MoFo State & Local Tax Insights

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In this issue: Honey, I Shrunk the Dormancy Periods!; No Solicitation: Sales Tax Nexus, the Amazon Law, and the Perils of Affiliate Advertising; and California Adopts Regulation Prescribing Sales and Use Tax Audit Procedures.

Excerpt from 'Honey, I Shrunk the Dormancy Periods!':

Dormancy periods — the periods after which a state presumes that property has been abandoned by its owner and requires that the property be turned over to the state — have become incredibly short. These periods, once characterized as “long lapses of time,” are now as short as three years for many of the most common property types. Owners are routinely caught unaware that states will seize — or have seized — their property. Property that owners believe is safe, sound and protected, earning interest and appreciating in value, often becomes lost or untraceable, its income-generating capacity stripped. The effect of the premature takings is often dire. In this article we will focus on some of the practical and legal implications of shrinking dormancy periods in unclaimed property statutes.

In the early years of unclaimed property law, statutory distinctions in dormancy periods for different types of property were common, based on the realistic understanding that some property was intended by owners to sit untouched and that no presumption of abandonment should arise prematurely. For example, in 1942 Kentucky set its dormancy period at 10 years for bank demand deposits, but at 25 years for bank time deposits. Likewise, state courts recognized the wisdom in long dormancy periods for some types of property. In New York the courts had recognized that the length of time before lapsing and the nature of the property were relevant to a constitutional analysis, and that a 30-year dormancy period for bank deposits might well be proper since such deposits are “ordinarily made to remain for a long period of time.” Similarly, in declaring unconstitutional Ohio’s Unknown Depositors Law, which defined unknown depositors as those whose bank accounts have gone untouched for seven years, Ohio’s Court of Appeals concluded that it was not a “fanciful notion” for a party to “provide a sum for his future needs...intending to leave it there, to forget it...until some time in the future.”

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