This blog was updated on January 11, 2023.
Unclaimed property compliance for energy, oil and gas companies can be an especially complex process due to various industry-specific nuances and intricacies. Exclusive property types, such as net revenue interest and royalty payments, title disputes, and operationally intensive state requirements all contribute to the uniqueness of the industry and its unclaimed property challenges.
As energy companies continue to grow and reorganize through mergers, acquisitions, divestitures and spin-offs, staying in compliance with state unclaimed property laws (UP laws) has become more and more onerous. Newly formed companies, that inherit historic liabilities as a result of reorganizations, are often abruptly introduced to the aggressive unclaimed property landscape when attempting to comply voluntarily via on-cycle reporting and voluntary disclosure agreements (VDAs), or involuntarily upon receipt of an unclaimed property audit notice from a state administrator’s office.
Energy companies operating in the upstream sector continue to be a focus of state audits, especially for those states that have shale resources. This is mainly due to the multitude of property types maintained by energy companies, as well as the highly contested positions on mineral proceeds and revenue suspense that are common in the oil and gas industry. It’s also important to note that the midstream and downstream sectors are no longer able to fly under the radar, as more and more of these companies have also found themselves on the receiving end of audit notices and VDA notifications.
Current to Pay analysis
One of the reasons why unclaimed property reporting can be difficult for oil and gas companies is the use of “Current to Pay” statutes, used by more than 30 jurisdictions. These state laws mandate that the first time you report a missing owner, you remit the total net amount you are holding for that owner, as of the date of your remittance, even though the abandonment period may not have run on the entire balance they are owed.
Evaluation of compliance in oil and gas
Like many other industries, the energy industry has seen a significant increase in the number of unclaimed property audits conducted by states and their third-party auditors. The increase can be attributed to filing history, failure to report all property types and recent mergers or acquisitions. A few of the more active audit firms targeting this industry are Discovery Audit Services (DAS), Innovative Advocates Group (IAG) and Treasury Services Group (TSG). Unfortunately, audit firms take different approaches about how they conduct their review, and many auditors are not familiar with the nuances of the industry. The absence of industry knowledge among auditors can prove burdensome for target companies, as holders often find themselves educating the auditor on accounting and operational transactions unique to the oil and gas industry. While these transactions may be commonplace for the everyday energy accounting professional, they can seem like a foreign language to auditors.
An example of a pain-point encountered when auditors are not familiar with the industry is presented in the evaluation of Accounts Receivables – Joint Interest Billings (AR JIB). While the evaluation of AR Credit Balance dispositions is standard in unclaimed property examinations, AR JIB transactions are unique to the oil and gas industry and should not be tested in the same manner as AR Credit Balance dispositions in other industries (i.e., retail). Attempts to test these distinct credits in a similar manner as traditional credit balances could result in the holder undertaking an arduous effort to pull historical records to prove thousands of transactions were applied to accounts of entities among of which there is a joint billing arrangement. Considering there are a number of reasons a JIB credit balance may have been created, the resolution effort can be quite daunting.
Another contested area of oil and gas audits is what should be referred to as the dormancy driver for mineral interest properties. More and more companies have expressed concern with auditors flagging the prior period adjustment date as the dormancy driver. As these transactions are often the result of an occurrence or realization outside of the control of the oil and gas company, the reference to certain dates (i.e., production date) could be misinterpreted as the date the item became due and payable. While many state administrators and auditors have deemed the production date to be the most objective, the realization of the net credit balance may not occur until long after the flagged production date—raising an argument that the accounting date should be considered. Again, this is where industry knowledge, and fairness some would say, is paramount as there would be a need to deviate from audit checklists.
Mergers and acquisitions
There have been a number of high-profile mergers, acquisitions, spin-offs and divestitures over the past few years. Depending on the terms of the agreement, holders can either find themselves relieved of certain unclaimed property liabilities or inheriting the exposure. There are also instances where agreement terms are not as clear, and holders may have retained liabilities existing as of the effective date of the corporate action.
It is important for holders to understand how unclaimed property liabilities will be handled when there is an organizational structure change. State unclaimed property compliance application may require holders to take into consideration legacy transactions and liabilities. Holders may be liable for properties currently on the books, as well as those that may have been voided, canceled or written off prior to the acquisition.
To determine potential inherited unclaimed property exposure, holders should first consider the type of acquisition, whether it is an acquisition of all ownership interest or an asset acquisition. In the event of a stock acquisition, holders are often liable for the acquired entities’ historical compliance, as well as current. Asset acquisitions can prove quite complex, as the terms of the agreement will determine whether the company is responsible for historical transactions or not.
Unclaimed property compliance in the energy sector will continue to present its challenges to the holder community due to its volatile nature. It is important that you develop strategies to potentially reduce unclaimed property exposure, ensure policies and procedures are in place to track potential unclaimed property, comply with the applicable state reporting requirements and take proactive measures to mitigate exposure rather than be reactive in response to an audit notice.
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