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In re November 8

March 10, 1998

IN THE MATTER OF THE NOVEMBER 8, 1996, DETERMINATION OF THE STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, UNCLAIMED PROPERTY OFFICE.


Submitted December 3, 1997

On appeal from the State of New Jersey Department of Treasury, Unclaimed Property

Before: Judges Brochin, Wefing and Braithwaite

The opinion of the court was delivered by: Brochin, J.A.D.

The Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 to -109 (the "Act" or the "New Jersey Act"), establishes a procedure by which intangible property *fn1 that is presumed abandoned is transferred to the State as custodian for the absent owner. *fn2 As part of that procedure, a person holding property subject to the Act that is "presumed abandoned" pursuant to its terms is required to report that property to the State. N.J.S.A. 46:30B-46 to -49. Appellant, the Hilton at Short Hills, appeals from a determination by respondent, Department of the Treasury, that gift certificates are among the kinds of intangible property which are subject to the Act and must be reported to the State when "presumed abandoned."

As part of its operations, Hilton issues gift certificates which are valid for only one year. The gift certificates are redeemable only for services or merchandise. Hilton asked Treasury whether unredeemed gift certificates were covered by the Act and had to be reported to the State. In accordance with advice from the Attorney General, Treasury responded by a letter dated November 8, 1996, asserting its position that gift certificates are subject to the Act.

Treasury contends that Hilton's appeal should be dismissed because the Treasury's November 8, 1996 letter is not final agency action and is therefore not appealable as of right. We disagree. An appeal may be taken as of right "to review final decisions or actions of any state administrative agency or officer." R. 2:2-3(a)(2). Although Treasury relied on an opinion of the Attorney General, the letter expresses Treasury's definitive position with respect to what it declared to be Hilton's obligation to file a report pursuant to the Act. Its ruling therefore constitutes a final agency decision or action and is properly before us for review. Cf. New Jersey Civil Svc. Ass'n v. State, 88 N.J. 605, 612 (1982) (following advice of Attorney General "is tantamount to final agency action").

The New Jersey Senate Judiciary Committee Statement to the bill which became the New Jersey Act states:

This bill is aimed at revising New Jersey escheat law (N.J.S.A. 2A:37-1 et seq.) to conform with the "Uniform Unclaimed Property Act (1981)", promulgated by the National Conference of Commissioners on Uniform State Laws.

[Senate No. 2093, L. 1989, c. 58.]

However, the New Jersey Act deviates from the Uniform Unclaimed Property Act, 8B U.L.A. 567 (1981) ("1981 Model Act") *fn3 by omissions which are of particular significance to the present case. The 1981 Model Act covers "xcept as otherwise provided by this Act, all intangible property." Id. § 2(a), 8B U.L.A. at 595. It defines intangible property in part as including:

credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, and unidentified remittances.

[1981 Model Act § 1(10)(ii), 8B U.L.A. at 590 (emphasis

added).] Section 14 of the 1981 Model Act provides that:

(a) A gift certificate or a credit memo issued in the ordinary course of an issuer's business which remains unclaimed by the owner for more than 5 years after becoming ...


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