IC 22-4-32
Chapter 32. Employer Liability, Rights, and Remedies
IC 22-4-32-1 Disputes; hearings
Sec. 1. A liability administrative law judge shall hear all matters
pertaining to:
(1) the assessment of contributions, penalties, and interest;
(2) which accounts, if any, benefits paid, or finally ordered to
be paid, should be charged;
(3) successorships, and related matters arising therefrom,
including but not limited to:
(A) the transfer of accounts;
(B) the determination of rates of contribution; and
(C) determinations under IC 22-4-11.5; and
(4) claims for refunds of contributions, skills 2016 training
assessments, or adjustments thereon in connection with
subsequent contribution payments and skills 2016 training
assessments;
for which an employing unit has timely filed a protest under section
4 of this chapter. (Formerly: Acts 1947, c.208, s.3301.) As amended by P.L.135-1990,
SEC.23; P.L.290-2001, SEC.25; P.L.108-2006, SEC.54.
IC 22-4-32-2 Disputes; subpoenas; interlocutory orders
Sec. 2. In addition to all other powers conferred upon the liability
administrative law judge in accordance with this article and the rules
issued pursuant to this article, the liability administrative law judge
shall have the power to:
(1) administer oaths and affirmations;
(2) issue such subpoenas as are provided for by IC 22-4-17-7;
(3) rule upon offers of proof and receive relevant oral or
documentary evidence;
(4) take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(5) regulate the course of a hearing and the conduct of the
parties;
(6) hold informal prehearing conferences for the settlement or
simplification of the issues by consent of the parties;
(7) examine or cause to have examined by order such parts of
the books and records of the parties to a proceeding as relate to
the questions in dispute;
(8) dispose of procedural motions, requests for adjustment;
(9) continue any hearing upon his own motion, or upon
application of any interested party for good cause shown; and
(10) make such interlocutory and final orders as are necessary
for the resolving or determination of the issues arising in the
cause. (Formerly: Acts 1947, c.208, s.3302.) As amended by P.L.144-1986,
SEC.138; P.L.135-1990, SEC.24.
IC 22-4-32-3 Disputes; rules of practice and procedure; qualifications of person
representing employer
Sec. 3. The proceedings before a liability administrative law judge
shall be conducted in accordance with such rules of practice and
procedure as the department may adopt under its rulemaking
authority under IC 22-4-18-1. Any person representing any interested
party in the prosecution or defense of any proceedings before a
liability administrative law judge must be admitted to practice law in
the courts of the state of Indiana, except that persons admitted to
practice before the courts of other states may on special order be
permitted to appear in any proceeding before the liability
administrative law judge. This section shall not be construed to
prohibit an interested party from electing to be heard in his own
cause without counsel. (Formerly: Acts 1947, c.208, s.3303.) As amended by P.L.144-1986,
SEC.139; P.L.135-1990, SEC.25; P.L.108-2006, SEC.55.
IC 22-4-32-4 Disputes; protest; time limit
Sec. 4. An employing unit shall have fifteen (15) calendar days,
beginning on the date an initial determination is mailed to the
employing unit, within which to protest in writing an initial
determination of the department with respect to:
(1) the assessments of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) merit rate calculations;
(4) successorships;
(5) the denial of claims for refunds and adjustments; and
(6) a determination under IC 22-4-11.5. (Formerly: Acts 1947, c.208, s.3304.) As amended by P.L.18-1987,
SEC.86; P.L.21-1995, SEC.120; P.L.108-2006, SEC.56.
IC 22-4-32-5 Disputes; protest; hearing
Sec. 5. Upon receipt of such protest in writing, the commissioner
promptly shall refer the written protest to the liability administrative
law judge who shall set a date for a hearing before the liability
administrative law judge and notify the interested parties thereof by
registered mail. Unless such written protest is withdrawn, the
liability administrative law judge, after affording the parties a
reasonable opportunity for a fair hearing, shall make findings and
conclusions, and, on the basis thereof, affirm, modify, or reverse the
initial determination of the board. (Formerly: Acts 1947, c.208, s.3305.) As amended by P.L.18-1987,
SEC.87; P.L.135-1990, SEC.26; P.L.21-1995, SEC.121.
IC 22-4-32-6 Disputes; parties
Sec. 6. Any interested party to the dispute shall mean and include
the protesting employing unit, the commissioner, and any person
appearing to the liability administrative law judge to be necessary or
indispensable to the determination of the issues involved in the
hearing. (Formerly: Acts 1947, c.208, s.3306; Acts 1957, c.299, s.11.) As
amended by P.L.18-1987, SEC.88; P.L.135-1990, SEC.27;
P.L.21-1995, SEC.122.
IC 22-4-32-7 Disputes; finding and decision; notice of appeal
Sec. 7. After the hearing the liability administrative law judge
shall as soon as practicable notify the interested parties in writing of
the finding and decision of the liability administrative law judge,
which shall become final thirty (30) days thereafter in the absence of
the filing of a notice of appeal as provided in this chapter. (Formerly: Acts 1947, c.208, s.3307.) As amended by P.L.18-1987,
SEC.89; P.L.135-1990, SEC.28; P.L.108-2006, SEC.57.
IC 22-4-32-8 Disputes; appeals; notice
Sec. 8. A notice of appeal shall be served on the adverse party at
any time before the decision of the liability administrative law judge
becomes final, and shall stay the finality of the decision for thirty
(30) days from the service of such notice. If such appeal is perfected,
further proceedings shall be stayed pending the final determination
of said appeal. If an appeal from the decision of the liability
administrative law judge is not perfected within the time provided for
by this article, no action or proceeding shall be further stayed. (Formerly: Acts 1947, c.208, s.3308; Acts 1951, c.295, s.19.) As
amended by P.L.144-1986, SEC.140; P.L.135-1990, SEC.29;
P.L.108-2006, SEC.58.
IC 22-4-32-9 Disputes; appeals; use of evidence in separate or subsequent
actions
Sec. 9. (a) Any decision of the liability administrative law judge
shall be conclusive and binding as to all questions of fact. An
interested party to the dispute may, within thirty (30) days after
notice of intention to appeal as herein provided, appeal the decision
to the supreme court or the court of appeals solely for errors of law
under the same terms and conditions as govern appeals in ordinary
civil actions.
(b) Any finding of fact, judgment, conclusion, or final order made
by a person with the authority to make findings of fact or law in an
action or proceeding under this article is not conclusive or binding
and shall not be used as evidence in a separate or subsequent action
or proceeding between an individual and the individual's present or
prior employer in an action or proceeding brought before an
arbitrator, a court, or a judge of this state or the United States
regardless of whether the prior action was between the same or
related parties or involved the same facts. (Formerly: Acts 1947, c.208, s.3309; Acts 1951, c.295, s.20.) As
amended by P.L.3-1989, SEC.135; P.L.135-1990, SEC.30;
P.L.21-1995, SEC.123.
IC 22-4-32-10 Disputes; hearings; transcript of record
Sec. 10. A full and complete record shall be kept of all
proceedings had before the liability administrative law judge, and all
testimony shall be retained in a suitable media such as an audio
recording or a transcription by a court reporter. The liability
administrative law judge shall, at the timely written request of the
appellant, have a transcript prepared of all the proceedings had
before the liability administrative law judge, which shall contain a
transcript of all the testimony, together with all objections and
rulings thereon, documents and papers introduced as evidence or
offered as evidence, and all rulings as to their admission into
evidence, which said transcript shall be certified by the liability
administrative law judge and shall constitute the record on appeal. (Formerly: Acts 1947, c.208, s.3310; Acts 1951, c.295, s.21.) As
amended by P.L.135-1990, SEC.31; P.L.105-1994, SEC.4.
IC 22-4-32-11 Disputes; appeals; deposit
Sec. 11. The department, by rule, may require the appellant to
deposit with the department an amount sufficient to pay the actual
costs of preparing the transcript of the record of the proceedings
before the liability administrative law judge before preparing the
same. (Formerly: Acts 1947, c.208, s.3311; Acts 1951, c.295, s.22.) As
amended by P.L.18-1987, SEC.90; P.L.135-1990, SEC.32;
P.L.108-2006, SEC.59.
IC 22-4-32-12 Disputes; assignment of errors
Sec. 12. The appellant shall attach to said transcript an assignment
of errors. An assignment of errors that the decision of the liability
administrative law judge is contrary to law shall be sufficient to
present both the sufficiency of the facts found to sustain the decision,
and the sufficiency of the evidence to sustain the finding of facts. (Formerly: Acts 1947, c.208, s.3312; Acts 1951, c.295, s.23.) As
amended by P.L.135-1990, SEC.33.
IC 22-4-32-13 Disputes; appeals; priorities
Sec. 13. All appeals shall be submitted upon the date filed in the
supreme court or the court of appeals, shall be advanced upon the
docket of the court, and shall be determined without delay in the
order of priority. The supreme court or the court of appeals may in
any such appeal remand the proceedings to the liability
administrative law judge for the taking of additional evidence, setting
time limits therefor, and ordering such additional evidence to be
certified by the liability administrative law judge to the remanding
court to be used in the determination of the cause. (Formerly: Acts 1947, c.208, s.3313; Acts 1951, c.295, s.24.) As
amended by P.L.3-1989, SEC.136; P.L.135-1990, SEC.34.
IC 22-4-32-14
Repealed
(Repealed by Acts 1972, P.L.8, SEC.9.)
IC 22-4-32-15 Assessment of contribution; appeal; security for cost
Sec. 15. No judicial review proceeding shall be entertained by the
court with respect to the assessment of any contributions, interest or
penalties, unless the court finds that the payment of such assessment
is secured by bond, deposit or otherwise as the court may approve.
The bond shall be in such an amount necessary to insure the payment
of the assessment stayed, and court costs, if any, which may be
incurred in this action. (Formerly: Acts 1947, c.208, s.3315; Acts 1955, c.317, s.13.)
IC 22-4-32-16 Insolvency proceedings; delinquent contributions; priorities
Sec. 16. In the event of any distribution of any employer's assets
pursuant to an order of any court under the laws of this state
including but not necessarily limited to any receivership, assignment
for benefit of creditors, adjudicated insolvency, composition or
similar proceeding, contributions then or thereafter due shall be paid
in full prior to all other claims except claims for remuneration. (Formerly: Acts 1947, c.208, s.3318.) As amended by P.L.290-2001,
SEC.26; P.L.175-2009, SEC.39.
IC 22-4-32-17 Fiduciaries; final report; notice of payment of contribution
Sec. 17. No final report or act of any executor, administrator,
receiver, other fiduciary, or other officer engaged in administering
the assets of any employer subject to the payment of contributions
under this article and acting under the authority and supervision of
any court shall be allowed or approved by the court unless such
report or account shows and the court finds that all contributions,
interest, and penalties imposed by this article have been paid
pursuant to this section, and that all contributions which may become
due under this article are secured by bond or deposit. (Formerly: Acts 1947, c.208, s.3319.) As amended by P.L.144-1986,
SEC.141; P.L.290-2001, SEC.27; P.L.175-2009, SEC.40.
IC 22-4-32-18 Dissolution of companies; payment of contributions; certificate
Sec. 18. To the end that the purposes of this article may be
effectively enforced and administered, it is the declared intention of
the general assembly that in all cases of legal distributions and
dissolutions the commissioner shall have actual notice before any
fiduciary administering the affairs of an employer subject to the
payment of contributions and skills 2016 training assessments under
this article may file the fiduciary's final report with the court under
whose authority and supervision such fiduciary acts. From and after
April 1, 1947, no such final report shall be filed unless a copy thereof
has been served upon the commissioner by mailing a copy thereof by
registered mail to the commissioner at the commissioner's office in
Indianapolis at least ten (10) days prior to the filing of the same with
the court. Such final report shall contain a statement that a copy
thereof was served in the manner provided in this section upon the
commissioner, and before such final report may be approved by the
court there shall be filed in said cause a certificate from the
commissioner that this section has been fully complied with in the
administration of the affairs of said employer. In the event that the
commissioner shall not have been served with a copy of the final
report as provided in this section and the fiduciary or other officer of
the court administering the affairs of any such employer shall have
been discharged and the fiduciary's or other officer's final report
approved, the commissioner may at any time within one (1) year
from the date upon which such final report was approved file a
petition with the court alleging that there was not full compliance
with this section and the court, upon being satisfied that the
commissioner was not fully advised of the proceedings relative to the
filing and approval of the final report as provided in this section,
shall set aside its approval of said final report with the result that the
proceedings shall be reinstated as though no final report had been
filed in the first instance and shall proceed from that point in the
manner provided by law and not inconsistent with the provisions of
this section. (Formerly: Acts 1947, c.208, s.3320.) As amended by P.L.144-1986,
SEC.142; P.L.18-1987, SEC.91; P.L.21-1995, SEC.124;
P.L.290-2001, SEC.28.
IC 22-4-32-19 Adjustments or refunds; application; time limit
Sec. 19. (a) The department may grant an application for
adjustment or refund, make an adjustment or refund, or set off a
refund as follows:
(1) Not later than four (4) years after the date upon which any
contributions or interest thereon were paid, an employing unit
which has paid such contributions or interest thereon may make
application for an adjustment or a refund of such contributions
or an adjustment thereon in connection with subsequent
contribution payments. The department shall thereupon
determine whether or not such contribution or interest or any
portion thereof, was erroneously paid or wrongfully assessed.
(2) The department may grant such application in whole or in
part and may make an adjustment, without interest, in
connection with subsequent contribution payments or refund
such amounts, without interest, from the fund. Adjustments or
refund may be made on the commissioner's own initiative.
(3) Any adjustments or refunds of interest or penalties collected
for contributions due under IC 22-4-10-1 shall be charged to
and paid from the special employment and training services
fund created by IC 22-4-25.
(4) The department may set off any refund available to an
employer under this section against any delinquent
contributions, payments in lieu of contributions, and the interest
and penalties, if any, related to the delinquent payments and
assessments.
(b) Any decision by the department to:
(1) grant an application for adjustment or refund;
(2) make an adjustment or refund on its own initiative; or
(3) set off a refund;
constitutes the initial determination referred to in section 4 of this
chapter and is subject to hearing and review as provided in sections
1 through 15 of this chapter.
(c) If any assessment has become final by virtue of a decision of
a liability administrative law judge with the result that no proceeding
for judicial review as provided in this article was instituted, no
refund or adjustment with respect to such assessment shall be made. (Formerly: Acts 1947, c.208, s.3321; Acts 1967, c.310, s.23.) As
amended by P.L.144-1986, SEC.143; P.L.18-1987, SEC.92;
P.L.135-1990, SEC.35; P.L.21-1995, SEC.125; P.L.290-2001,
SEC.29; P.L.202-2005, SEC.6; P.L.108-2006, SEC.60;
P.L.175-2009, SEC.41.
IC 22-4-32-20 Contributions; penalties; personal liability of employer
Sec. 20. The contributions, penalties, and interest due from any
employer under the provisions of this article from the time they shall
be due shall be a personal liability of the employer to and for the
benefit of the fund and the employment and training services
administration fund. (Formerly: Acts 1947, c.208, s.3322.) As amended by P.L.144-1986,
SEC.144; P.L.18-1987, SEC.93; P.L.290-2001, SEC.30;
P.L.175-2009, SEC.42.
IC 22-4-32-21 Successor employer; notice of purchase; liability for contributions;
liens
Sec. 21. (a) Any individual, group of individuals, or other legal
entity, whether or not an employing unit which acquires all or part of
the organization, trade, or business within this state of an employer
or which acquires all or part of the assets of such organization, trade
or business, shall notify the commissioner in writing by registered
mail not later than five (5) days prior to the acquisition.
(b) Unless such notice is given, the commissioner shall have the
right to proceed against either the predecessor or successor, in
personam or in rem, for the collection of contributions and interest
due or accrued and unpaid by the predecessor, as of the date of such
acquisition, and the amount of such liability shall, in addition, be a
lien against the property or assets so acquired which shall be prior to
all other liens. However, the lien shall not be valid as against one
who acquires from the successor any interest in the property or assets
in good faith, for value and without notice of the lien.
(c) On written request after the acquisition is completed, the
commissioner shall furnish the successor with a written statement of
the amount of contributions and interest due or accrued and unpaid
by the predecessor as of the date of such acquisition, and the liability
of the successor and the amount of the lien shall in no event exceed
the reasonable value of the property or assets acquired by the
successor from the predecessor or the amount disclosed by such
statement, whichever is the lesser.
(d) The remedies prescribed by this section are in addition to all
other existing remedies against the predecessor or successor. (Formerly: Acts 1947, c.208, s.3323; Acts 1951, c.295, s.24 1/2.) As
amended by P.L.18-1987, SEC.94; P.L.5-1988, SEC.114;
P.L.21-1995, SEC.126.
IC 22-4-32-22
Repealed
(Repealed by P.L.107-1987, SEC.50.)
IC 22-4-32-23 Dissolution, liquidation, or withdrawal of corporation; notification;
clearance
Sec. 23. (a) As used in this section:
(1) "Dissolution" refers to dissolution of a corporation under
IC 23-1-45 through IC 23-1-48 or dissolution under Indiana law
of an association, a joint venture, an estate, a partnership, a
limited liability partnership, a limited liability company, a joint
stock company, or an insurance company (referred to as a
"noncorporate entity" in this section).
(2) "Liquidation" means the operation or act of winding up a
corporation's or entity's affairs, when normal business activities
have ceased, by settling its debts and realizing upon and
distributing its assets.
(3) "Withdrawal" refers to the withdrawal of a foreign
corporation from Indiana under IC 23-1-50.
(b) The officers and directors of a corporation effecting
dissolution, liquidation, or withdrawal or the appropriate individuals
of a noncorporate entity shall do the following:
(1) File all necessary documents with the department in a timely
manner as required by this article.
(2) Make all payments of contributions to the department in a
timely manner as required by this article.
(3) File with the department a form of notification within thirty
(30) days of the adoption of a resolution or plan. The form of
notification shall be prescribed by the department and may
require information concerning:
(A) the corporation's or noncorporate entity's assets;
(B) the corporation's or noncorporate entity's liabilities;
(C) details of the plan or resolution;
(D) the names and addresses of corporate officers, directors,
and shareholders or the noncorporate entity's owners,
members, or trustees;
(E) a copy of the minutes of the shareholders' meeting or the
noncorporate entity's meeting at which the plan or resolution
was formally adopted; and
(F) such other information as the board may require.
The commissioner may accept, in lieu of the department's form
of notification, a copy of Form 966 that the corporation filed
with the Internal Revenue Service.
(c) Unless a clearance is issued under subsection (g), for a period
of one (1) year following the filing of the form of notification with
the department, the corporate officers and directors of a corporation
and the chief executive of a noncorporate entity remain personally
liable, subject to IC 23-1-35-1(e), for any acts or omissions that
result in the distribution of corporate or noncorporate entity assets in
violation of the interests of the state. An officer or director of a
corporation or a chief executive of a noncorporate entity held liable
for an unlawful distribution under this subsection is entitled to
contribution:
(1) from every other director who voted for or assented to the
distribution, subject to IC 23-1-35-1(e); and
(2) from each shareholder, owner, member, or trustee for the
amount the shareholder, owner, member, or trustee accepted.
(d) The corporation's officers' and directors' and the noncorporate
entity's chief executive's personal liability includes all contributions,
penalties, interest, and fees associated with the collection of the
liability due the department. In addition to the penalties provided
elsewhere in this article, a penalty of up to thirty percent (30%) of
the unpaid contributions and skills 2016 training assessments may be
imposed on the corporate officers and directors and the noncorporate
entity's chief executive for failure to take reasonable steps to set
aside corporate assets to meet the liability due the department.
(e) If the department fails to begin a collection action against a
corporate officer or director or a noncorporate entity's chief
executive within one (1) year after the filing of a completed form of
notification with the department, the personal liability of the
corporate officer or director or noncorporate entity's chief executive
expires. The filing of a substantially blank form of notification or a
form containing misrepresentation of material facts does not
constitute filing a form of notification for the purpose of determining
the period of personal liability of the officers and directors of the
corporation or the chief executive of the noncorporate entity.
(f) In addition to the remedies contained in this section, the
department is entitled to pursue corporate assets that have been
distributed to shareholders or noncorporate entity assets that have
been distributed to owners, members, or beneficiaries, in violation of
the interests of the state. The election to pursue one (1) remedy does
not foreclose the state's option to pursue other legal remedies.
(g) The department may issue a clearance to a corporation or
noncorporate entity effecting dissolution, liquidation, or withdrawal
if:
(1) the:
(A) officers and directors of the corporation have; or
(B) chief executive of the noncorporate entity has;
met the requirements of subsection (b); and
(2) request for the clearance is made in writing by the officers
and directors of the corporation or chief executive of the
noncorporate entity within thirty (30) days after the filing of the
form of notification with the department.
(h) The issuance of a clearance by the department under
subsection (g) releases the officers and directors of a corporation and
the chief executive of a noncorporate entity from personal liability
under this section. As added by P.L.107-1987, SEC.2. Amended by P.L.21-1995,
SEC.127; P.L.290-2001, SEC.31; P.L.1-2002, SEC.93;
P.L.175-2009, SEC.43.
IC 22-4-32-24 Notices
Sec. 24. (a) This section applies to notices given under sections 4,
7, 8, and 9 of this chapter.
(b) As used in this section, "notices" includes mailings pertaining
to:
(1) the assessment of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) successorships and related matters arising from
successorships;
(4) claims for refunds and adjustments;
(5) violations under IC 22-4-11.5;
(6) decisions; and
(7) notices of intention to appeal or seek judicial review.
(c) If a notice under this chapter is served through the United
States Postal Service, three (3) days must be added to a period that
commences upon service of that notice.
(d) The filing of a document with the unemployment insurance
appeals division or review board is complete on the earliest of the
following dates that apply to the filing:
(1) The date on which the document is delivered to the
unemployment insurance appeals division or review board.
(2) The date of the postmark on the envelope containing the
document if the document is mailed to the unemployment
insurance appeals division or review board by the United States
Postal Service.
(3) The date on which the document is deposited with a private
carrier, as shown by a receipt issued by the carrier, if the
document is sent to the unemployment insurance appeals
division or review board by a private carrier. As added by P.L.135-1990, SEC.36. Amended by P.L.290-2001,
SEC.32; P.L.108-2006, SEC.61; P.L.175-2009, SEC.44.
IC 22-4-32
Chapter 32. Employer Liability, Rights, and Remedies
IC 22-4-32-1 Disputes; hearings
Sec. 1. A liability administrative law judge shall hear all matters
pertaining to:
(1) the assessment of contributions, penalties, and interest;
(2) which accounts, if any, benefits paid, or finally ordered to
be paid, should be charged;
(3) successorships, and related matters arising therefrom,
including but not limited to:
(A) the transfer of accounts;
(B) the determination of rates of contribution; and
(C) determinations under IC 22-4-11.5; and
(4) claims for refunds of contributions, skills 2016 training
assessments, or adjustments thereon in connection with
subsequent contribution payments and skills 2016 training
assessments;
for which an employing unit has timely filed a protest under section
4 of this chapter. (Formerly: Acts 1947, c.208, s.3301.) As amended by P.L.135-1990,
SEC.23; P.L.290-2001, SEC.25; P.L.108-2006, SEC.54.
IC 22-4-32-2 Disputes; subpoenas; interlocutory orders
Sec. 2. In addition to all other powers conferred upon the liability
administrative law judge in accordance with this article and the rules
issued pursuant to this article, the liability administrative law judge
shall have the power to:
(1) administer oaths and affirmations;
(2) issue such subpoenas as are provided for by IC 22-4-17-7;
(3) rule upon offers of proof and receive relevant oral or
documentary evidence;
(4) take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(5) regulate the course of a hearing and the conduct of the
parties;
(6) hold informal prehearing conferences for the settlement or
simplification of the issues by consent of the parties;
(7) examine or cause to have examined by order such parts of
the books and records of the parties to a proceeding as relate to
the questions in dispute;
(8) dispose of procedural motions, requests for adjustment;
(9) continue any hearing upon his own motion, or upon
application of any interested party for good cause shown; and
(10) make such interlocutory and final orders as are necessary
for the resolving or determination of the issues arising in the
cause. (Formerly: Acts 1947, c.208, s.3302.) As amended by P.L.144-1986,
SEC.138; P.L.135-1990, SEC.24.
IC 22-4-32-3 Disputes; rules of practice and procedure; qualifications of person
representing employer
Sec. 3. The proceedings before a liability administrative law judge
shall be conducted in accordance with such rules of practice and
procedure as the department may adopt under its rulemaking
authority under IC 22-4-18-1. Any person representing any interested
party in the prosecution or defense of any proceedings before a
liability administrative law judge must be admitted to practice law in
the courts of the state of Indiana, except that persons admitted to
practice before the courts of other states may on special order be
permitted to appear in any proceeding before the liability
administrative law judge. This section shall not be construed to
prohibit an interested party from electing to be heard in his own
cause without counsel. (Formerly: Acts 1947, c.208, s.3303.) As amended by P.L.144-1986,
SEC.139; P.L.135-1990, SEC.25; P.L.108-2006, SEC.55.
IC 22-4-32-4 Disputes; protest; time limit
Sec. 4. An employing unit shall have fifteen (15) calendar days,
beginning on the date an initial determination is mailed to the
employing unit, within which to protest in writing an initial
determination of the department with respect to:
(1) the assessments of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) merit rate calculations;
(4) successorships;
(5) the denial of claims for refunds and adjustments; and
(6) a determination under IC 22-4-11.5. (Formerly: Acts 1947, c.208, s.3304.) As amended by P.L.18-1987,
SEC.86; P.L.21-1995, SEC.120; P.L.108-2006, SEC.56.
IC 22-4-32-5 Disputes; protest; hearing
Sec. 5. Upon receipt of such protest in writing, the commissioner
promptly shall refer the written protest to the liability administrative
law judge who shall set a date for a hearing before the liability
administrative law judge and notify the interested parties thereof by
registered mail. Unless such written protest is withdrawn, the
liability administrative law judge, after affording the parties a
reasonable opportunity for a fair hearing, shall make findings and
conclusions, and, on the basis thereof, affirm, modify, or reverse the
initial determination of the board. (Formerly: Acts 1947, c.208, s.3305.) As amended by P.L.18-1987,
SEC.87; P.L.135-1990, SEC.26; P.L.21-1995, SEC.121.
IC 22-4-32-6 Disputes; parties
Sec. 6. Any interested party to the dispute shall mean and include
the protesting employing unit, the commissioner, and any person
appearing to the liability administrative law judge to be necessary or
indispensable to the determination of the issues involved in the
hearing. (Formerly: Acts 1947, c.208, s.3306; Acts 1957, c.299, s.11.) As
amended by P.L.18-1987, SEC.88; P.L.135-1990, SEC.27;
P.L.21-1995, SEC.122.
IC 22-4-32-7 Disputes; finding and decision; notice of appeal
Sec. 7. After the hearing the liability administrative law judge
shall as soon as practicable notify the interested parties in writing of
the finding and decision of the liability administrative law judge,
which shall become final thirty (30) days thereafter in the absence of
the filing of a notice of appeal as provided in this chapter. (Formerly: Acts 1947, c.208, s.3307.) As amended by P.L.18-1987,
SEC.89; P.L.135-1990, SEC.28; P.L.108-2006, SEC.57.
IC 22-4-32-8 Disputes; appeals; notice
Sec. 8. A notice of appeal shall be served on the adverse party at
any time before the decision of the liability administrative law judge
becomes final, and shall stay the finality of the decision for thirty
(30) days from the service of such notice. If such appeal is perfected,
further proceedings shall be stayed pending the final determination
of said appeal. If an appeal from the decision of the liability
administrative law judge is not perfected within the time provided for
by this article, no action or proceeding shall be further stayed. (Formerly: Acts 1947, c.208, s.3308; Acts 1951, c.295, s.19.) As
amended by P.L.144-1986, SEC.140; P.L.135-1990, SEC.29;
P.L.108-2006, SEC.58.
IC 22-4-32-9 Disputes; appeals; use of evidence in separate or subsequent
actions
Sec. 9. (a) Any decision of the liability administrative law judge
shall be conclusive and binding as to all questions of fact. An
interested party to the dispute may, within thirty (30) days after
notice of intention to appeal as herein provided, appeal the decision
to the supreme court or the court of appeals solely for errors of law
under the same terms and conditions as govern appeals in ordinary
civil actions.
(b) Any finding of fact, judgment, conclusion, or final order made
by a person with the authority to make findings of fact or law in an
action or proceeding under this article is not conclusive or binding
and shall not be used as evidence in a separate or subsequent action
or proceeding between an individual and the individual's present or
prior employer in an action or proceeding brought before an
arbitrator, a court, or a judge of this state or the United States
regardless of whether the prior action was between the same or
related parties or involved the same facts. (Formerly: Acts 1947, c.208, s.3309; Acts 1951, c.295, s.20.) As
amended by P.L.3-1989, SEC.135; P.L.135-1990, SEC.30;
P.L.21-1995, SEC.123.
IC 22-4-32-10 Disputes; hearings; transcript of record
Sec. 10. A full and complete record shall be kept of all
proceedings had before the liability administrative law judge, and all
testimony shall be retained in a suitable media such as an audio
recording or a transcription by a court reporter. The liability
administrative law judge shall, at the timely written request of the
appellant, have a transcript prepared of all the proceedings had
before the liability administrative law judge, which shall contain a
transcript of all the testimony, together with all objections and
rulings thereon, documents and papers introduced as evidence or
offered as evidence, and all rulings as to their admission into
evidence, which said transcript shall be certified by the liability
administrative law judge and shall constitute the record on appeal. (Formerly: Acts 1947, c.208, s.3310; Acts 1951, c.295, s.21.) As
amended by P.L.135-1990, SEC.31; P.L.105-1994, SEC.4.
IC 22-4-32-11 Disputes; appeals; deposit
Sec. 11. The department, by rule, may require the appellant to
deposit with the department an amount sufficient to pay the actual
costs of preparing the transcript of the record of the proceedings
before the liability administrative law judge before preparing the
same. (Formerly: Acts 1947, c.208, s.3311; Acts 1951, c.295, s.22.) As
amended by P.L.18-1987, SEC.90; P.L.135-1990, SEC.32;
P.L.108-2006, SEC.59.
IC 22-4-32-12 Disputes; assignment of errors
Sec. 12. The appellant shall attach to said transcript an assignment
of errors. An assignment of errors that the decision of the liability
administrative law judge is contrary to law shall be sufficient to
present both the sufficiency of the facts found to sustain the decision,
and the sufficiency of the evidence to sustain the finding of facts. (Formerly: Acts 1947, c.208, s.3312; Acts 1951, c.295, s.23.) As
amended by P.L.135-1990, SEC.33.
IC 22-4-32-13 Disputes; appeals; priorities
Sec. 13. All appeals shall be submitted upon the date filed in the
supreme court or the court of appeals, shall be advanced upon the
docket of the court, and shall be determined without delay in the
order of priority. The supreme court or the court of appeals may in
any such appeal remand the proceedings to the liability
administrative law judge for the taking of additional evidence, setting
time limits therefor, and ordering such additional evidence to be
certified by the liability administrative law judge to the remanding
court to be used in the determination of the cause. (Formerly: Acts 1947, c.208, s.3313; Acts 1951, c.295, s.24.) As
amended by P.L.3-1989, SEC.136; P.L.135-1990, SEC.34.
IC 22-4-32-14
Repealed
(Repealed by Acts 1972, P.L.8, SEC.9.)
IC 22-4-32-15 Assessment of contribution; appeal; security for cost
Sec. 15. No judicial review proceeding shall be entertained by the
court with respect to the assessment of any contributions, interest or
penalties, unless the court finds that the payment of such assessment
is secured by bond, deposit or otherwise as the court may approve.
The bond shall be in such an amount necessary to insure the payment
of the assessment stayed, and court costs, if any, which may be
incurred in this action. (Formerly: Acts 1947, c.208, s.3315; Acts 1955, c.317, s.13.)
IC 22-4-32-16 Insolvency proceedings; delinquent contributions; priorities
Sec. 16. In the event of any distribution of any employer's assets
pursuant to an order of any court under the laws of this state
including but not necessarily limited to any receivership, assignment
for benefit of creditors, adjudicated insolvency, composition or
similar proceeding, contributions then or thereafter due shall be paid
in full prior to all other claims except claims for remuneration. (Formerly: Acts 1947, c.208, s.3318.) As amended by P.L.290-2001,
SEC.26; P.L.175-2009, SEC.39.
IC 22-4-32-17 Fiduciaries; final report; notice of payment of contribution
Sec. 17. No final report or act of any executor, administrator,
receiver, other fiduciary, or other officer engaged in administering
the assets of any employer subject to the payment of contributions
under this article and acting under the authority and supervision of
any court shall be allowed or approved by the court unless such
report or account shows and the court finds that all contributions,
interest, and penalties imposed by this article have been paid
pursuant to this section, and that all contributions which may become
due under this article are secured by bond or deposit. (Formerly: Acts 1947, c.208, s.3319.) As amended by P.L.144-1986,
SEC.141; P.L.290-2001, SEC.27; P.L.175-2009, SEC.40.
IC 22-4-32-18 Dissolution of companies; payment of contributions; certificate
Sec. 18. To the end that the purposes of this article may be
effectively enforced and administered, it is the declared intention of
the general assembly that in all cases of legal distributions and
dissolutions the commissioner shall have actual notice before any
fiduciary administering the affairs of an employer subject to the
payment of contributions and skills 2016 training assessments under
this article may file the fiduciary's final report with the court under
whose authority and supervision such fiduciary acts. From and after
April 1, 1947, no such final report shall be filed unless a copy thereof
has been served upon the commissioner by mailing a copy thereof by
registered mail to the commissioner at the commissioner's office in
Indianapolis at least ten (10) days prior to the filing of the same with
the court. Such final report shall contain a statement that a copy
thereof was served in the manner provided in this section upon the
commissioner, and before such final report may be approved by the
court there shall be filed in said cause a certificate from the
commissioner that this section has been fully complied with in the
administration of the affairs of said employer. In the event that the
commissioner shall not have been served with a copy of the final
report as provided in this section and the fiduciary or other officer of
the court administering the affairs of any such employer shall have
been discharged and the fiduciary's or other officer's final report
approved, the commissioner may at any time within one (1) year
from the date upon which such final report was approved file a
petition with the court alleging that there was not full compliance
with this section and the court, upon being satisfied that the
commissioner was not fully advised of the proceedings relative to the
filing and approval of the final report as provided in this section,
shall set aside its approval of said final report with the result that the
proceedings shall be reinstated as though no final report had been
filed in the first instance and shall proceed from that point in the
manner provided by law and not inconsistent with the provisions of
this section. (Formerly: Acts 1947, c.208, s.3320.) As amended by P.L.144-1986,
SEC.142; P.L.18-1987, SEC.91; P.L.21-1995, SEC.124;
P.L.290-2001, SEC.28.
IC 22-4-32-19 Adjustments or refunds; application; time limit
Sec. 19. (a) The department may grant an application for
adjustment or refund, make an adjustment or refund, or set off a
refund as follows:
(1) Not later than four (4) years after the date upon which any
contributions or interest thereon were paid, an employing unit
which has paid such contributions or interest thereon may make
application for an adjustment or a refund of such contributions
or an adjustment thereon in connection with subsequent
contribution payments. The department shall thereupon
determine whether or not such contribution or interest or any
portion thereof, was erroneously paid or wrongfully assessed.
(2) The department may grant such application in whole or in
part and may make an adjustment, without interest, in
connection with subsequent contribution payments or refund
such amounts, without interest, from the fund. Adjustments or
refund may be made on the commissioner's own initiative.
(3) Any adjustments or refunds of interest or penalties collected
for contributions due under IC 22-4-10-1 shall be charged to
and paid from the special employment and training services
fund created by IC 22-4-25.
(4) The department may set off any refund available to an
employer under this section against any delinquent
contributions, payments in lieu of contributions, and the interest
and penalties, if any, related to the delinquent payments and
assessments.
(b) Any decision by the department to:
(1) grant an application for adjustment or refund;
(2) make an adjustment or refund on its own initiative; or
(3) set off a refund;
constitutes the initial determination referred to in section 4 of this
chapter and is subject to hearing and review as provided in sections
1 through 15 of this chapter.
(c) If any assessment has become final by virtue of a decision of
a liability administrative law judge with the result that no proceeding
for judicial review as provided in this article was instituted, no
refund or adjustment with respect to such assessment shall be made. (Formerly: Acts 1947, c.208, s.3321; Acts 1967, c.310, s.23.) As
amended by P.L.144-1986, SEC.143; P.L.18-1987, SEC.92;
P.L.135-1990, SEC.35; P.L.21-1995, SEC.125; P.L.290-2001,
SEC.29; P.L.202-2005, SEC.6; P.L.108-2006, SEC.60;
P.L.175-2009, SEC.41.
IC 22-4-32-20 Contributions; penalties; personal liability of employer
Sec. 20. The contributions, penalties, and interest due from any
employer under the provisions of this article from the time they shall
be due shall be a personal liability of the employer to and for the
benefit of the fund and the employment and training services
administration fund. (Formerly: Acts 1947, c.208, s.3322.) As amended by P.L.144-1986,
SEC.144; P.L.18-1987, SEC.93; P.L.290-2001, SEC.30;
P.L.175-2009, SEC.42.
IC 22-4-32-21 Successor employer; notice of purchase; liability for contributions;
liens
Sec. 21. (a) Any individual, group of individuals, or other legal
entity, whether or not an employing unit which acquires all or part of
the organization, trade, or business within this state of an employer
or which acquires all or part of the assets of such organization, trade
or business, shall notify the commissioner in writing by registered
mail not later than five (5) days prior to the acquisition.
(b) Unless such notice is given, the commissioner shall have the
right to proceed against either the predecessor or successor, in
personam or in rem, for the collection of contributions and interest
due or accrued and unpaid by the predecessor, as of the date of such
acquisition, and the amount of such liability shall, in addition, be a
lien against the property or assets so acquired which shall be prior to
all other liens. However, the lien shall not be valid as against one
who acquires from the successor any interest in the property or assets
in good faith, for value and without notice of the lien.
(c) On written request after the acquisition is completed, the
commissioner shall furnish the successor with a written statement of
the amount of contributions and interest due or accrued and unpaid
by the predecessor as of the date of such acquisition, and the liability
of the successor and the amount of the lien shall in no event exceed
the reasonable value of the property or assets acquired by the
successor from the predecessor or the amount disclosed by such
statement, whichever is the lesser.
(d) The remedies prescribed by this section are in addition to all
other existing remedies against the predecessor or successor. (Formerly: Acts 1947, c.208, s.3323; Acts 1951, c.295, s.24 1/2.) As
amended by P.L.18-1987, SEC.94; P.L.5-1988, SEC.114;
P.L.21-1995, SEC.126.
IC 22-4-32-22
Repealed
(Repealed by P.L.107-1987, SEC.50.)
IC 22-4-32-23 Dissolution, liquidation, or withdrawal of corporation; notification;
clearance
Sec. 23. (a) As used in this section:
(1) "Dissolution" refers to dissolution of a corporation under
IC 23-1-45 through IC 23-1-48 or dissolution under Indiana law
of an association, a joint venture, an estate, a partnership, a
limited liability partnership, a limited liability company, a joint
stock company, or an insurance company (referred to as a
"noncorporate entity" in this section).
(2) "Liquidation" means the operation or act of winding up a
corporation's or entity's affairs, when normal business activities
have ceased, by settling its debts and realizing upon and
distributing its assets.
(3) "Withdrawal" refers to the withdrawal of a foreign
corporation from Indiana under IC 23-1-50.
(b) The officers and directors of a corporation effecting
dissolution, liquidation, or withdrawal or the appropriate individuals
of a noncorporate entity shall do the following:
(1) File all necessary documents with the department in a timely
manner as required by this article.
(2) Make all payments of contributions to the department in a
timely manner as required by this article.
(3) File with the department a form of notification within thirty
(30) days of the adoption of a resolution or plan. The form of
notification shall be prescribed by the department and may
require information concerning:
(A) the corporation's or noncorporate entity's assets;
(B) the corporation's or noncorporate entity's liabilities;
(C) details of the plan or resolution;
(D) the names and addresses of corporate officers, directors,
and shareholders or the noncorporate entity's owners,
members, or trustees;
(E) a copy of the minutes of the shareholders' meeting or the
noncorporate entity's meeting at which the plan or resolution
was formally adopted; and
(F) such other information as the board may require.
The commissioner may accept, in lieu of the department's form
of notification, a copy of Form 966 that the corporation filed
with the Internal Revenue Service.
(c) Unless a clearance is issued under subsection (g), for a period
of one (1) year following the filing of the form of notification with
the department, the corporate officers and directors of a corporation
and the chief executive of a noncorporate entity remain personally
liable, subject to IC 23-1-35-1(e), for any acts or omissions that
result in the distribution of corporate or noncorporate entity assets in
violation of the interests of the state. An officer or director of a
corporation or a chief executive of a noncorporate entity held liable
for an unlawful distribution under this subsection is entitled to
contribution:
(1) from every other director who voted for or assented to the
distribution, subject to IC 23-1-35-1(e); and
(2) from each shareholder, owner, member, or trustee for the
amount the shareholder, owner, member, or trustee accepted.
(d) The corporation's officers' and directors' and the noncorporate
entity's chief executive's personal liability includes all contributions,
penalties, interest, and fees associated with the collection of the
liability due the department. In addition to the penalties provided
elsewhere in this article, a penalty of up to thirty percent (30%) of
the unpaid contributions and skills 2016 training assessments may be
imposed on the corporate officers and directors and the noncorporate
entity's chief executive for failure to take reasonable steps to set
aside corporate assets to meet the liability due the department.
(e) If the department fails to begin a collection action against a
corporate officer or director or a noncorporate entity's chief
executive within one (1) year after the filing of a completed form of
notification with the department, the personal liability of the
corporate officer or director or noncorporate entity's chief executive
expires. The filing of a substantially blank form of notification or a
form containing misrepresentation of material facts does not
constitute filing a form of notification for the purpose of determining
the period of personal liability of the officers and directors of the
corporation or the chief executive of the noncorporate entity.
(f) In addition to the remedies contained in this section, the
department is entitled to pursue corporate assets that have been
distributed to shareholders or noncorporate entity assets that have
been distributed to owners, members, or beneficiaries, in violation of
the interests of the state. The election to pursue one (1) remedy does
not foreclose the state's option to pursue other legal remedies.
(g) The department may issue a clearance to a corporation or
noncorporate entity effecting dissolution, liquidation, or withdrawal
if:
(1) the:
(A) officers and directors of the corporation have; or
(B) chief executive of the noncorporate entity has;
met the requirements of subsection (b); and
(2) request for the clearance is made in writing by the officers
and directors of the corporation or chief executive of the
noncorporate entity within thirty (30) days after the filing of the
form of notification with the department.
(h) The issuance of a clearance by the department under
subsection (g) releases the officers and directors of a corporation and
the chief executive of a noncorporate entity from personal liability
under this section. As added by P.L.107-1987, SEC.2. Amended by P.L.21-1995,
SEC.127; P.L.290-2001, SEC.31; P.L.1-2002, SEC.93;
P.L.175-2009, SEC.43.
IC 22-4-32-24 Notices
Sec. 24. (a) This section applies to notices given under sections 4,
7, 8, and 9 of this chapter.
(b) As used in this section, "notices" includes mailings pertaining
to:
(1) the assessment of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) successorships and related matters arising from
successorships;
(4) claims for refunds and adjustments;
(5) violations under IC 22-4-11.5;
(6) decisions; and
(7) notices of intention to appeal or seek judicial review.
(c) If a notice under this chapter is served through the United
States Postal Service, three (3) days must be added to a period that
commences upon service of that notice.
(d) The filing of a document with the unemployment insurance
appeals division or review board is complete on the earliest of the
following dates that apply to the filing:
(1) The date on which the document is delivered to the
unemployment insurance appeals division or review board.
(2) The date of the postmark on the envelope containing the
document if the document is mailed to the unemployment
insurance appeals division or review board by the United States
Postal Service.
(3) The date on which the document is deposited with a private
carrier, as shown by a receipt issued by the carrier, if the
document is sent to the unemployment insurance appeals
division or review board by a private carrier. As added by P.L.135-1990, SEC.36. Amended by P.L.290-2001,
SEC.32; P.L.108-2006, SEC.61; P.L.175-2009, SEC.44.
IC 22-4-32
Chapter 32. Employer Liability, Rights, and Remedies
IC 22-4-32-1 Disputes; hearings
Sec. 1. A liability administrative law judge shall hear all matters
pertaining to:
(1) the assessment of contributions, penalties, and interest;
(2) which accounts, if any, benefits paid, or finally ordered to
be paid, should be charged;
(3) successorships, and related matters arising therefrom,
including but not limited to:
(A) the transfer of accounts;
(B) the determination of rates of contribution; and
(C) determinations under IC 22-4-11.5; and
(4) claims for refunds of contributions, skills 2016 training
assessments, or adjustments thereon in connection with
subsequent contribution payments and skills 2016 training
assessments;
for which an employing unit has timely filed a protest under section
4 of this chapter. (Formerly: Acts 1947, c.208, s.3301.) As amended by P.L.135-1990,
SEC.23; P.L.290-2001, SEC.25; P.L.108-2006, SEC.54.
IC 22-4-32-2 Disputes; subpoenas; interlocutory orders
Sec. 2. In addition to all other powers conferred upon the liability
administrative law judge in accordance with this article and the rules
issued pursuant to this article, the liability administrative law judge
shall have the power to:
(1) administer oaths and affirmations;
(2) issue such subpoenas as are provided for by IC 22-4-17-7;
(3) rule upon offers of proof and receive relevant oral or
documentary evidence;
(4) take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(5) regulate the course of a hearing and the conduct of the
parties;
(6) hold informal prehearing conferences for the settlement or
simplification of the issues by consent of the parties;
(7) examine or cause to have examined by order such parts of
the books and records of the parties to a proceeding as relate to
the questions in dispute;
(8) dispose of procedural motions, requests for adjustment;
(9) continue any hearing upon his own motion, or upon
application of any interested party for good cause shown; and
(10) make such interlocutory and final orders as are necessary
for the resolving or determination of the issues arising in the
cause. (Formerly: Acts 1947, c.208, s.3302.) As amended by P.L.144-1986,
SEC.138; P.L.135-1990, SEC.24.
IC 22-4-32-3 Disputes; rules of practice and procedure; qualifications of person
representing employer
Sec. 3. The proceedings before a liability administrative law judge
shall be conducted in accordance with such rules of practice and
procedure as the department may adopt under its rulemaking
authority under IC 22-4-18-1. Any person representing any interested
party in the prosecution or defense of any proceedings before a
liability administrative law judge must be admitted to practice law in
the courts of the state of Indiana, except that persons admitted to
practice before the courts of other states may on special order be
permitted to appear in any proceeding before the liability
administrative law judge. This section shall not be construed to
prohibit an interested party from electing to be heard in his own
cause without counsel. (Formerly: Acts 1947, c.208, s.3303.) As amended by P.L.144-1986,
SEC.139; P.L.135-1990, SEC.25; P.L.108-2006, SEC.55.
IC 22-4-32-4 Disputes; protest; time limit
Sec. 4. An employing unit shall have fifteen (15) calendar days,
beginning on the date an initial determination is mailed to the
employing unit, within which to protest in writing an initial
determination of the department with respect to:
(1) the assessments of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) merit rate calculations;
(4) successorships;
(5) the denial of claims for refunds and adjustments; and
(6) a determination under IC 22-4-11.5. (Formerly: Acts 1947, c.208, s.3304.) As amended by P.L.18-1987,
SEC.86; P.L.21-1995, SEC.120; P.L.108-2006, SEC.56.
IC 22-4-32-5 Disputes; protest; hearing
Sec. 5. Upon receipt of such protest in writing, the commissioner
promptly shall refer the written protest to the liability administrative
law judge who shall set a date for a hearing before the liability
administrative law judge and notify the interested parties thereof by
registered mail. Unless such written protest is withdrawn, the
liability administrative law judge, after affording the parties a
reasonable opportunity for a fair hearing, shall make findings and
conclusions, and, on the basis thereof, affirm, modify, or reverse the
initial determination of the board. (Formerly: Acts 1947, c.208, s.3305.) As amended by P.L.18-1987,
SEC.87; P.L.135-1990, SEC.26; P.L.21-1995, SEC.121.
IC 22-4-32-6 Disputes; parties
Sec. 6. Any interested party to the dispute shall mean and include
the protesting employing unit, the commissioner, and any person
appearing to the liability administrative law judge to be necessary or
indispensable to the determination of the issues involved in the
hearing. (Formerly: Acts 1947, c.208, s.3306; Acts 1957, c.299, s.11.) As
amended by P.L.18-1987, SEC.88; P.L.135-1990, SEC.27;
P.L.21-1995, SEC.122.
IC 22-4-32-7 Disputes; finding and decision; notice of appeal
Sec. 7. After the hearing the liability administrative law judge
shall as soon as practicable notify the interested parties in writing of
the finding and decision of the liability administrative law judge,
which shall become final thirty (30) days thereafter in the absence of
the filing of a notice of appeal as provided in this chapter. (Formerly: Acts 1947, c.208, s.3307.) As amended by P.L.18-1987,
SEC.89; P.L.135-1990, SEC.28; P.L.108-2006, SEC.57.
IC 22-4-32-8 Disputes; appeals; notice
Sec. 8. A notice of appeal shall be served on the adverse party at
any time before the decision of the liability administrative law judge
becomes final, and shall stay the finality of the decision for thirty
(30) days from the service of such notice. If such appeal is perfected,
further proceedings shall be stayed pending the final determination
of said appeal. If an appeal from the decision of the liability
administrative law judge is not perfected within the time provided for
by this article, no action or proceeding shall be further stayed. (Formerly: Acts 1947, c.208, s.3308; Acts 1951, c.295, s.19.) As
amended by P.L.144-1986, SEC.140; P.L.135-1990, SEC.29;
P.L.108-2006, SEC.58.
IC 22-4-32-9 Disputes; appeals; use of evidence in separate or subsequent
actions
Sec. 9. (a) Any decision of the liability administrative law judge
shall be conclusive and binding as to all questions of fact. An
interested party to the dispute may, within thirty (30) days after
notice of intention to appeal as herein provided, appeal the decision
to the supreme court or the court of appeals solely for errors of law
under the same terms and conditions as govern appeals in ordinary
civil actions.
(b) Any finding of fact, judgment, conclusion, or final order made
by a person with the authority to make findings of fact or law in an
action or proceeding under this article is not conclusive or binding
and shall not be used as evidence in a separate or subsequent action
or proceeding between an individual and the individual's present or
prior employer in an action or proceeding brought before an
arbitrator, a court, or a judge of this state or the United States
regardless of whether the prior action was between the same or
related parties or involved the same facts. (Formerly: Acts 1947, c.208, s.3309; Acts 1951, c.295, s.20.) As
amended by P.L.3-1989, SEC.135; P.L.135-1990, SEC.30;
P.L.21-1995, SEC.123.
IC 22-4-32-10 Disputes; hearings; transcript of record
Sec. 10. A full and complete record shall be kept of all
proceedings had before the liability administrative law judge, and all
testimony shall be retained in a suitable media such as an audio
recording or a transcription by a court reporter. The liability
administrative law judge shall, at the timely written request of the
appellant, have a transcript prepared of all the proceedings had
before the liability administrative law judge, which shall contain a
transcript of all the testimony, together with all objections and
rulings thereon, documents and papers introduced as evidence or
offered as evidence, and all rulings as to their admission into
evidence, which said transcript shall be certified by the liability
administrative law judge and shall constitute the record on appeal. (Formerly: Acts 1947, c.208, s.3310; Acts 1951, c.295, s.21.) As
amended by P.L.135-1990, SEC.31; P.L.105-1994, SEC.4.
IC 22-4-32-11 Disputes; appeals; deposit
Sec. 11. The department, by rule, may require the appellant to
deposit with the department an amount sufficient to pay the actual
costs of preparing the transcript of the record of the proceedings
before the liability administrative law judge before preparing the
same. (Formerly: Acts 1947, c.208, s.3311; Acts 1951, c.295, s.22.) As
amended by P.L.18-1987, SEC.90; P.L.135-1990, SEC.32;
P.L.108-2006, SEC.59.
IC 22-4-32-12 Disputes; assignment of errors
Sec. 12. The appellant shall attach to said transcript an assignment
of errors. An assignment of errors that the decision of the liability
administrative law judge is contrary to law shall be sufficient to
present both the sufficiency of the facts found to sustain the decision,
and the sufficiency of the evidence to sustain the finding of facts. (Formerly: Acts 1947, c.208, s.3312; Acts 1951, c.295, s.23.) As
amended by P.L.135-1990, SEC.33.
IC 22-4-32-13 Disputes; appeals; priorities
Sec. 13. All appeals shall be submitted upon the date filed in the
supreme court or the court of appeals, shall be advanced upon the
docket of the court, and shall be determined without delay in the
order of priority. The supreme court or the court of appeals may in
any such appeal remand the proceedings to the liability
administrative law judge for the taking of additional evidence, setting
time limits therefor, and ordering such additional evidence to be
certified by the liability administrative law judge to the remanding
court to be used in the determination of the cause. (Formerly: Acts 1947, c.208, s.3313; Acts 1951, c.295, s.24.) As
amended by P.L.3-1989, SEC.136; P.L.135-1990, SEC.34.
IC 22-4-32-14
Repealed
(Repealed by Acts 1972, P.L.8, SEC.9.)
IC 22-4-32-15 Assessment of contribution; appeal; security for cost
Sec. 15. No judicial review proceeding shall be entertained by the
court with respect to the assessment of any contributions, interest or
penalties, unless the court finds that the payment of such assessment
is secured by bond, deposit or otherwise as the court may approve.
The bond shall be in such an amount necessary to insure the payment
of the assessment stayed, and court costs, if any, which may be
incurred in this action. (Formerly: Acts 1947, c.208, s.3315; Acts 1955, c.317, s.13.)
IC 22-4-32-16 Insolvency proceedings; delinquent contributions; priorities
Sec. 16. In the event of any distribution of any employer's assets
pursuant to an order of any court under the laws of this state
including but not necessarily limited to any receivership, assignment
for benefit of creditors, adjudicated insolvency, composition or
similar proceeding, contributions then or thereafter due shall be paid
in full prior to all other claims except claims for remuneration. (Formerly: Acts 1947, c.208, s.3318.) As amended by P.L.290-2001,
SEC.26; P.L.175-2009, SEC.39.
IC 22-4-32-17 Fiduciaries; final report; notice of payment of contribution
Sec. 17. No final report or act of any executor, administrator,
receiver, other fiduciary, or other officer engaged in administering
the assets of any employer subject to the payment of contributions
under this article and acting under the authority and supervision of
any court shall be allowed or approved by the court unless such
report or account shows and the court finds that all contributions,
interest, and penalties imposed by this article have been paid
pursuant to this section, and that all contributions which may become
due under this article are secured by bond or deposit. (Formerly: Acts 1947, c.208, s.3319.) As amended by P.L.144-1986,
SEC.141; P.L.290-2001, SEC.27; P.L.175-2009, SEC.40.
IC 22-4-32-18 Dissolution of companies; payment of contributions; certificate
Sec. 18. To the end that the purposes of this article may be
effectively enforced and administered, it is the declared intention of
the general assembly that in all cases of legal distributions and
dissolutions the commissioner shall have actual notice before any
fiduciary administering the affairs of an employer subject to the
payment of contributions and skills 2016 training assessments under
this article may file the fiduciary's final report with the court under
whose authority and supervision such fiduciary acts. From and after
April 1, 1947, no such final report shall be filed unless a copy thereof
has been served upon the commissioner by mailing a copy thereof by
registered mail to the commissioner at the commissioner's office in
Indianapolis at least ten (10) days prior to the filing of the same with
the court. Such final report shall contain a statement that a copy
thereof was served in the manner provided in this section upon the
commissioner, and before such final report may be approved by the
court there shall be filed in said cause a certificate from the
commissioner that this section has been fully complied with in the
administration of the affairs of said employer. In the event that the
commissioner shall not have been served with a copy of the final
report as provided in this section and the fiduciary or other officer of
the court administering the affairs of any such employer shall have
been discharged and the fiduciary's or other officer's final report
approved, the commissioner may at any time within one (1) year
from the date upon which such final report was approved file a
petition with the court alleging that there was not full compliance
with this section and the court, upon being satisfied that the
commissioner was not fully advised of the proceedings relative to the
filing and approval of the final report as provided in this section,
shall set aside its approval of said final report with the result that the
proceedings shall be reinstated as though no final report had been
filed in the first instance and shall proceed from that point in the
manner provided by law and not inconsistent with the provisions of
this section. (Formerly: Acts 1947, c.208, s.3320.) As amended by P.L.144-1986,
SEC.142; P.L.18-1987, SEC.91; P.L.21-1995, SEC.124;
P.L.290-2001, SEC.28.
IC 22-4-32-19 Adjustments or refunds; application; time limit
Sec. 19. (a) The department may grant an application for
adjustment or refund, make an adjustment or refund, or set off a
refund as follows:
(1) Not later than four (4) years after the date upon which any
contributions or interest thereon were paid, an employing unit
which has paid such contributions or interest thereon may make
application for an adjustment or a refund of such contributions
or an adjustment thereon in connection with subsequent
contribution payments. The department shall thereupon
determine whether or not such contribution or interest or any
portion thereof, was erroneously paid or wrongfully assessed.
(2) The department may grant such application in whole or in
part and may make an adjustment, without interest, in
connection with subsequent contribution payments or refund
such amounts, without interest, from the fund. Adjustments or
refund may be made on the commissioner's own initiative.
(3) Any adjustments or refunds of interest or penalties collected
for contributions due under IC 22-4-10-1 shall be charged to
and paid from the special employment and training services
fund created by IC 22-4-25.
(4) The department may set off any refund available to an
employer under this section against any delinquent
contributions, payments in lieu of contributions, and the interest
and penalties, if any, related to the delinquent payments and
assessments.
(b) Any decision by the department to:
(1) grant an application for adjustment or refund;
(2) make an adjustment or refund on its own initiative; or
(3) set off a refund;
constitutes the initial determination referred to in section 4 of this
chapter and is subject to hearing and review as provided in sections
1 through 15 of this chapter.
(c) If any assessment has become final by virtue of a decision of
a liability administrative law judge with the result that no proceeding
for judicial review as provided in this article was instituted, no
refund or adjustment with respect to such assessment shall be made. (Formerly: Acts 1947, c.208, s.3321; Acts 1967, c.310, s.23.) As
amended by P.L.144-1986, SEC.143; P.L.18-1987, SEC.92;
P.L.135-1990, SEC.35; P.L.21-1995, SEC.125; P.L.290-2001,
SEC.29; P.L.202-2005, SEC.6; P.L.108-2006, SEC.60;
P.L.175-2009, SEC.41.
IC 22-4-32-20 Contributions; penalties; personal liability of employer
Sec. 20. The contributions, penalties, and interest due from any
employer under the provisions of this article from the time they shall
be due shall be a personal liability of the employer to and for the
benefit of the fund and the employment and training services
administration fund. (Formerly: Acts 1947, c.208, s.3322.) As amended by P.L.144-1986,
SEC.144; P.L.18-1987, SEC.93; P.L.290-2001, SEC.30;
P.L.175-2009, SEC.42.
IC 22-4-32-21 Successor employer; notice of purchase; liability for contributions;
liens
Sec. 21. (a) Any individual, group of individuals, or other legal
entity, whether or not an employing unit which acquires all or part of
the organization, trade, or business within this state of an employer
or which acquires all or part of the assets of such organization, trade
or business, shall notify the commissioner in writing by registered
mail not later than five (5) days prior to the acquisition.
(b) Unless such notice is given, the commissioner shall have the
right to proceed against either the predecessor or successor, in
personam or in rem, for the collection of contributions and interest
due or accrued and unpaid by the predecessor, as of the date of such
acquisition, and the amount of such liability shall, in addition, be a
lien against the property or assets so acquired which shall be prior to
all other liens. However, the lien shall not be valid as against one
who acquires from the successor any interest in the property or assets
in good faith, for value and without notice of the lien.
(c) On written request after the acquisition is completed, the
commissioner shall furnish the successor with a written statement of
the amount of contributions and interest due or accrued and unpaid
by the predecessor as of the date of such acquisition, and the liability
of the successor and the amount of the lien shall in no event exceed
the reasonable value of the property or assets acquired by the
successor from the predecessor or the amount disclosed by such
statement, whichever is the lesser.
(d) The remedies prescribed by this section are in addition to all
other existing remedies against the predecessor or successor. (Formerly: Acts 1947, c.208, s.3323; Acts 1951, c.295, s.24 1/2.) As
amended by P.L.18-1987, SEC.94; P.L.5-1988, SEC.114;
P.L.21-1995, SEC.126.
IC 22-4-32-22
Repealed
(Repealed by P.L.107-1987, SEC.50.)
IC 22-4-32-23 Dissolution, liquidation, or withdrawal of corporation; notification;
clearance
Sec. 23. (a) As used in this section:
(1) "Dissolution" refers to dissolution of a corporation under
IC 23-1-45 through IC 23-1-48 or dissolution under Indiana law
of an association, a joint venture, an estate, a partnership, a
limited liability partnership, a limited liability company, a joint
stock company, or an insurance company (referred to as a
"noncorporate entity" in this section).
(2) "Liquidation" means the operation or act of winding up a
corporation's or entity's affairs, when normal business activities
have ceased, by settling its debts and realizing upon and
distributing its assets.
(3) "Withdrawal" refers to the withdrawal of a foreign
corporation from Indiana under IC 23-1-50.
(b) The officers and directors of a corporation effecting
dissolution, liquidation, or withdrawal or the appropriate individuals
of a noncorporate entity shall do the following:
(1) File all necessary documents with the department in a timely
manner as required by this article.
(2) Make all payments of contributions to the department in a
timely manner as required by this article.
(3) File with the department a form of notification within thirty
(30) days of the adoption of a resolution or plan. The form of
notification shall be prescribed by the department and may
require information concerning:
(A) the corporation's or noncorporate entity's assets;
(B) the corporation's or noncorporate entity's liabilities;
(C) details of the plan or resolution;
(D) the names and addresses of corporate officers, directors,
and shareholders or the noncorporate entity's owners,
members, or trustees;
(E) a copy of the minutes of the shareholders' meeting or the
noncorporate entity's meeting at which the plan or resolution
was formally adopted; and
(F) such other information as the board may require.
The commissioner may accept, in lieu of the department's form
of notification, a copy of Form 966 that the corporation filed
with the Internal Revenue Service.
(c) Unless a clearance is issued under subsection (g), for a period
of one (1) year following the filing of the form of notification with
the department, the corporate officers and directors of a corporation
and the chief executive of a noncorporate entity remain personally
liable, subject to IC 23-1-35-1(e), for any acts or omissions that
result in the distribution of corporate or noncorporate entity assets in
violation of the interests of the state. An officer or director of a
corporation or a chief executive of a noncorporate entity held liable
for an unlawful distribution under this subsection is entitled to
contribution:
(1) from every other director who voted for or assented to the
distribution, subject to IC 23-1-35-1(e); and
(2) from each shareholder, owner, member, or trustee for the
amount the shareholder, owner, member, or trustee accepted.
(d) The corporation's officers' and directors' and the noncorporate
entity's chief executive's personal liability includes all contributions,
penalties, interest, and fees associated with the collection of the
liability due the department. In addition to the penalties provided
elsewhere in this article, a penalty of up to thirty percent (30%) of
the unpaid contributions and skills 2016 training assessments may be
imposed on the corporate officers and directors and the noncorporate
entity's chief executive for failure to take reasonable steps to set
aside corporate assets to meet the liability due the department.
(e) If the department fails to begin a collection action against a
corporate officer or director or a noncorporate entity's chief
executive within one (1) year after the filing of a completed form of
notification with the department, the personal liability of the
corporate officer or director or noncorporate entity's chief executive
expires. The filing of a substantially blank form of notification or a
form containing misrepresentation of material facts does not
constitute filing a form of notification for the purpose of determining
the period of personal liability of the officers and directors of the
corporation or the chief executive of the noncorporate entity.
(f) In addition to the remedies contained in this section, the
department is entitled to pursue corporate assets that have been
distributed to shareholders or noncorporate entity assets that have
been distributed to owners, members, or beneficiaries, in violation of
the interests of the state. The election to pursue one (1) remedy does
not foreclose the state's option to pursue other legal remedies.
(g) The department may issue a clearance to a corporation or
noncorporate entity effecting dissolution, liquidation, or withdrawal
if:
(1) the:
(A) officers and directors of the corporation have; or
(B) chief executive of the noncorporate entity has;
met the requirements of subsection (b); and
(2) request for the clearance is made in writing by the officers
and directors of the corporation or chief executive of the
noncorporate entity within thirty (30) days after the filing of the
form of notification with the department.
(h) The issuance of a clearance by the department under
subsection (g) releases the officers and directors of a corporation and
the chief executive of a noncorporate entity from personal liability
under this section. As added by P.L.107-1987, SEC.2. Amended by P.L.21-1995,
SEC.127; P.L.290-2001, SEC.31; P.L.1-2002, SEC.93;
P.L.175-2009, SEC.43.
IC 22-4-32-24 Notices
Sec. 24. (a) This section applies to notices given under sections 4,
7, 8, and 9 of this chapter.
(b) As used in this section, "notices" includes mailings pertaining
to:
(1) the assessment of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) successorships and related matters arising from
successorships;
(4) claims for refunds and adjustments;
(5) violations under IC 22-4-11.5;
(6) decisions; and
(7) notices of intention to appeal or seek judicial review.
(c) If a notice under this chapter is served through the United
States Postal Service, three (3) days must be added to a period that
commences upon service of that notice.
(d) The filing of a document with the unemployment insurance
appeals division or review board is complete on the earliest of the
following dates that apply to the filing:
(1) The date on which the document is delivered to the
unemployment insurance appeals division or review board.
(2) The date of the postmark on the envelope containing the
document if the document is mailed to the unemployment
insurance appeals division or review board by the United States
Postal Service.
(3) The date on which the document is deposited with a private
carrier, as shown by a receipt issued by the carrier, if the
document is sent to the unemployment insurance appeals
division or review board by a private carrier. As added by P.L.135-1990, SEC.36. Amended by P.L.290-2001,
SEC.32; P.L.108-2006, SEC.61; P.L.175-2009, SEC.44.
