HB-4703, As Passed House, September 24, 2013
May 7, 2013, Introduced by Rep. Farrington and referred to the Committee on Tax Policy.
A bill to amend 1995 PA 29, entitled
"Uniform unclaimed property act,"
(MCL 567.221 to 567.265) by adding section 31a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 31a. (1) If, after examining any report required by this
act and filed by or on behalf of a holder or after the conclusion
of an examination of a holder, the administrator determines that a
holder has underreported abandoned or unclaimed property due and
owing under this act, the administrator shall mail a statement of
findings and request for payment to the holder that filed, or on
whose behalf the report was filed, or that was the subject of an
examination. Sixty days after the date on which the administrator
mails a statement of findings and request for payment, the
statement of findings shall constitute the administrator's final
determination of the amount of the holder's liability, including
interest and penalties, if any, for the abandoned or unclaimed
property specified in the statement of findings and request for
payment. The statement of findings and request for payment does not
constitute the administration's final determination for property
types and amounts as to which the holder files a timely protest
with the administrator under subsection (2). The administrator may
enforce any final determination as provided in this act.
(2) Within 60 days after the date of the mailing of a
statement of findings and request for payment under subsection (1),
the holder may file with the administrator a written protest of the
statement of findings and request for payment in which the holder
shall set forth the property type or types and amount of abandoned
or unclaimed property protested, and the specific grounds upon
which the protest is based. The protest allows the holder to have
his or her objections to the final request for payment reconsidered
internally within the department of treasury by the administrator
as a means of expediting resolution of any dispute. If the holder
elects to file a protest and to have its objections to the final
request for payment reconsidered internally within the department
of treasury, as provided by subsections (2) through (11), the
holder shall exhaust these administrative remedies before
initiating any proceeding in a circuit court of competent
jurisdiction in this state.
(3) The only matters that the administrator shall reconsider
on a protest are the property types, amounts, and issues related to
the examination that are set out in the written protest of the
holder. The holder shall remit with the protest any abandoned or
unclaimed property liability attributable to property types for
which payment is requested in the statement of findings and request
for payment that are not protested and shall also remit with the
protest the amount of abandoned or unclaimed property liability, if
any, that the holder believes to be due and owing with respect to
the property types or liability that is the subject of the protest.
The pendency of a protest shall not prevent the accrual of interest
on any protested amount finally found to be due and owing. Holders
may remit the entire amount in the statement of findings and
request for payment in order to prevent the accrual of additional
interest without waiving any rights for reconsideration or review
of protested amounts under this section, and that remittance shall
be subject to refund from the date of payment, with statutory
interest, to the extent not finally determined to be due and owing.
Failure to remit amounts required by this subsection shall result
in termination of the protest, and the administrator may enforce
any final determination in accordance with subsection (11).
(4) The holder may submit additional documentation and written
submissions to the administrator in support of the protest,
provided, however, that the additional documentation and written
submissions shall be made no later than 60 days following receipt
of the holder's protest. The administrator may convene meetings
with the holder to facilitate review of the statement of findings
and request for payment and the protest.
(5) The administrator shall, within 60 days of the receipt of
the holder's protest or, if additional documentation is submitted,
no later than 120 days after the receipt of the holder's protest,
make a written determination on the protest setting forth the
administrator's basis of any determination that is adverse, in
whole or in part, to the holder. However, the time periods set
forth in this subsection may be extended by the administrator for
good cause, but in no event shall any extension exceed 183 days
from the day the administrator received the holder's protest. The
administrator shall mail the written determination on the protest
to the holder by certified or registered mail at the address
provided in the holder's protest.
(6) Thirty days after the date on which it is mailed, the
determination by the administrator of a holder's protest shall be
final, unless within that time a holder files a notice of appeal
with the treasurer. If the holder does not file a timely notice of
appeal with the treasurer, the administrator may enforce any final
determination in accordance with subsection (11). The notice of
appeal shall set forth the holder's name, mailing address,
telephone number, the name of the person or persons representing
the holder, their mailing address and telephone number, and the
matters in which the holder asserts that the administrator erred in
the determination on the protest of the holder.
(7) After receipt of a holder's written notice of appeal, the
treasurer shall as soon as practicable, but in no event later than
90 days after receipt, appoint a person who is not otherwise
currently employed by the department of treasury to act as an
independent reviewer to consider the appeal of the administrator's
findings and make a written report to the treasurer. The
independent reviewer shall be a former member of the judiciary or
an attorney licensed in this state who is qualified by experience
or training to serve.
(8) The appeal to the independent reviewer is de novo on the
record. The record on the appeal to the independent reviewer shall
be based solely upon documents submitted during the course of the
examination to the administrator or a person who conducted an
examination on the administrator's behalf, other nonprivileged
materials prepared by or for the administrator during the conduct
of an examination, expert reports submitted to the administrator by
the person filing a protest, other nonprivileged materials, and
expert reports prepared by or for the administrator during the
consideration of a protest.
(9) The independent reviewer shall hold an oral hearing on the
appeal, which shall be held, unless otherwise agreed by the
parties, within 90 days after the date on which the treasurer
appoints the independent reviewer under subsection (7). At least 7
days prior to the oral hearing date, or at such other time ordered
by the independent reviewer, the holder and administrator shall
each submit to the independent reviewer and each other a brief
containing argument and referencing supporting documentation from
the record before the administrator or an explanation as to why the
supporting documentation is not available. A decision in writing by
the independent reviewer setting forth findings of fact and
conclusions of law shall be submitted by the independent reviewer
to the treasurer within 90 days from the date of the conclusion of
the oral hearing or the completion of any post-hearing briefing
requested by the independent reviewer, whichever is later. The
independent reviewer shall assess costs, including the independent
reviewer's fee, against a party or between the parties in the
independent reviewer's discretion.
(10) The treasurer may adopt or reject the independent
reviewer's determination in whole or in part. If the treasurer
modifies or rejects, in whole or in part, the determination of the
independent reviewer, the treasurer shall issue a decision in
writing setting forth the basis of any rejection or modification of
the determination of the independent reviewer. Within 60 days of
the receipt by the treasurer of the independent reviewer's
decision, a copy of the treasurer's determination, if any, along
with the independent reviewer's written decision, shall be sent to
the holder by certified or registered mail at the address set forth
in the holder's notice of appeal. The determination of the
treasurer as to those liabilities that are the subject of the
appeal shall be final as to the department of treasury. The holder
may, within 30 days after the treasurer's written decision was
mailed, appeal the treasurer's determination in the circuit court.
The court's review shall be limited to whether the treasurer's
determination was supported by substantial evidence on the record.
If the court determines that the record is insufficient for its
review, it shall remand the case to the department for further
proceedings on the record.
(11) If any person refuses to pay or deliver property,
including penalty or interest on that property, to the
administrator as required by this act, the administrator may bring
an action in the circuit court in the county wherein the holder
resides or has a principal place of business or, if no residence or
principal place of business exists, in Ingham county to enforce the
payment or delivery.
(12) Whenever a holder disputes whether reasonable cause
exists for abating penalty or interest determined by the
administrator to be due under this act, the holder may bring an
action in circuit court for the purpose of showing an abuse of
discretion by the administrator in making the determination that
penalty or interest was due.