Ala. Admin. Code r. 480-4-2-.23

Current through Register Vol. 43, No. 1, October 31, 2024

Section 480-4-2-.23 - Application for Protest and Review of Tax Rate, Liability, Benefit Charge Statements, Assessment and Misclassified Worker Status

(1) Applications for Review and Protest. All applications for review of determinations regarding the taxing provisions and all protests as provided for herein must be in writing, signed by the protesting party, or their authorized power of attorney and contain a short and concise statement of the facts and grounds upon which it is believed that the action to which review is sought or protested is in error. Application for review and protest should be filed with Tax Operations, Department of Labor Building, Montgomery, AL 36131 marked according to the type of protest. For liability concerns, including successorship determinations, to the attention of the Status Unit; for tax rate notice and benefit charge statement concerns to the attention of Experience Rating; and for misclassified worker concerns to the attention of Chief of Tax. Such application of protest must be received from the employer within the time period prescribed by statute or rules.

(2) Burden of Proof. The original determination of the Agency shall be considered prima facie correct. The burden of proof shall be on the protesting party to establish by evidence that the determination of the Agency was in error.

(3) Determination of liability of the Employer. Employing units, whether newly liable or a successor to another already liable employer, will have their liability under the Alabama Unemployment Compensation Law determined promptly upon receipt of all the required information prescribed by statute or these rules. The employing unit will be notified of the determination of their liability by regular mail to the employer's last known address of record. If the employer disagrees with the final determination of liability, an administrative review of the facts involved in the liability decision will be conducted at the written request of the employer. The request shall be made within fifteen (15) days of the date the notice of determination is mailed and shall be directed to Tax Operations, Status Unit. Should the employer fail to meet the fifteen (15) day deadline, the opportunity to protest liability is expired and the determination becomes final.

With respect to newly liable employers only, if the employer does not agree with the determination of the review, the employer will be given an opportunity for a Circuit Court Appeal through the tax rate notice. In the case of an employer who is not yet tax rated, the opportunity will be extended to them via the US Postal Service to the last known address of record or by electronic mail last provided by the employer or employer's representative. The liability determination shall be prima facie correct, and the burden shall be on the employer to show that such liability determination is not correct.

For those employers who become liable due to the acquirement of another company (successorship), if the employer is not satisfied with the determination of that review, the employer will be given an opportunity for an appeal to Circuit Court through the tax rate notice, US Postal Service or electronic mail. The liability determination shall be prima facie correct, and the burden shall be on the employer to show that such liability determination is not correct.

If the employer's liability date changes, it may be necessary to update the already liable unemployment tax account. This will not afford the employer another opportunity in which to protest their status as a liable employer; however, they may protest the date of employment liability only by requesting an administrative review.

(4) Application for Review of Benefit Charge Statements or Reimbursable Costs.

(a) An employer may request a review of the quarterly benefit wage statement within thirty (30) days from the date of notification as sent via internet or regular mail to the employer's last known address. Otherwise, the statement will be conclusive and final upon the employer for all purposes and for all proceedings whatsoever.

(b) Application for review will be subject to the provisions of rule 480-4-2-.23(2).

(c) The review process of the benefit wage charge statement shall be conducted pursuant to the Code of Ala. 1975, § 25-4-54(c)(4) of the Alabama Unemployment Compensation Law.

(5) Application for Review of a Tax Rate.

(a) An employer may apply for a review of the computation of his/her benefit wage percentage and his contribution rate as fixed by his benefit wage percentage provided such application is filed as subject to the provisions in rule 408-4-2.23(2) and received within thirty (30) days of the date of notification on the tax rate notice. This protest will only apply to the numbers used to provide the tax rate itself. This will not be another opportunity in which to protest the employer's liability as a new or successor employer. For those employers who may receive a paper copy of their tax rate notice (as opposed to a downloadable version) the same provisions of rule 408-4-2.23(2) apply. The paper tax rate notice will be mailed via the US postal service to the last known address of record provided by the employer or employer's representative. The employer may request an administrative review within thirty (30) days of the date of notification/mail date on the tax rate notice. As above in (5)(a) the protest will only apply to the numbers used to provide the tax rate itself.

(b) The Secretary, after an administrative review, will issue his/her ruling promptly. Any employer may appeal such ruling within thirty (30) days from the date of the Secretary's ruling to the Circuit Court of any county as provided in Code of Ala. 1975, § 25-4-54(h) of the Alabama Unemployment Compensation Law.

(6) Review and protests of assessment

(a) In cases where an employer fails to comply with the taxing and reporting provisions of the Law and rules, the Secretary may initiate assessment proceedings against such employer pursuant to Code of Ala. 1975, § 25-4-134

(b) Whenever, the Secretary shall make an assessment against an employer, proper notice shall be given to the employer by registered or certified mail setting forth the amount of the assessment, purpose of the assessment and time and place for hearing, if applicable. This notice will be mailed via US Postal Service to the last known address of record provided by the employer or employer's representative.

(c) If the employer fails to make and file reports with this Department, the Secretary may issue a written notice by registered or certified mail to the employer's last known address of record provided by the employer or employer's representative. Within fifteen (15) days from the date of notice, such employer fails or refuses to make a report(s), the Secretary shall make a report(s) as he/she may reasonably obtain, and shall issue an assessment upon contributions and penalties due thereon and interest at the rate of one percent per month, or fraction thereof, from the date such contributions were due. Once this time has passed and the employer has not voluntarily provided the reports, the Department will make an assessment of the amount due and send by certified mail to the employer a notice of this final assessment. The employer must request an administrative hearing within fifteen (15) days and show cause as to why the assessment should not be final. The employer may at that time provide correct wage information for the quarters due. This hearing is not a formal hearing but is a time in which to provide the actual payroll records. This assessment shall be final unless an appeal is made within thirty days of the date of the final assessment pursuant to Code of Ala. 1975, § 25-4-134(3) b. This appeal pertains only to those numbers used for the assessment and will not be considered an appeal to the liability of an employer or independent contractor status of employees.

(d) Employer must pay the assessment so made before the appeal is due or post a supersedes bond.

(e) If the employer fails to make full payment on reports which have been filed with this Department within thirty (30) days of the date due, the Secretary may assess the correct amount of contributions, penalties due thereon and interest at the rate of one percent per month, or fraction thereof, from date such contributions were due. This assessment shall be final unless an appeal is made within thirty days of the date of the final assessment pursuant to Code of Ala. 1975, § 25-4-134(3) b. This appeal pertains only to those numbers used for the assessment and will not be considered an appeal to liability of the employer or independent contractor status of employees. There is no opportunity for an administrative hearing and the employer must appeal to Circuit Court within Montgomery County, the county where the employer resides, or his/her business is located.

(f) Employer must pay the assessment so made before the appeal is due or post a supersedes bond.

(g) If the employer makes a report(s) with this Department found to be incorrect, incomplete or insufficient, the Secretary may issue a written notice by registered or certified mail to his/her last known address of record. If within fifteen (15) days from the date of notice, such employer fails or refuses to make such report(s) complete, correct or sufficient, the Secretary shall make a report(s) as he/she may reasonably obtain, and shall without further notice or hearing assess contributions and penalties due thereon and interest at the rate of one percent per month, or fraction thereof, from the date such contributions were due. This assessment shall be final unless an appeal is made within thirty days of the date of the final assessment pursuant to Code of Ala. 1975, § 25-4-134(3) b. This appeal pertains only to those numbers used for the assessment and will not be considered an appeal to the liability of an employer or independent contractor status of employees. There is no opportunity for an administrative hearing and the employer must appeal to Circuit Court within Montgomery County, the county where the employer resides, or his/her business is located.

(h) Employer must pay the assessment so made before the appeal is due or post a supersedes bond.

(7) Review of the Determination of Employee/independent contractor Status.

The employing unit will be notified of the determination that the previously unreported workers have been misclassified and have been determined to be employees by this Department. This letter will be sent by US Postal Service to the last known address of record or by electronic mail last provided by the employer or employer's representative.

(a) If the employer disagrees with the final determination, an administrative review of the facts involved in the decision will be conducted at the written request of the employer. The request shall be made within thirty (30) days of notice of determination mail the date the notice of determination is mailed and shall be directed to the attention of Tax Operations. This appeal request should be made by a corporate officer or duly authorized power of attorney.

(b) This appeal will be subject to the provisions of rule 480-4-2-.23(2). This appeal will apply only to the status of misclassified workers found to be employees by this Department.

(c) Upon the determination from the Administrative Hearing Officer, should the employer be dissatisfied with the outcome of the decision, the employer may appeal within thirty (30) days of the date affixed on the decision to Circuit Court within Montgomery County, the county where the employer resides, or his/her business is located.

(d) Employer must pay the assessment so made before the appeal is due or post a supersedes bond.

Ala. Admin. Code r. 480-4-2-.23

September 30, 1982. Amended: Filed January 2, 2014; effective February 6, 2014.

Amended by Alabama Administrative Monthly Volume XXXVII, Issue No. 11, August 30, 2019, eff. 9/27/2019.

Authors: Jo Doyal, Arthur F. Ray, II

Statutory Authority:Code of Ala. 1975, 25-2-7, 25-2-8, 25-4-111