Any legal entity who acquires by purchase, merger,
consolidation or other means substantially all of the trade, business or assets
of any employer and continues such business shall be deemed a successor to the
employer from whom the business was acquired, subject to the mandatory and
prohibited successorship provisions in subsections (g) and (h) of O.C.G.A.
Pursuant to Section 303(k) of the federal Social Security Act, as amended by
the SUTA-Dumping Prevention Act of 2004 (P.L.
108-295), the requirements of mandatory and
prohibited transfers of unemployment experience rates of contribution stated
therein shall be applicable effective January 1, 2006 to all transfers of
experience on or after that date. Factors to be considered by the Commissioner
in making a determination of whether a successorship has occurred and whether
successorship treatment is required or prohibited include, but are not limited
to, the following:
successorship is not otherwise required or prohibited, a rebuttable presumption
of successorship shall arise if 90% or more of the predecessor's trade,
business or assets were transferred;
(b) Continuity of workforce;
Continuity of the predecessor's business
1. Whether the same facility is
2. Whether the same customers
3. Whether the business
services the same geographic area;
4. Whether the same trade or business
enterprise is continued;
there are any significant changes in management and supervision of
Continuity of bargaining unit, if any; if there is a bargaining unit, did the
1. Expressly assume the bargaining
2. Expressly reject the
3. Make any change
in the craft designations?
Continue to use the same hiring hall?
5. Hire new employees such that the
bargaining unit no longer represents a majority of the workers?
Whether there occurred a
hiatus in the business activities. The length of the hiatus shall be considered
by the Commissioner.
1. When successorship is
not otherwise required or prohibited, there shall be a rebuttable presumption
in favor of successorship if the hiatus is less than two (2) weeks.
2. When successorship is not otherwise
required or prohibited, there shall be a rebuttable presumption against
successorship if the hiatus is two (2) weeks or more.
(f) Whether the employees of the predecessor
had reason to believe that employment would continue.
Substantially common ownership,
management, or control over the trade or business acquired;
1. Whether there are any significant changes
in ownership of the predecessor and the successor before, during or after the
2. Whether the
predecessor and the successor are owned by any of the same individual(s), any
of the same legal entities, or any of the same legal entities which are owned
by any of the same individual(s);
3. Whether any of the owners of the
predecessor and the successor have familial or financial relationships without
regard to the acquisition;
Whether there are any significant changes in the management and supervision of
employees before and after the acquisition;
5. Whether any officer, major stockholder, or
other person having charge of the affairs of the predecessor, or of the
successor, has meaningful authority, directly or indirectly, by contract or in
fact, regarding the affairs of the other;
6. Whether capital investments in the
predecessor and the successor were supplied by any of the same individual(s) or
7. Whether the
operational financing of the predecessor and the successor are controlled or
directed by any of the same individual(s) or legal entities.
Whether or not the successor
acquired the trade, business or assets of the predecessor solely or primarily
for the purpose of obtaining a lower rate of unemployment tax contributions;
1. Whether the predecessor's business
enterprise was active at the time of the acquisition;
2. The cost of acquiring the predecessor's
trade or business;
3. Whether the
cost of acquiring the predecessor was reasonably related to the market value of
the predecessor's trade or business;
4. Whether the successor actually continued
the business enterprise of the predecessor;
5. How long the successor continued the
business enterprise activity of the predecessor;
6. Whether a substantial number of new
employees were hired by the successor for performance of duties unrelated to
the business enterprise activity conducted by the predecessor before the
7. The potential
unemployment insurance tax savings in contributions costs which favorable
successorship treatment might achieve compared to the cost of the acquiring the
predecessor's trade or business.