific owner information when they reported the property to the department, and did so after the implementation of the department's upgraded abandoned property computer system in June 2007.

The department is also proposing to amend (2) because the new abandoned property tracking computer system cross-references a computerized database and initiates claims for owners.  Because these claims originate with the department, rather than with the owner, the department does not require a notarized signature for such claims. All other claims initiated by the owners still require a notarized signature.

The department diligently and consistently strives to prevent fraudulent or incorrect claims, in the interest of protecting the rightful owners of abandoned properties. To that end, the department is further proposing amendments to (3) to include the various types of information that the department routinely requires as documentation or proof from claimants, depending on the many circumstances that can apply to the property and/or the claimants.

The department is proposing to remove the current language in 42.38.203 (4) and (5), and place it into ARM 42.38.206, to provide all information about abandoned property finders into one subchapter within the chapter 38 rules to make it more convenient for citizens and finders to locate the information.

Furthermore, the department proposes to amend ARM 42.38.203 as a matter of housekeeping to capitalize the Department of Revenue title.

 

42.38.204 DEFINITIONS (1) remains the same.

(2) "Payee" means a person to whom or to whose order a bill, note, check, or money order is made payable.

(3) "Remitter" means the purchaser of a check, money order, or cashier's check.

(4) and (5) remain the same, but are renumbered (2) and (3).

(6) "Unconscionable fee" means the fee or compensation paid to a finder by the owner that exceeds 15% of the value of the property paid or delivered to the administrator.

 

AUTH70-9-828, MCA

IMP70-9-802, MCA

 

REASONABLE NECESSITY:  The department is proposing to amend ARM 42.38.204, as a matter of housekeeping, to remove the definitions of "payee" and "remitter" because these terms are no longer used in the proposed version of the rules.

The department is also proposing to delete the term "unconscionable fee" and add the terminology to ARM 42.38.206, which the department is proposing to amend as part of combining all finder information together within a single rule.

 

42.38.206 PROPERTY SEARCH REQUESTS CLAIMS OF PROPERTY BY FINDERS (1) All requests for physical inspection of the department's unclaimed property records, must be made two weeks in advance Claims for abandoned property submitted by a finder must include:

(a) a properly completed claim form as prescribed by the department, bearing the notarized signature of the claimant; and

(b) an original signed power of attorney, or written agreement, authorizing the finder to prosecute a claim for abandoned property on behalf of a claimant. The power of attorney or written agreement must contain:

(i) specific authorization to release private information concerning the owner's interest in the property; and

(ii) specific instructions concerning payment.

(2) Subject to the exercise of discretion by the department, searches will normally be made during the hours of 8 a.m. to 5 p.m., weekdays except holidays A finder may not charge a fee that exceeds 15 percent of the value of the property paid or delivered to the administrator. Any amount that exceeds this percentage is considered unconscionable.

(3) A finder must have a current private investigators license from the State of Montana to serve as a finder on behalf of the owner of property, as required in 37-60-101, MCA.

(4) Only one check is issued by the state. The check will be issued in the name of the person signing the power of attorney and mailed to the finder, unless the power of attorney specifically states that the check is to be made payable to both the finder and the person signing the power of attorney or written agreement. If the check is to be made payable to the finder only, the power of attorney or written agreement must specifically authorize "authority to receive the check in the name of the (fee finder's name)."

(3)(5) In the event of a written request by a finder that the department do a search on behalf of the finder's client, the department may require written confirmation of the request bearing the claimant or client's signature. If the claimant or client is a business, it will be sufficient if the confirmation letter is on company letterhead.

 

AUTH70-9-828, MCA

IMP70-9-820 70-9-825, MCA

 

REASONABLE NECESSITY: The department is proposing to amend ARM 42.38.206 to combine all information about finders into a single rule to improve public understanding.

New (1) explains what finders must include along with claims for abandoned property. It is comprised of the language the department is proposing to strike from ARM 42.38.203(4) as part of combining all information about finders into a single rule. In addition, the words "or written agreement" were added to the language to provide the finder with the leniency to create a legal document in place of a power of attorney.

New (2) states what is considered to be an unconscionable finder's fee. It is comprised of the language the department is proposing to strike from ARM 42.38.204(6), as part of combining all information about finders into a single rule.

New (3) provides information about the State of Montana's requirements for being a finder on behalf of property owners, and includes the statutory reference. This is not a new requirement. The department is proposing to add the additional language to the rule to eliminate confusion regarding licensing requirements for finders of property. The Department of Labor and Industry, Board of Private Investigators, administers the licensing of finders.

New (4) explains how a check will be issued. It is the language the department is proposing to strike from ARM 42.38.203(5), as part of combining all information about finders into a single rule.

Furthermore, the department proposes to amend ARM 42.38.206 to update the implementing citation.

 

4. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to: Cleo Anderson, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-5828; fax (406) 444-4375; or e-mail canderson@mt.gov and must be received no later than April 20, 2012.

 

5. Cleo Anderson, Department of Revenue, Director's Office, has been designated to preside over and conduct the hearing.

 

6. An electronic copy of this notice is available on the department's web site at www.revenue.mt.gov. Locate "Legal Resources" in the left hand column, select the "Rules" link and view the options under the "Current Rulemaking Actions – Published Notices" heading. The department strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

7. The Department of Revenue maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request, which includes the name and e-mail or mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding particular subject matter or matters. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the person in 4 above or faxed to the office at (406) 444-4375, or may be made by completing a request form at any rules hearing held by the Department of Revenue.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor of House Bill 755, L. 2007, Senator Jim Keane, was notified by regular mail on September 30, 2011, and subsequently notified by regular mail on February 16, 2012.

 

 

 

 /s/ Cleo Anderson                           /s/ Dan R. Bucks

CLEO ANDERSON                         DAN R. BUCKS

Rule Reviewer                                 Director of Revenue

 

Certified to Secretary of State February 27, 2012

 

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