Non-acquiescence: Employer tax cases

First, some apologies for the title to this post. Non-acquiescence is a ten-dollar word for disagree. Essentially, the Department has the ability per Wis. Stat. § 108.10(7)(b) to declare publicly that it disagrees with a decision of the Labor and Industry Review Commission but will not appeal that decision into the courts. The Department has this option because an appeal of a decision into the courts faces the risk of the Commission’s decision being affirmed. That affirmation would then turn that case into a precedent the Department would be required to follow.

NOTE: The Department is supposed to follow Commission decisions as precedent. This non-acquiescence process provides a mechanism for the Department to declare officially that it will NOT follow a Commission decision as precedent.

Second, from May 2018 to January 2019, the Department began regularly issuing notices of non-acquiescence in employer tax cases where personal liability for those taxes were at issue. In all of these cases, the Commission found that personal liability was NOT justified largely because the individuals being pursued were not actually the owner/controlling person of the employing entity. These fact specific inquiries, however, somehow led the Department to believe that the Commission was not applying unemployment law in the way the Department wanted these cases decided. Here are the cases:

In almost all of these decisions, the Commission found that there was NO personal liability for unpaid employer unemployment taxes because the person targeted in these cases essentially did not qualify as the owner or manager responsible for those unemployment taxes.

NOTE: Keep in mind that corporate protection and limited liability does NOT apply to unpaid unemployment taxes. See, e.g., EOG Environmental Inc., UI Hearing No. S1100346MW (27 Aug. 2013) (the Department filed a notice of non-acquiescence in this case as well) and Henry Warner, UI Hearing No. S9100679MW (16 July 1993) for excellent descriptions of the personal liability issues that attach to individuals regardless of incorporation when unemployment taxes go unpaid.

In other words, the Department is pursuing in these cases additional liability for unpaid unemployment taxes. The Department is arguing that the named person is the manager or owner responsible for paying unemployment taxes and that he or she failed to meet that responsibility. The Corley case provides an excellent example of what is going on with these cases (I spoke with the attorney who represented the defendant individual in that case).

In Corley, a father had sold his trucking business decades before to his son who took over day-to-day management of the operation, The father remained a figurehead director of the company, however, for the sake of assuring customers and others that the father’s experience and judgment were available to the son. The father had little to any active involvement with management by 2008 or so but continued to staff office and personnel matters as a favor to his son.

With the great recession, the company came on hard times and went under by 2011 or 2012. During the course of going under, unemployment taxes went unpaid. Collection efforts by the Department ensued against the son (not mentioned in the Commission’s decision, as the collection efforts at issue here were against the father).

Apparently, those collection efforts were not going as well as the Department wanted, so it targeted the father, who at the time was working as a trucker again and living out of his tractor-trailer cab because of the economic losses and debts he had incurred from the recession. This targeting of the father for additional revenue/collection explains why the record is so spotty about the father’s actual role and involvement in the company’s unpaid unemployment taxes and what was allegedly owed by the father.

The Commission in its decision essentially finds that there is no proof of any unpaid debts for which the father was responsible. This lack of factual evidence in the record about the father’s personal liability, however, is a principle the Department does not want to accept as a limit on personal liability. So, the Department filed its notice of non-acquiescence in this matter. The Department does not want “actual evidence” to serve as a limit on its claims of personal liability. On that basis, this declaration by the Department is shocking.

So, in this light this flurry of non-acquiescence declarations by the Department signals a state agency targeting small employers and the individuals connected to them in any way possible as sources for continued and never-ending debt collection. Claimants in concealment cases are not the only folks who have experienced the unforgiving and relentless push by the Department to collect no matter what and to collect even and ever again simply because the Department asserts that monies are owed. Should another recession occur, there are many, many employers who will feel this bite from the Department and face the unending and pervasive debt collection the Department wants.

One thought on “Non-acquiescence: Employer tax cases

  1. Pingback: Non-acquiescence: Employer aiding and abetting | Wisconsin Unemployment

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