Illinois UP Bill Would Retroactively Require Reporting of Gift Cards and B2B Transactions

Earlier this year, an unclaimed property rewrite bill (HB 2603) was introduced in the Illinois House that would require holders to retroactively report a number of property types currently exempt. The provision would require a retroactive period of 10 report years. Items that are currently exempt that would become reportable include gift cards and property resulting from business-to-business (B2B) transactions. Seriously??? The bill would accomplish this result by mirroring a number of provisions included in the Uniform Law Commission’s (ULC) Revised Uniform Unclaimed Property Act (RUUPA) and adding a non-RUUPA “transitional provision” implementing the exemption changes retroactively. Specifically, the bill would include gift cards as property subject to escheat (an optional election in RUUPA) and omit any sort of exemption for B2B transactions (also consistent with RUUPA but not consistent with the accompanying commentary). While the inclusion of gift cards and lack of an exemption for B2B transactions would not be all that surprising in a state that already considers gift cards unclaimed property and doesn’t exempt property from B2B transactions, Illinois law currently applies only to a very limited scope of gift cards and expressly exempts property resulting from B2B transactions. See 765 Ill. Comp. Stat. Ann. 1025/10.6(a) (exempting gift cards other than those with an expiration date or post-sale charge/fee); 765 Ill. Comp. Stat. Ann. 1025/2a(b) (exempting all B2B transactions). Removing these protections prospectively is troubling in and of itself, but HB 2603 goes a step further and makes the new provisions applicable retroactively by adding a transitional provision to the end of the bill that was not considered by the ULC during the RUUPA process. Specifically, the transitional provision states: An initial report filed under this Act for property that was not required to be reported before the effective date of this Act, but that is required to be reported under this Act, must include all items of property that would have been presumed abandoned during the      10-year period preceding the effective date of this Act as if this Act had been in effect during that period. See Section 1503(a). As introduced, the bill would be effective January 1, 2018.  This means that holders would be required to report gift cards and B2B property with last contact dates up to 15 years ago on their 2018 report. This retroactive enforcement is likely to impact most holders. HB 2603 is sponsored by Rep. Michael J. Zalewski (D-majority), who is Chair of the House Revenue & Finance Committee. The bill was re-referred to the House Rules Committee late last month, and has not advanced since. Practice Note: Going forward, HB 2603 will need to pass the House by this Friday, April 28, 2017 to meet this session’s cross-over deadline for substantive House bills. The Illinois 100^th General Assembly Spring Session is scheduled to end May 31, 2017.  Even if this troubling legislation doesn’t pass this session, it will be carried over to 2018. Holders and practitioners should keep a very close eye on this problematic bill and oppose its enactment. The retroactive applicability of the removal of exemptions is completely inappropriate in the unclaimed property context and nothing more than a money grab by the state.