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Official Opinion 93-2

Official Opinion 93-2

January 20, 1993
To: 

Commissioner

Department of Revenue

Re: 

Intangible unclaimed property held in the ordinary course of the holder's business is subject to the Disposition of Unclaimed Property Act enacted by Ga. L. 1990, p. 1506, as amended, and to the Disposition of Unclaimed Property Act enacted by Ga. L. 1972, p. 762, as amended.

This responds to your question as to whether intangible unclaimed property held in the ordinary course of the holder's business ("business property") is subject to the abandonment provisions of the Disposition of Unclaimed Property Act enacted by Ga. L. 1990, p. 1506, as amended, O.C.G.A. § 44-12-190 et seq. (Supp. 1992) (the "1990 Act").  In light of 1973 Op. Att'y Gen. 73-11 and 1981 Op. Att'y Gen. 81-16, you also have asked if the Disposition of Unclaimed Property Act enacted by Ga. L. 1972, p. 762, as amended, O.C.G.A. § 44-12-190 et seq. (1982) (the "1972 Act") covers business property since some businesses may be holding unclaimed property which is subject to the [*2]  abandonment provisions of the 1972 Act.

The 1990 Act, which is modeled after the 1981 Uniform Unclaimed Property Act (the "1981 Uniform Act"), should "be so construed to effectuate its general purpose to make uniform the law of those states which enact it." See O.C.G.A. § 44-12-191 (Supp. 1992).  The 1972 Act is modeled after the provisions of the 1954 Uniform Unclaimed Property Act (the "1954 Uniform Act") and also should be construed uniformly.  See O.C.G.A. § 44-12-191 (1982).

Both the 1990 Act and the 1972 Act have a "catch-all" or "omnibus" section.  The 1990 Act provides at O.C.G.A. § 44-12-193 (Supp. 1992), that "intangible property, including any income or increment thereon, less any lawful charges, that is held, issued, or owing in the ordinary course of the holder's business and has remained unclaimed by the owner for more than seven years after it became payable or distributable is presumed abandoned." Section 10 of the 1972 Act, O.C.G.A. § 44-12-200 (1982), provides that all unclaimed intangible personal property not otherwise covered by the 1972 Act is presumed abandoned after the requisite period of time if the property is held or owing in the ordinary  [*3]  course of the holder's business.

In Op. Att'y Gen. 73-11, the Attorney General considered the question of whether checks written by a bank in payment of operating expenses or any liability other than deposit liability, and outstanding for 15 years, are considered to be unclaimed property under Section 3(c) of the 1972 Act [O.C.G.A. § 44-12-193 (1982)].  Section 3(c) of the 1972 Act concerns sums payable on checks certified in Georgia or on written instruments issued in Georgia on which a bank or financial institution is directly liable.

The Attorney General recognized that the question was "difficult" and "one not easily answered by mere reference to the language of the (1972) Act." The 1973 opinion interpreted Section 3(c) of the 1972 Act narrowly by "look(ing) at the actual relationship involved and restrict(ing) [Section 3(c)] to those instances expressly set out in this Section or the Act, or instances closely akin to the relationships expressed in this Section, that is, certificates of deposit, drafts or travelers checks." In Op. Att'y Gen. 81-16, the Attorney General reaffirmed the interpretation of Op. Att'y Gen. 73-11 inasmuch as no legislative action had been taken to [*4]  amend the 1972 Act "in this area" since the 1973 opinion.  Neither opinion specifically dealt with the omnibus section of the 1972 Act [O.C.G.A. § 44-12-200 (1982)].

The comment to the omnibus section (Section 9) of the 1954 Uniform Act provides that this section "is the omnibus section covering all other intangible personal property not otherwise covered by the more specific provisions of the Act." The comment includes an illustration of the "wide variety of items" embraced under this section such as "money, . . . deposits, interest, dividends, income, . . . credit balances on paid wages, security deposits, (and) refunds."

The omnibus section is intended to have a very broad coverage including those types of property which are covered in other sections.  See Travelers Express Co., Inc. v. State of Minnesota, 506 F. Supp. 1379, 1386 (D. Minn. 1981), aff'd, 664 F.2d 691 (8th Cir. 1981), cert. dismissed, 456 U.S. 920 (1982) (the omnibus section is "designed to cover a very wide range of intangible personal property"), and Boswell v. Citronelle-Mobile Gathering, Inc., 294 So.2d 428, 431 (Ala. 1974) (the "clear and unambiguous wording" of the omnibus section applies [*5]  to all tangible and intangible property not otherwise covered).  See also People Ex Rel. Callahan v. Marshall  Field & Company, 404 N.E.2d 368 (Ill. App. 1980) and Louisiana Hospital Service, Inc. v. Collector of Revenue, 293 So.2d 663 (La. App. 1974). This broad interpretation is consistent with the Acts' objective of "permitting all citizens to enjoy the benefit of unclaimed property, rather than only the fortuitous holder." Travelers Express Co., Inc., supra. Therefore, in light of the broad scope of the omnibus section and the uniform nature of the interpretation of the 1990 Act and the 1972 Act, the omnibus section of each respective Act includes intangible property held or owing in the ordinary course of the holder's business.  Op. Att'y Gen. 73-11 and Op. Att'y Gen. 81-15 are withdrawn to the extent each such opinion is inconsistent with this opinion.

Prepared by:

DANIEL M. FORMBY

Senior Assistant Attorney General