by James DeChene

In Matthew Albright’s recent op-ed for the News Journal, which was well written and with which I largely agree, he made the argument that it’s time for Delaware to answer the question of how much government it is willing to have its citizens pay for. Albright’s article echoes a sentiment I’ve made with elected officials—there needs to be an audit of what government should be, what services it wants to provide, and then, how to pay for them.
 
Delaware has done an excellent job of outsourcing its tax and revenue liability onto entities outside the state. From the $1.1 billion it collects from the Corporate Franchise Tax, $400 million in escheat, and about $100 million combined from the Corporate Income Tax and Bank Franchise Tax, that represents an easy-to-calculate roughly 40% of the state’s annual budget. That number doesn’t take into account tourism, other items visitors cross the border for – tax free shopping and low(ish)-taxed cigarettes – or tolls on I-95 and RT1, which pushes our percentage even higher.
 
As Albright outlines in his article, Delaware is one of the top five per capita spenders on government, based on studies from the Brookings Institution and the Kaiser Family Fund. This fact, in spite of Delaware having one of the lowest tax liabilities in the country, has allowed state spending to rise without its citizens feeling the pain. Or so the story goes. The business community, however, has seen its share of costs mount each year, from double digit increases in health care costs, increases in the costs of doing business from additional regulatory burdens imposed by the state, as well as increases in other operating costs such as utilities.
 
The answer to the question of whether an increase in taxes is necessary to cover increases in state government is, in our view, going after the solution the wrong way. Focusing first on what Delaware’s government should look like, and on making government more efficient, should be the answer. Simply saying more money is needed, without combined efforts to eliminate duplicate or wasteful spending is a recipe for the continued trend of businesses relocating, and residents moving across state lines.

​by James DeChene

Although the dog days of summer are upon us, there have been some items of interest the last few weeks.
The decision by PJM to review the Artificial Island project for both scope and cost was welcome news. Faced with political and public relations backlash, along with a pending FERC plan review, it was a wise move by PJM to step back and reevaluate. We are hopeful come February 2017 there will be a better, more fairly equitable, plan put forward.

Conversely in unwelcome news, abandoned property was in the headlines again–this time with the State settling the Temple-Inland case, with further potential ramifications on the horizon. We now wait and see how many companies currently under audit choose not to settle, or how many who have settled under a flawed system, choose to attempt to sue to recoup money given to the state. In addition, there’s the remaining contracted years with Kelmar Associates, the auditing firm behind the huge uptick in revenue these last few years, and the pending case at the Supreme Court brought by 21 states challenging Delaware’s escheat process. The state faces a significant reduction in revenues next year as a result, with no clear path to replace them.
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And finally, Delaware’s Chancery Court was in the news related to TransPerfect and the decision to prepare the company for sale. It’s important to note that the Court, and the corporate bar community, have been the gold standard for corporate law for decades, making Delaware internationally known, and respected, as a result. It’s always news when a controversial case is decided, and the hubbub surrounding this decision is no different. It bears remembering, however, that shareholder disputes are settled all the time.
All in all, a fairly exciting few weeks for summertime.

​by James DeChene

This week the News Journal ran a front page article highlighting a lawsuit brought by the state of Pennsylvania against the state of Delaware citing Delaware improperly collected unclaimed property (also known as escheat) due to be returned to Pennsylvania citizens. As its longstanding policy, Delaware claims it is entitled to collect unclaimed property because the company in question is incorporated in Delaware.

This marks the third in a line of lawsuits brought against Delaware in the last year regarding Delaware’s collection of unclaimed property—currently a $450 million plus revenue item for the state and representing almost 15% of the overall budget. Last year, with input from the State Chamber and its members, a taskforce co-chaired by Sen. Bryan Townsend and Rep. Bryon Short made recommendations to modify how the state handles escheat by clarifying the process and limiting the look-back period.

During the meetings of the DEFAC Taskforce on Revenues, the topic of escheat was highlighted as a volatile source of revenue, meaning not only is it not a reliable long-term source of income, but can suffer adverse effects (in this case due to pending lawsuits) in the near future as well. Currently there is no budget plan in place to account for what would happen should it be ruled the state of Delaware is no longer entitled to collect escheat as a revenue source.
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In the FY16 budget debate there was much controversy and acrimony over revenue and spending that amounted for 1% of the budget, or about $40 million. The Delaware State Chamber of Commerce message on this issue is clear: the state should be prepared for a world in which close to 15% of its budget revenue is substantially lowered, or in the worst case, eliminated.

by James DeChene

Today’s article on Delaware’s corporate reputation is fundamentally a capture of just about all the topics the State Chamber has been advocating and focused on in the past year. From the status, reliability and future of escheat, to recent legislation and decisions involving shareholder lawsuits and the potential fallout from last week’s ruling against Dole, the article lays bare the fact that the corporate community views on Delaware are in flux.

There’s no question that Delaware remains the premier choice for companies to incorporate, and a record setting year for companies incorporating in the state showcases that fact nicely. There is a question being raised nationally, however, of how Delaware is viewed for already established companies that are now involved, for a variety of reasons, but most notably in how predictable the courts are. The State Chamber has gone on record stating that we believe the courts in Delaware, specifically the Court of Chancery, are clearly sensitized to the issues and are demonstrating that they tread carefully on a case by case basis based on the facts of the case.

By James DeChene

This weekend the News Journal reported on a lawsuit brought by Belgian scientists whose stock in their company was escheated ultimately to Delaware resulting in a $12 million dollar loss for each. This is the latest in a series of lawsuits brought against the State of Delaware involving how abandoned property is collected and treated, and follows in a long line of cautions the State Chamber has relayed to the Department of Finance and the Secretary of State’s office.

At issue here is how property, in this case stocks, are classified as abandoned. If an account holder does not make contact with their financial institution every three years, the assets can be considered abandoned and reported to the State for collection. Again, in this case, it appears that the account holders were holding onto the stock long-term, and would have automatically benefited from their company’s merger with Merck, which would have borne a significant financial boon to the pair. Instead, the State paid them the market value of the stock at the time of escheat, which was significantly less than the future value they would have seen.  The lawsuit brought against the State claims that the escheating of funds such as these is unconstitutional under both state and federal law.

As of now, abandoned property represents approximately $550 million, or 14% of Delaware’s operating budget.  Its continued existence faces an uncertain future in light of the mounting litigation against the State of Delaware, with no ready alternative poised to take its place should the program be deemed unconstitutional.

By James DeChene

Transportation Infrastructure Funding

In the aftermath of last year’s failed measure to raise the gas tax to help fund infrastructure projects, the goal this year was for the General Assembly to find $50 million to dedicate to infrastructure funding, with Governor Markell pledging to borrow another $50 million.  After spending months negotiating on how to come up with the required money, the General Assembly passed legislation that will raise just under $24 million by increasing a number of DMV fees as well as the document fee associated with new car sales.  In addition, $5 million of DOT operating expenses was transferred out of the Transportation Trust Fund responsible for funding infrastructure projects.  As part of the negotiated deal, the money will be placed into a “lock box” dedicated for spending on transportation, the threshold for prevailing wage projects was raised, and prevailing wage will not be applied to the $20 million allocated to municipal street aid and the Community Transportation Fund, both of which fund local transportation improvements, such as filling potholes. The State Chamber expressed early support for all three add-ons, and lobbied diligently in support of a larger overall package that would have raised the goal of $50 million, and we hope that further action is taken in 2016 to help overcome the expected $780 million in anticipated shortfall over the next six years in much needed infrastructure projects.

Beginning to Transfer DOT Operating Expenses from Transportation Trust Fund

In 1991, due to the recession, the General Assembly moved a portion of DELDOT operating expenses out of the General Fund and into the Transportation Trust Fund in order to balance the budget without resorting to a tax increase. Over the intervening years, with increases in salaries, retirements, health care expenses and other costs continually rising, the ratio of operating expenses to actual money used to fund projects has increased dramatically, resulting in an estimated $780 million shortfall over the next 6 years for transportation projects. The General Assembly took the first step of transferring $5 million of operating expenses back into the General Fund, and has indicated the goal of both continuing the process, and increasing the amount transferred, in future years.

Abandoned property

Two bills were passed related to how Delaware collects abandoned property, also known as escheat.  Currently representing 14% of the state’s operating budget, this $500+ million revenue stream has come under fire from the business community at large over the last few years, resulting in a taskforce that met over the summer and came up with many of the proposals that were contained in these bills. They include limiting the total number of audits any one outside contractor can be assigned and requires all contracts with such contract auditors to assure that they will not employ or compensate senior officials from the Department of Finance involved with their work for two years after such officials leave state employment. It also directs the Secretary of Finance to prepare and promulgate a detailed manual containing procedural guidelines for the conduct of Delaware unclaimed property examinations and to update its regulations accordingly. The second bill shortens significantly the “look back” period from 1981 to 1991, and going forward will be a rolling 22 year “look back” starting in 2017. The bill also changes how companies can be audited, specifying they must first be offered the opportunity to enter a Voluntary Disclosure Agreement program. The State Chamber was involved in the process from the outset, and is pleased to see sustentative modifications made to the program.

Studies on Revenues and Spending

The Delaware Economic and Financial Advisory Council (DEFAC) was directed by Executive Order to create a taskforce charged with reviewing Delaware’s revenue streams and how to plan for the future. The taskforce issued a lengthy report outlining ways in which to increase revenues to keep up with state spending. During the process, it was lamented that no similar taskforce was created to review state expenditures, and a concession was made by budget writers this year to have Pew Charitable Trusts study how and what the state spends money on in an effort to make government more efficient. That study should be completed in time for next year’s budget process.

Budget

As mentioned above the budget this year was a difficult process for the General Assembly to undertake, and ultimately did little to plan for the next fiscal year. The State Chamber was disappointed that one-time monies stemming from bank mortgage settlements were used to fill budget gaps, that there was no requirement that state employees contribute more to their health insurance costs, and that no serious review of overall state spending was undertaken this year. The State Chamber will continue to review areas in which the state can be more effective and efficient when creating its budget.

No change to the Estate Tax

The Chamber has called for the elimination of the Estate Tax, but no action was taken this year.  A disincentive to retirees, as well as a costly and inefficient program, the state has not seen the tax perform as a revenue stream in any meaningful way, and it puts Delaware at a competitive disadvantage to states like Florida.

Minimum Wage

A bill expected to be introduced next year will call for an increase in the minimum wage.  This comes on the heels of a taskforce created to study low wage workers and the impact an increase in the minimum wage would have on the economy, on workers and on businesses. With impacts being felt in cities like Seattle and Los Angeles, both of which saw dramatic increases in minimum wages—up to $15 an hour, the General Assembly should look to those examples as a cautionary tale before considering a mandated wage hike, and instead look to how businesses like Walmart and Target have already raised their minimum wages to above the Federal level as the economy has improved.

Adjustments to PIT, Corporate Franchise Tax and Gross Receipts Tax

Already on the table is a proposal to add two top tiers of personal income tax levels as well as a proposal to increase corporate franchise tax thresholds. These come on top of earlier proposals to cut corporate income tax rates, and increase the Gross receipts tax. The State Chamber is on record urging the General Assembly not to simply raise taxes to close budget holes, but to focus first and foremost on areas in state government that can be trimmed or eliminated.

By James DeChene

As the sun rose on July 1st, the first half of the 148th General Assembly Session drew to a close. The first six months of 2015 saw legislative action on a variety of issues, though in terms of highlights, discussion and action education reform was the “it” topic. Bills ranged from the controversial “opt-out” bill, to starting the process to change how and where children in Wilmington are educated, to schools evaluating the amount of standardized testing offered each year. Thrown into the mix were broader discussions on transportation infrastructure spending, modifying the state’s abandoned property, or escheat collection, and looming over everything is the pending budget crisis expected next year. As the dust settles, it’s a good time to review a few key pieces of legislation that passed this year that will impact the business community.

Transportation Infrastructure Funding
In the aftermath of last year’s failed measure to raise the gas tax to help fund infrastructure projects, the goal this year was for the General Assembly to find $50 million to dedicate to infrastructure funding, with Governor Markell pledging to borrow another $50 million. After spending months negotiating on how to come up with the required money, the General Assembly passed legislation that will raise just under $24 million by raising a number of DMV fees as well as the document fee associated with new car sales. In addition, $5 million of DOT operating expenses was transferred out of the Transportation Trust Fund responsible for funding infrastructure projects. As part of the negotiated deal, the money will be placed into a “lock box” dedicated for spending on transportation, the threshold for prevailing wage projects was raised, and prevailing wage will not be applied to the $20 million allocated to municipal street aid and the Community Transportation Fund, both of which fund local transportation improvements, such as filling potholes. The State Chamber expressed early support for all three add-ons, and lobbied diligently in support of a larger overall package that would have raised the goal of $50 million, and we hope that further action is taken in 2016 to help overcome the expected $780 million in anticipated shortfall over the next six years in much needed infrastructure projects.

Abandoned property
Two bills were passed related to how Delaware collects abandoned property, also known as escheat. Currently representing 14% of the state’s operating budget, this $500+ million revenue stream has come under fire from the business community at large over the last few years, resulting in a taskforce that met over the summer and came up with many of the proposals that were contained in these bills. They include limiting the total number of audits any one outside contractor can be assigned and requires all contracts with such contract auditors to assure that they will not employ or compensate senior officials from the Department of Finance involved with their work for two years after such officials leave state employment. It also directs the Secretary of Finance to prepare and promulgate a detailed manual containing procedural guidelines for the conduct of Delaware unclaimed property examinations and to update its regulations accordingly. The second bill shortens significantly the “look back” period from 1981 to 1991, and going forward will be a rolling 22 year “look back” starting in 2017. The bill also changes how companies can be audited, specifying they must first be offered the opportunity to enter a Voluntary Disclosure Agreement program. The State Chamber was involved in the process from the outset, and is pleased to see sustentative modifications made to the program.

Privacy Policy
Based on California statute, this technical and complex bill proposed by the Attorney General’s office, has the following impact impact to the Delaware business community will be that for any business that operates a website that collects personally identifiable information, the company must post prominently on their website a privacy policy outlining what information is collected and how it is handled. The Attorney General’s office has pledged to draft the policy statement, with the input of the State Chamber and other business groups, and provide it for free so that it both meets the requirements, and does not force businesses to spend upwards of $5000 to have language drafted by legal counsel.

Budget
As mentioned above the budget this year was a difficult process for the General Assembly to undertake, and ultimately did nothing to plan for the next fiscal year. The State Chamber was disappointed that one-time monies stemming from bank mortgage settlements were used to fill budget gaps, that there was no included requirement that state employees contribute more to their health insurance costs, and that no serious review of overall state spending was undertaken this year. The State Chamber will continue to review areas in which the state can be more effective and efficient when creating its budget.

Next Year
According to the June Delaware Economic and Financial Advisory Council report, the state faces upwards of a $160 million budget shortfall for FY2017. What this means for the business community is that the needed money will come from either agency and program cuts or through increases in taxes, or, more likely, a combination of both. Already on the table is a proposal to add two top tiers of personal income tax levels as well as a proposal to increase corporate franchise tax thresholds. These come on top of earlier proposals to cut corporate income tax rates, and increase the Gross receipts tax. The State Chamber is on record urging the General Assembly not to simply raise taxes to close budget holes, but to focus first and foremost on areas in state government that can be trimmed or eliminated. The state has contracted with Pew Charitable Trusts to review the budget process and other groups have commissioned their own studies to find ways to make Delaware leaner. Next year will be a test of how well our elected officials lead. It’s also important to remember that next year is an election year, and that simple fact always throws a number of monkey wrenches into the process. The State Chamber will be on hand as the voice of Delaware business to ensure our elected officials know how their decisions impact the future of Delaware business.

by James DeChene

The General Assembly is currently enjoying a two week break for Easter, and is due back in Dover on April 21st. On the hearing docket that week is a bill dealing with “Chemical Concerns and Flame Retardants” that has raised concerns from the Chemical industry, and there are hearings scheduled for both the Senate Banking and Business Committee and House Economic Development/Banking/Insurance/Commerce Committee, but no agenda has been set. Budget issues are still being sorted out, and other business related legislative activity expected this spring includes a proposal to change the corporate structure of businesses related to fee-shifting, a second bill dealing with escheat, along with another slate of education related bills. April and May will prove to be busy, all gearing up for June madness.  More to come.