Ga. Comp. R. & Regs. R. 300-2-5-.01 - Employer Tax Liability Appeals
(1) For the
purposes of this rule, "tax liability" shall mean the status of an employing
unit as a liable or not liable employer. It shall not mean any specific sum
that has been assessed or specific tax rate that has been assigned to an
employing unit .
(2) Determination
of liability.
(a) Liability for unemployment
insurance taxes shall be based upon the definitions found in the Employment
Security Law, primarily to include "employing unit ", "employer", "employment ",
and "wages". Definitions of these same terms from the common law or other state
or federal laws shall not be controlling. Likewise, neither the language of a
contract, such as an independent contractor agreement, nor a party's belief
about the status of a worker shall be controlling. A determination of
unemployment insurance tax liability shall be based on the true underlying
nature of the relationship between a worker and an entity.
(b) Any entity ("employing unit ") that
remunerates any individual for the performance of personal services in this
state shall cooperate with the department for the purposes of determining
unemployment insurance tax liability.
1. It
shall be the duty of any such employing unit to ensure it is either compliant
with the unemployment insurance reporting and tax requirements of the law and
these rules , or that it is entitled to a specific statutory exemption from such
requirements.
2. In any
administrative proceeding before the department or Office of State
Administrative Hearings, an employing unit shall bear the burden of proof to
show it is entitled to an exemption from the reporting and tax requirements of
the law and these rules .
3. If an
individual is remunerated by a different entity than the one for whom such
personal services are actually performed, the entity remunerating the
individual shall have the duty of ensuring compliance with the reporting and
tax requirements of the law and these rules . Such entity shall:
(i) Cooperate in disclosing to the
department :
(I) The identity of any entity for
whom the individual performed the personal services at issue; and
(II) The frequency and nature of the
relationship, including any written agreements governing the payment of the
wages at issue and any commonality of ownership with any such entity;
and
(ii) Have the burden
of proof to show the services are exempt from unemployment insurance taxes, or,
if such services are not exempt, to show liability for the services should be
assigned to another entity, whether through the agency provisions of O.C.G.A.
Section 34-8-34 or otherwise.
4. Failure to cooperate with the
department or to meet the burden of proof may result in liability being
assigned to the entity remunerating the individual.
(c) The determination as to the unemployment
insurance tax liability of any employing unit shall be based upon the
information contained in a properly executed Form DOL-1 or Form DOL-1A,
"Employer Status Report", or Form DOL-1G, "Registration of Governmental
Organizations", together with other available information and reports of
investigations.
1. For the purpose of
determining liability of any employing unit as defined in O.C.G.A. Section
34-8-33,"week" means a period of
seven (7) consecutive calendar days beginning with the first day of the
calendar week and ending at midnight on the last day of such calendar week
during a calendar year. If any such week includes December 31 and January 1,
the days up to January 1 shall be deemed one calendar week and the days
beginning January 1 another such week.
2. The employing unit shall be promptly
notified of the determination and the reasons thereof.
(3) Appeals from a determination
of tax liability.
(a) Any interested party who
claims to be aggrieved by a determination of unemployment insurance tax
liability may protest the findings contained in the determination and such
protest, in writing, shall be deemed as an appeal from such determination.
1. In addition to appeals from a
determination of tax liability, the law or these rules may provide the right to
an administrative appeal hearing to protest a specific unemployment insurance
tax related determination made by the department . When such a right has been
specifically provided in the law or these rules , the protest shall be handled
in accordance with the procedures set forth in this rule, unless the law or
rules provide that the Commissioner shall preside at the hearing and be the
ultimate decision maker.
2. There
shall be no right to an administrative appeal hearing to protest any
unemployment insurance tax determination unless such a right is specifically
provided in the law or these rules .
3. Neither the Unemployment Insurance Appeals
Tribunal nor Board of Review shall have jurisdiction over an appeal of an
unemployment insurance tax liability determination.
4. The filing of an appeal shall not stop the
accrual of penalty or interest on delinquent reports and taxes.
(b) The protest shall set forth
the specific grounds for the protest and shall be filed with the unit in the
department which released the determination within fifteen (15) days of the
date of mailing of the tax liability determination. An appeal shall be
considered timely filed with the department if it is postmarked or hand
delivered within fifteen days of the mailing date of the determination of
liability. For purpose of these rules , a postal meter mark will not be
considered to be a postmark. Determinations which are appealed via alternative
means of delivery such as electronically, private courier, facsimile
transmittal, or otherwise in parcels lacking physical evidence of delivery by
the U.S. Postal Service shall be deemed filed the date the appeal is received
by the department pursuant to Official Code of Georgia Annotated Section
50-13-23.
(c) The department shall promptly compile
sufficient copies of the record and forward them with the appeal to the Office
of State Administrative Hearings (OSAH) where it will be processed in
accordance with the Georgia Administrative Procedures Act (O.C.G.A. Section
50-13-1, et seq.).
(d) In preparation for a hearing before the
Office of State Administrative Hearings, any interested party shall be allowed
to examine or review relevant confidential department records in addition to
those filed with the record and appeal to the Office of State Administrative
Hearings. A written request for such examination or review must be received by
the department reasonably in advance of the scheduled hearing. The request must
be consistent with the disclosure provisions of the Employment Security Law at
O.C.G.A. Section
34-8-120, et seq.
(4) Appeals from the employer tax
liability determination rendered by the Administrative Law Judge shall be made
directly to Superior Court and not to the board of review. The decision of the
Administrative Law Judge shall become final and binding thirty (30) days from
the date the Administrative Law Judge's final order is dated and filed with the
Office of State Administrative Hearings unless, prior to the expiration of the
thirty (30) day period, a petition for judicial review is filed with the
Superior Court as provided by Official Code of Georgia Annotated Section
50-13-19. No stay shall operate
after the expiration of the thirty (30) day appeal rights to Superior Court.
The Commissioner shall be a party at interest to such decision.
(a) A party at interest who has filed an
appeal for judicial review to the Superior Court, may, upon request, be
supplied information from the records of the department to the extent necessary
for the proper presentation of an appeal to the Superior Court. The request
must be consistent with the confidentiality provisions of O.C.G.A. Section
34-8-120, et seq.
(b) Service. A petition for judicial review
to Superior Court must join the Commissioner as a party at interest in the
action. Timely service may be perfected upon the Commissioner either personally
or by mail at the Georgia Department of Labor, 148 International Boulevard,
N.E., Atlanta, Georgia 30303-1751. Service by any other means shall not be
sufficient.
Notes
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