44-717.Collection of employer payments;penalties and interest,past-due reports and payments; priorities; liens, enforcement; seizure andsale of property; procedure; refunds; cash deposit or bond; liability ofofficers and stockholders and members and managers of limited liabilitycompanies; electronic filing of wage reports, contribution returns andpayments; waiver of electronic filing.(a) (1) Penalties on past-due reports, interest on past-duecontributions, payments in lieu of contributions and benefit costpayments. Any employer or any officer or agent of an employer, who failsto file any wage report or contribution returnby the last day of the month following the close of each calendar quarter towhich they are relatedshall pay a penalty asprovided by this subsection (a) for each month or fraction of a month untilthe report or return is received by the secretary oflabor. The penalty for each month or fraction of a month shall be an amountequal to .05% of the total wages paid by the employer during the quarter,except that no penalty shall be less than $25 nor more than $200 for each suchreport or return not timely filed.Contributions and benefit cost payments unpaid by the lastday of the monthfollowing the last calendar quarter to which they are related and payments inlieu of contributions unpaid 30 days after the mailing of the statement ofbenefit charges, shall bearinterest at the rate of 1% permonth or fraction of a month until payment is received by the secretary oflabor except that an employing unit, which is nottheretofore subject to thislaw and which becomes an employer and does not refuse to make the reports,returns and contributions, payments in lieu of contributions and benefitcost payments required under this law, shall not be liable for suchpenalty or interest if the wage reports and contribution returnsrequired are filed and the contributions, payments in lieu ofcontributions or benefit cost payments required are paid within 10days following notification by the secretary oflabor that adetermination has been made fixing its status as an employer subject tothis law. Upon written request and good cause shown, the secretary oflabor may abate any penalty or interest orportion thereofprovided for by this subsection (a). Interest amounting to less than$5 shallbe waived by the secretary of labor and shall not becollected. Penalties and interest collected pursuant to this subsectionshall be paid into the special employment security fund. For all purposesunder this section, amounts assessed as surcharges under subsection (j)or under K.S.A. 44-710a, and amendments thereto, shall be consideredto be contributions and shall be subject to penalties and interest imposedunder this section and to collection in the manner provided by this section.For purposes of this subsection, a wage report, a contribution return,a contribution, a payment in lieu of contribution or a benefit cost payment isdeemed to be filed or paid as of the date it is placed in the UnitedStates mail.
(2) Notices of payment and reporting delinquency to Indian tribes or theirtribal units shall include information that failure to make full payment withinthe prescribed time frame:
(i) will cause the Indian tribe to be liable for taxes under FUTA;
(ii) will cause the Indian tribe to lose the option to make payments in lieuof contributions;
(iii) could cause the Indian tribe to be excepted from the definition of"employer," as provided in paragraph (h)(3) of K.S.A. 44-703, and amendmentsthereto, and services inthe employ of the Indian tribe, as provided in paragraph (i)(3)(E) of K.S.A.44-703, and amendments thereto, to be excepted from "employment."
(b) Collection. (1) If, after due notice, any employer defaultsin payment of any penalty, contributions, payments in lieu ofcontributions, benefit cost payments, or interest thereon the amount duemay be collected by civil action in the name of the secretary of laborand the employer adjudged in default shall pay thecost ofsuch action. Civil actions brought under this section to collectcontributions, payments in lieu of contributions, benefit cost payments,penalties, or interest thereon from an employer shall be heard by thedistrict court at the earliest possible date and shall be entitled topreference upon the calendar of the court over all other civil actionsexcept petitions for judicial review under this act and cases arisingunder the workmen's compensation act. All liabilitydeterminations of contributions due, payments in lieu of contributionsor benefit cost payments due shall be made within a period of five yearsfrom the date such contributions, payments in lieu of contributions orbenefit cost payments were due except such determinations may be madefor any time when an employer has filed fraudulent reports with intentto evade liability.
(2) Any employing unit which is not a resident of this state andwhich exercises the privilege of having one or more individuals performservice for it within this state and any resident employing unit whichexercises that privilege and thereafter removes from this state, shallbe deemed thereby to appoint the secretary of state as its agent andattorney for the acceptance of process in any civil action under thissubsection. In instituting such an action against any such employingunit the secretary of labor shall cause suchprocess ornotice to be filed with the secretary of state and such service shall besufficient service upon such employing unit and shall be of the sameforce and validity as if served upon it personally within this state.The secretary of labor shall send noticeimmediately of theservice of such process or notice, together with a copy thereof, byregistered or certified mail, return receipt requested, to such employingunit at itslast-known address and such return receipt, the affidavit of complianceof the secretary of labor with the provisions ofthis section,and a copy of the notice of service, shall be appended to the originalof the process filed in the court in which such civil action is pending.
(3) The district courts of this state shall entertain, in the mannerprovided in subsections (b)(1) and (b)(2),actions tocollect contributions, payments in lieu of contributions, benefit costpayments and other amounts owed including interest thereon for whichliability has accrued under the employment security law of any otherstate or of the federal government.
(c) Priorities under legal dissolutions or distributions. Inthe event of any distribution of employer's assets pursuant to an orderof any court under the laws of this state, including but not limited toany probate proceeding, interpleader, receivership,assignment for benefit of creditors, adjudicated insolvency,composition or similar proceedings, contributions or payments in lieuof contributions then or thereafter due shall be paid in full from the moneyswhich shall first come into the estate, prior to all other claims, exceptclaims for wages of not more than $250 to each claimant, earned within sixmonths of the commencement of the proceedings. In the event of anemployer's adjudication in bankruptcy, judicially confirmed extension proposal,or composition, under the federal bankruptcy act of 1898, as amended,contributions then or thereafter due shall be entitled to such priorityas is provided in that act for taxes due any state of the United States.
(d) Assessments. If any employer fails to file a report orreturn required by the secretary of labor for thedetermination of contributions, or payments in lieu of contributions, orbenefit cost payments, the secretary of labor may make suchreports or returns or cause the same to be made, on the basis of suchinformation as the secretary may be able to obtain and shall collectthe contributions, payments in lieu of contributions or benefit costpayments as determined together with any interest due under thisact. The secretary of labor shall immediatelyforward to theemployer a copy of the assessment by registered or certified mail to theemployer's address as it appears on the records of the agency, and suchassessment shall be final unless the employer protests such assessmentand files a corrected report or return for the period covered by theassessment within 15 days after the mailing of the copy ofassessment. Failure to receive such notice shall not invalidate theassessment. Notice in writing shall be presumed to have been given whendeposited as certified or registered matter in the United States mail,addressed to the person to be charged with notice at such person's addressas it appears on the records of the agency.
(e) (1) Lien. If any employer or person who is liable to paycontributions, payments in lieu of contributions or benefit costpayments neglects or refuses to pay the same after demand, the amount,including interest and penalty, shall be a lien in favor of the state ofKansas, secretary of labor, upon all property andrights to property,whether real or personal, belonging to such employer or person. Such lienshall not be valid as against any mortgagee, pledgee, purchaser or judgmentcreditor until notice thereof has been filed by the secretary of labor inthe office of register of deeds in any county inthe stateof Kansas, in which such property is located, and when so filed shall benotice to all persons claiming an interest in the property of theemployer or person against whom filed. The register of deeds shall enter suchnotices in the financing statement record and shall also record the samein full in miscellaneous record and index the same against the name ofthe delinquent employer. The register of deeds shall accept, file, andrecord such notice without prepayment of any fee, but lawful fees shallbe added to the amount of such lien and collected when satisfaction ispresented for entry. Such lien shall be satisfied of record upon thepresentation of a certificate of discharge by the state of Kansas,secretary of labor. Nothing contained in thissubsection (e) shall beconstrued as an invalidation of any lien or noticefiled in the name of the unemployment compensation division or theemployment security division and such liens shall be and remain in fullforce and effect until satisfied as provided by this subsection (e).
(2) Authority of secretary or authorized representative. Ifany employer or person who is liable to pay any contributions, payments in lieuof contributions or benefit cost payments, including interest and penalty,neglects or refuses to pay the same within 10 days after notice and demandtherefor, the secretary or the secretary's authorized representative maycollect such contributions, payments in lieu of contributions or benefitcost payments, including interest and penalty, and such further amount asis sufficient to cover the expenses of the levy, by levy upon all propertyand rights to property which belong to the employer or person or which have alien created thereon by this subsection (e) for the payment of suchcontributions, payments in lieu of contributions or benefit cost payments,including interest and penalty.As used in this subsection (e), "property" includes all real property andpersonal property, whether tangible or intangible, except such propertywhich is exempt under K.S.A. 60-2301 et seq. and amendmentsthereto. Levy may be made upon the accrued salary orwages of any officer, employee or elected official of any state or localgovernmental entity which is subject to K.S.A. 60-723, and amendmentsthereto, by serving a notice of levy as provided in subsection (d) ofK.S.A. 60-304 and amendments thereto.If the secretary or the secretary's authorized representative makes afinding that the collection of the amount of such contributions, paymentsin lieu of contributions or benefit cost payments, including interest andpenalty, is in jeopardy, notice and demand for immediate payment of suchamount may be made by the secretary or the secretary's authorizedrepresentative and, upon failureor refusal to pay such amount, immediate collection of such amount by levyshall be lawful without regard to the 10-day periodprovided in thissubsection (e).
(3) Seizure and sale of property. The authority to levygranted under this subsection (e) includes the power of seizure by any means. Alevy shall extend only to property possessed and obligations existing atthe time thereof. In any case in which the secretary or the secretary'sauthorized representative may levy upon property or rights to property, thesecretary or the secretary's authorized representative may seize and sell suchproperty or rights to property.
(4) Successive seizures. Whenever any property or right toproperty upon which levy has been made under this subsection (e) is notsufficient to satisfy the claim of the secretary for which levy is made,the secretary or the secretary's authorized representative may proceedthereafter and as often as may be necessary, to levy in like manner uponany other property or rights to property which belongs to the employeror person against whom such claim exists or upon which a lien is created bythis subsection (e) until the amount due from the employer or person, togetherwith all expenses, is fully paid.
(f) Warrant. In addition or as an alternative to any otherremedy provided by this section and provided that no appeal or otherproceeding for review permitted by this law shall then be pending andthe time for taking thereof shall have expired, the secretary of labor oran authorized representative of the secretary mayissue awarrant certifying the amount of contributions, payments in lieu ofcontributions, benefit cost payments, interest or penalty, and the nameof the employer liable for same after giving 15 days prior notice. Uponrequest, service of final notices shall be made by the sheriff within thesheriff's county, by the sheriff's deputy or some person speciallyappointed by the secretary for that purpose, or by thesecretary's designee. A person specially appointed by the secretary orthe secretary's designee to serve final notices may make service anyplace in the state. Final notices shall be served as follows:
(1) Individual. Service upon an individual, other than a minoror incapacitated person, shall be made by delivering a copy of the finalnotice to the individual personally or by leaving a copy at suchindividual's dwelling house or usual place of abode with some person ofsuitable age and discretion then residing therein, by leaving a copy atthe business establishment of the employer with an officer or employeeof the establishment, or by delivering a copy to an agent authorized byappointment or by law to receive service of process, but if the agent isone designated by a statute to receive service, such further notice asthe statute requires shall be given. If service as prescribed abovecannot be made with due diligence, the secretary or the secretary'sdesignee may order service to be made by leaving a copy of the finalnotice at the employer's dwelling house, usual place of abode orbusiness establishment.
(2) Corporations and partnerships. Service upon a domestic orforeign corporation or upon a partnership or other unincorporatedassociation, when by law it may be sued as such, shall be made bydelivering a copy of the final notice to an officer, partner or residentmanaging or general agent thereof by leaving a copy at any businessoffice of the employer with the person having charge thereof or bydelivering a copy to any other agent authorized by appointment orrequired by law to receive service of process, if the agent is oneauthorized by law to receive service and, if the law so requires, byalso mailing a copy to the employer.
(3) Refusal to accept service. In all cases when the person tobe served, or an agent authorized by such person to accept service ofpetitions and summonses, shall refuse to receive copies of the finalnotice, the offer of the duly authorized process server to delivercopies thereof and such refusal shall be sufficient service of such notice.
(4) Proof of service. (A) Every officer to whom a final noticeor other process shall be delivered for service within or without thestate, shall make return thereof in writing stating the time, place andmanner of service of such writ, and shall sign such officer'sname to such return.
(B) If service of the notice is made by a person appointed by thesecretary or the secretary's designee to make service, such person shall makean affidavit as to the time, place and manner of service thereof in aform prescribed by the secretary or the secretary's designee.
(5) Time for return. The officer or other person receiving afinal notice shall make a return of service promptly and shall send suchreturn to the secretary or the secretary's designee in any event within10 days after the service is effected. If the final notice cannotbe served it shall be returned to the secretary or the secretary'sdesignee within 30 days after the date of issue with astatement of the reason for the failure to serve the same. The originalreturn shall be attached to and filed with any warrant thereafter filed.
(6) Service by mail. (A) Upon direction of the secretary or thesecretary's designee, service by mail may be effected by forwarding acopy of the notice to the employer by registered or certified mail tothe employer's address as it appears on the records of the agency. Acopy of the return receipt shall be attached to and filed with anywarrant thereafter filed.
(B) The secretary of labor or an authorized representative ofthe secretary may file the warrant for record in the office of the clerkof the district court in the county in which the employer owingsuch contributions, payments in lieu of contributions, benefit cost payments,interest, or penalty has business property. The warrant shall certifythe amount of contributions, payments in lieu of contributions, benefitcost payments, interest and penalty due, and the name of the employerliable for such amount. It shall be the duty of the clerk of the districtcourt to file such warrant of record and enter the warrant in the recordsof the district court for judgment and decrees under the procedureprescribed for filing transcripts of judgment.
(C) The clerk shall enter, on the day the warrant is filed, the case onthe appearance docket, together with the amount and the time of filing thewarrant. From the time of filing such warrant, the amount of thecontributions, payments in lieu of contributions, benefit cost payments,interest, and penalty, certified therein, shall have the force and effectof a judgment of the district court until the same is satisfied by thesecretary of labor or an authorizedrepresentative or attorneyfor the secretary. Execution shall be issuable at the request of thesecretary of labor, an authorized representativeor attorney forthe secretary, as is provided in the case of other judgments.
(D) Postjudgment procedures shall be the same as for judgments accordingto the code of civil procedure.
(E) Warrants shall be satisfied of record by payment to the clerk of thedistrict court of the contributions, payments in lieu of contributions,benefit cost payments, penalty, interest to date, and court costs.Warrants may also be satisfied of record by payment to the clerk of thedistrict court of all court costs accrued in the case and by filing acertificate by the secretary of labor, certifying that thecontributions, payments in lieu of contributions, benefit cost payments,interest and penalty have been paid.
(g) Remedies cumulative. The foregoing remedies shall becumulative and no action taken shall be construed as an election on thepart of the state or any of its officers to pursue any remedy or actionunder this section to the exclusion of any other remedy or action for whichprovision is made.
(h) Refunds. If any individual, governmental entity ororganization makes application for refund or adjustment of any amountpaid as contributions, benefit cost payments or interest under this lawand the secretary of labor determines that suchamount or anyportion thereof was erroneously collected, except for amounts less than$5, the secretary of labor shall allow such individual ororganization to make an adjustment thereof, in connectionwith subsequent contribution payments, or if such adjustment cannot be madethe secretary of labor shall refund the amount, except foramounts less than $5, from the employment security fund,except that all interesterroneously collected which has been paid into the special employmentsecurity fund shall be refunded out of the special employment securityfund. No adjustment or refund shall be allowed with respect to apayment as contributions, benefit cost payments or interest unless anapplication therefor is made on or before whichever of thefollowing dates is later: (1) One year from the date on which suchpayment was made; or (2) three years from the last day of the periodwith respect to which such payment was made. For like cause and withinthe same period adjustment or refund may be so made on the secretary'sown initiative. The secretary of labor shallnot be requiredto refund any contributions, payments in lieu of contributions orbenefit cost payments based upon wages paid which have been used asbase-period wages in a determination of a claimant's benefit rights whenjustifiable and correct payments have been made to the claimant as theresult of such determination.For all taxable years commencing after December 31, 1997, interest at therate prescribed in K.S.A. 79-2968, and amendments thereto, shall beallowed on acontribution or benefit cost payment which the secretary has determined waserroneously collected pursuant to this section.
(i) (1) Cash deposit or bond. If any contributing employeris delinquent in making payments under the employment security law duringany two quarters of the most recent four-quarter period, the secretary orthe secretary's authorized representative shallhave the discretionary power to require such contributing employer eitherto deposit cash or to file a bond with sufficient sureties to guaranteethe payment of contributions, penalty and interest owed by such employer.
(2) The amount of such cash deposit or bond shall be not less than thelargest total amount of contributions, penalty and interest reported bythe employer in two of the four calendar quarters preceding any delinquency.Such cash deposit or bond shall be required until the employer has showntimely filing of reports and payment of contributions for four consecutivecalendar quarters.
(3) Failure to file such cash deposit or bond shall subject the employerto a surcharge of 2.0% which shall be in addition to the rateof contributions assigned to the employer under K.S.A. 44-710a and amendmentsthereto. Contributions paid as a result of this surcharge shall not becredited to the employer's experience rating account. This surchargeshall be effective during the next full calendar year after its impositionand during each full calendar year thereafter until the employer has filedthe required cash deposit or bond or has shown timely filing of reportsand payment of contributions for four consecutive calendar quarters.
(j) Any officer, major stockholder or other person who hascharge ofthe affairs of an employer, which is an employing unit described in section501(c)(3) of the federal internal revenue code of 1954 or which is any othercorporate organization or association, or any member or manager of a limitedliability company, or any public official, who willfullyfails to pay the amount of contributions, payments in lieu of contributionsor benefit cost payments required to be paid under the employment securitylaw on the date on which such amount becomes delinquent, shall be personallyliable for the total amount of the contributions, payments in lieu ofcontributionsor benefit cost payments and any penalties and interest due and unpaid bysuch employing unit. The secretary or the secretary's authorized representativemay assess such person for the total amount of contributions, payments inlieu of contributions or benefit cost payments and any penalties, and interestcomputed as due and owing. With respect to such persons and such amountsassessed, the secretary shall have available all of the collection remediesauthorized or provided by this section.
(k) Electronic filing of wage report and contribution return andelectronic payment ofcontributions, benefit cost payments or reimbursing payments. Thefollowing employers or thirdparty administrators shall file all wage reports and contribution returns andmake payment ofcontributions, benefit cost payments or reimbursing payments electronically asfollows:
(1) Wage reports, contribution returns and payments due after June 30, 2008,for those employerswith 250 or more employees or third party administrators with 250 or moreclient employees atthe time such filing or payment is first due;
(2) wage reports, contribution returns and payments due after June 30, 2009,for those employerswith 100 or more employees or third party administrators with 100 or moreclient employees atthe time such filing or payment is first due; and
(3) wage reports, contribution returns and payments due after June 30, 2010,for thosethird party administrators with 50 or more clientemployees at thetime such filing or payment is first due.
The requirements of this subsection may be waived by the secretary for anemployer if theemployer demonstrates a hardship in complying with this subsection.
44-717.Collection of employer payments;penalties and interest,past-due reports and payments; priorities; liens, enforcement; seizure andsale of property; procedure; refunds; cash deposit or bond; liability ofofficers and stockholders and members and managers of limited liabilitycompanies; electronic filing of wage reports, contribution returns andpayments; waiver of electronic filing.(a) (1) Penalties on past-due reports, interest on past-duecontributions, payments in lieu of contributions and benefit costpayments. Any employer or any officer or agent of an employer, who failsto file any wage report or contribution returnby the last day of the month following the close of each calendar quarter towhich they are relatedshall pay a penalty asprovided by this subsection (a) for each month or fraction of a month untilthe report or return is received by the secretary oflabor. The penalty for each month or fraction of a month shall be an amountequal to .05% of the total wages paid by the employer during the quarter,except that no penalty shall be less than $25 nor more than $200 for each suchreport or return not timely filed.Contributions and benefit cost payments unpaid by the lastday of the monthfollowing the last calendar quarter to which they are related and payments inlieu of contributions unpaid 30 days after the mailing of the statement ofbenefit charges, shall bearinterest at the rate of 1% permonth or fraction of a month until payment is received by the secretary oflabor except that an employing unit, which is nottheretofore subject to thislaw and which becomes an employer and does not refuse to make the reports,returns and contributions, payments in lieu of contributions and benefitcost payments required under this law, shall not be liable for suchpenalty or interest if the wage reports and contribution returnsrequired are filed and the contributions, payments in lieu ofcontributions or benefit cost payments required are paid within 10days following notification by the secretary oflabor that adetermination has been made fixing its status as an employer subject tothis law. Upon written request and good cause shown, the secretary oflabor may abate any penalty or interest orportion thereofprovided for by this subsection (a). Interest amounting to less than$5 shallbe waived by the secretary of labor and shall not becollected. Penalties and interest collected pursuant to this subsectionshall be paid into the special employment security fund. For all purposesunder this section, amounts assessed as surcharges under subsection (j)or under K.S.A. 44-710a, and amendments thereto, shall be consideredto be contributions and shall be subject to penalties and interest imposedunder this section and to collection in the manner provided by this section.For purposes of this subsection, a wage report, a contribution return,a contribution, a payment in lieu of contribution or a benefit cost payment isdeemed to be filed or paid as of the date it is placed in the UnitedStates mail.
(2) Notices of payment and reporting delinquency to Indian tribes or theirtribal units shall include information that failure to make full payment withinthe prescribed time frame:
(i) will cause the Indian tribe to be liable for taxes under FUTA;
(ii) will cause the Indian tribe to lose the option to make payments in lieuof contributions;
(iii) could cause the Indian tribe to be excepted from the definition of"employer," as provided in paragraph (h)(3) of K.S.A. 44-703, and amendmentsthereto, and services inthe employ of the Indian tribe, as provided in paragraph (i)(3)(E) of K.S.A.44-703, and amendments thereto, to be excepted from "employment."
(b) Collection. (1) If, after due notice, any employer defaultsin payment of any penalty, contributions, payments in lieu ofcontributions, benefit cost payments, or interest thereon the amount duemay be collected by civil action in the name of the secretary of laborand the employer adjudged in default shall pay thecost ofsuch action. Civil actions brought under this section to collectcontributions, payments in lieu of contributions, benefit cost payments,penalties, or interest thereon from an employer shall be heard by thedistrict court at the earliest possible date and shall be entitled topreference upon the calendar of the court over all other civil actionsexcept petitions for judicial review under this act and cases arisingunder the workmen's compensation act. All liabilitydeterminations of contributions due, payments in lieu of contributionsor benefit cost payments due shall be made within a period of five yearsfrom the date such contributions, payments in lieu of contributions orbenefit cost payments were due except such determinations may be madefor any time when an employer has filed fraudulent reports with intentto evade liability.
(2) Any employing unit which is not a resident of this state andwhich exercises the privilege of having one or more individuals performservice for it within this state and any resident employing unit whichexercises that privilege and thereafter removes from this state, shallbe deemed thereby to appoint the secretary of state as its agent andattorney for the acceptance of process in any civil action under thissubsection. In instituting such an action against any such employingunit the secretary of labor shall cause suchprocess ornotice to be filed with the secretary of state and such service shall besufficient service upon such employing unit and shall be of the sameforce and validity as if served upon it personally within this state.The secretary of labor shall send noticeimmediately of theservice of such process or notice, together with a copy thereof, byregistered or certified mail, return receipt requested, to such employingunit at itslast-known address and such return receipt, the affidavit of complianceof the secretary of labor with the provisions ofthis section,and a copy of the notice of service, shall be appended to the originalof the process filed in the court in which such civil action is pending.
(3) The district courts of this state shall entertain, in the mannerprovided in subsections (b)(1) and (b)(2),actions tocollect contributions, payments in lieu of contributions, benefit costpayments and other amounts owed including interest thereon for whichliability has accrued under the employment security law of any otherstate or of the federal government.
(c) Priorities under legal dissolutions or distributions. Inthe event of any distribution of employer's assets pursuant to an orderof any court under the laws of this state, including but not limited toany probate proceeding, interpleader, receivership,assignment for benefit of creditors, adjudicated insolvency,composition or similar proceedings, contributions or payments in lieuof contributions then or thereafter due shall be paid in full from the moneyswhich shall first come into the estate, prior to all other claims, exceptclaims for wages of not more than $250 to each claimant, earned within sixmonths of the commencement of the proceedings. In the event of anemployer's adjudication in bankruptcy, judicially confirmed extension proposal,or composition, under the federal bankruptcy act of 1898, as amended,contributions then or thereafter due shall be entitled to such priorityas is provided in that act for taxes due any state of the United States.
(d) Assessments. If any employer fails to file a report orreturn required by the secretary of labor for thedetermination of contributions, or payments in lieu of contributions, orbenefit cost payments, the secretary of labor may make suchreports or returns or cause the same to be made, on the basis of suchinformation as the secretary may be able to obtain and shall collectthe contributions, payments in lieu of contributions or benefit costpayments as determined together with any interest due under thisact. The secretary of labor shall immediatelyforward to theemployer a copy of the assessment by registered or certified mail to theemployer's address as it appears on the records of the agency, and suchassessment shall be final unless the employer protests such assessmentand files a corrected report or return for the period covered by theassessment within 15 days after the mailing of the copy ofassessment. Failure to receive such notice shall not invalidate theassessment. Notice in writing shall be presumed to have been given whendeposited as certified or registered matter in the United States mail,addressed to the person to be charged with notice at such person's addressas it appears on the records of the agency.
(e) (1) Lien. If any employer or person who is liable to paycontributions, payments in lieu of contributions or benefit costpayments neglects or refuses to pay the same after demand, the amount,including interest and penalty, shall be a lien in favor of the state ofKansas, secretary of labor, upon all property andrights to property,whether real or personal, belonging to such employer or person. Such lienshall not be valid as against any mortgagee, pledgee, purchaser or judgmentcreditor until notice thereof has been filed by the secretary of labor inthe office of register of deeds in any county inthe stateof Kansas, in which such property is located, and when so filed shall benotice to all persons claiming an interest in the property of theemployer or person against whom filed. The register of deeds shall enter suchnotices in the financing statement record and shall also record the samein full in miscellaneous record and index the same against the name ofthe delinquent employer. The register of deeds shall accept, file, andrecord such notice without prepayment of any fee, but lawful fees shallbe added to the amount of such lien and collected when satisfaction ispresented for entry. Such lien shall be satisfied of record upon thepresentation of a certificate of discharge by the state of Kansas,secretary of labor. Nothing contained in thissubsection (e) shall beconstrued as an invalidation of any lien or noticefiled in the name of the unemployment compensation division or theemployment security division and such liens shall be and remain in fullforce and effect until satisfied as provided by this subsection (e).
(2) Authority of secretary or authorized representative. Ifany employer or person who is liable to pay any contributions, payments in lieuof contributions or benefit cost payments, including interest and penalty,neglects or refuses to pay the same within 10 days after notice and demandtherefor, the secretary or the secretary's authorized representative maycollect such contributions, payments in lieu of contributions or benefitcost payments, including interest and penalty, and such further amount asis sufficient to cover the expenses of the levy, by levy upon all propertyand rights to property which belong to the employer or person or which have alien created thereon by this subsection (e) for the payment of suchcontributions, payments in lieu of contributions or benefit cost payments,including interest and penalty.As used in this subsection (e), "property" includes all real property andpersonal property, whether tangible or intangible, except such propertywhich is exempt under K.S.A. 60-2301 et seq. and amendmentsthereto. Levy may be made upon the accrued salary orwages of any officer, employee or elected official of any state or localgovernmental entity which is subject to K.S.A. 60-723, and amendmentsthereto, by serving a notice of levy as provided in subsection (d) ofK.S.A. 60-304 and amendments thereto.If the secretary or the secretary's authorized representative makes afinding that the collection of the amount of such contributions, paymentsin lieu of contributions or benefit cost payments, including interest andpenalty, is in jeopardy, notice and demand for immediate payment of suchamount may be made by the secretary or the secretary's authorizedrepresentative and, upon failureor refusal to pay such amount, immediate collection of such amount by levyshall be lawful without regard to the 10-day periodprovided in thissubsection (e).
(3) Seizure and sale of property. The authority to levygranted under this subsection (e) includes the power of seizure by any means. Alevy shall extend only to property possessed and obligations existing atthe time thereof. In any case in which the secretary or the secretary'sauthorized representative may levy upon property or rights to property, thesecretary or the secretary's authorized representative may seize and sell suchproperty or rights to property.
(4) Successive seizures. Whenever any property or right toproperty upon which levy has been made under this subsection (e) is notsufficient to satisfy the claim of the secretary for which levy is made,the secretary or the secretary's authorized representative may proceedthereafter and as often as may be necessary, to levy in like manner uponany other property or rights to property which belongs to the employeror person against whom such claim exists or upon which a lien is created bythis subsection (e) until the amount due from the employer or person, togetherwith all expenses, is fully paid.
(f) Warrant. In addition or as an alternative to any otherremedy provided by this section and provided that no appeal or otherproceeding for review permitted by this law shall then be pending andthe time for taking thereof shall have expired, the secretary of labor oran authorized representative of the secretary mayissue awarrant certifying the amount of contributions, payments in lieu ofcontributions, benefit cost payments, interest or penalty, and the nameof the employer liable for same after giving 15 days prior notice. Uponrequest, service of final notices shall be made by the sheriff within thesheriff's county, by the sheriff's deputy or some person speciallyappointed by the secretary for that purpose, or by thesecretary's designee. A person specially appointed by the secretary orthe secretary's designee to serve final notices may make service anyplace in the state. Final notices shall be served as follows:
(1) Individual. Service upon an individual, other than a minoror incapacitated person, shall be made by delivering a copy of the finalnotice to the individual personally or by leaving a copy at suchindividual's dwelling house or usual place of abode with some person ofsuitable age and discretion then residing therein, by leaving a copy atthe business establishment of the employer with an officer or employeeof the establishment, or by delivering a copy to an agent authorized byappointment or by law to receive service of process, but if the agent isone designated by a statute to receive service, such further notice asthe statute requires shall be given. If service as prescribed abovecannot be made with due diligence, the secretary or the secretary'sdesignee may order service to be made by leaving a copy of the finalnotice at the employer's dwelling house, usual place of abode orbusiness establishment.
(2) Corporations and partnerships. Service upon a domestic orforeign corporation or upon a partnership or other unincorporatedassociation, when by law it may be sued as such, shall be made bydelivering a copy of the final notice to an officer, partner or residentmanaging or general agent thereof by leaving a copy at any businessoffice of the employer with the person having charge thereof or bydelivering a copy to any other agent authorized by appointment orrequired by law to receive service of process, if the agent is oneauthorized by law to receive service and, if the law so requires, byalso mailing a copy to the employer.
(3) Refusal to accept service. In all cases when the person tobe served, or an agent authorized by such person to accept service ofpetitions and summonses, shall refuse to receive copies of the finalnotice, the offer of the duly authorized process server to delivercopies thereof and such refusal shall be sufficient service of such notice.
(4) Proof of service. (A) Every officer to whom a final noticeor other process shall be delivered for service within or without thestate, shall make return thereof in writing stating the time, place andmanner of service of such writ, and shall sign such officer'sname to such return.
(B) If service of the notice is made by a person appointed by thesecretary or the secretary's designee to make service, such person shall makean affidavit as to the time, place and manner of service thereof in aform prescribed by the secretary or the secretary's designee.
(5) Time for return. The officer or other person receiving afinal notice shall make a return of service promptly and shall send suchreturn to the secretary or the secretary's designee in any event within10 days after the service is effected. If the final notice cannotbe served it shall be returned to the secretary or the secretary'sdesignee within 30 days after the date of issue with astatement of the reason for the failure to serve the same. The originalreturn shall be attached to and filed with any warrant thereafter filed.
(6) Service by mail. (A) Upon direction of the secretary or thesecretary's designee, service by mail may be effected by forwarding acopy of the notice to the employer by registered or certified mail tothe employer's address as it appears on the records of the agency. Acopy of the return receipt shall be attached to and filed with anywarrant thereafter filed.
(B) The secretary of labor or an authorized representative ofthe secretary may file the warrant for record in the office of the clerkof the district court in the county in which the employer owingsuch contributions, payments in lieu of contributions, benefit cost payments,interest, or penalty has business property. The warrant shall certifythe amount of contributions, payments in lieu of contributions, benefitcost payments, interest and penalty due, and the name of the employerliable for such amount. It shall be the duty of the clerk of the districtcourt to file such warrant of record and enter the warrant in the recordsof the district court for judgment and decrees under the procedureprescribed for filing transcripts of judgment.
(C) The clerk shall enter, on the day the warrant is filed, the case onthe appearance docket, together with the amount and the time of filing thewarrant. From the time of filing such warrant, the amount of thecontributions, payments in lieu of contributions, benefit cost payments,interest, and penalty, certified therein, shall have the force and effectof a judgment of the district court until the same is satisfied by thesecretary of labor or an authorizedrepresentative or attorneyfor the secretary. Execution shall be issuable at the request of thesecretary of labor, an authorized representativeor attorney forthe secretary, as is provided in the case of other judgments.
(D) Postjudgment procedures shall be the same as for judgments accordingto the code of civil procedure.
(E) Warrants shall be satisfied of record by payment to the clerk of thedistrict court of the contributions, payments in lieu of contributions,benefit cost payments, penalty, interest to date, and court costs.Warrants may also be satisfied of record by payment to the clerk of thedistrict court of all court costs accrued in the case and by filing acertificate by the secretary of labor, certifying that thecontributions, payments in lieu of contributions, benefit cost payments,interest and penalty have been paid.
(g) Remedies cumulative. The foregoing remedies shall becumulative and no action taken shall be construed as an election on thepart of the state or any of its officers to pursue any remedy or actionunder this section to the exclusion of any other remedy or action for whichprovision is made.
(h) Refunds. If any individual, governmental entity ororganization makes application for refund or adjustment of any amountpaid as contributions, benefit cost payments or interest under this lawand the secretary of labor determines that suchamount or anyportion thereof was erroneously collected, except for amounts less than$5, the secretary of labor shall allow such individual ororganization to make an adjustment thereof, in connectionwith subsequent contribution payments, or if such adjustment cannot be madethe secretary of labor shall refund the amount, except foramounts less than $5, from the employment security fund,except that all interesterroneously collected which has been paid into the special employmentsecurity fund shall be refunded out of the special employment securityfund. No adjustment or refund shall be allowed with respect to apayment as contributions, benefit cost payments or interest unless anapplication therefor is made on or before whichever of thefollowing dates is later: (1) One year from the date on which suchpayment was made; or (2) three years from the last day of the periodwith respect to which such payment was made. For like cause and withinthe same period adjustment or refund may be so made on the secretary'sown initiative. The secretary of labor shallnot be requiredto refund any contributions, payments in lieu of contributions orbenefit cost payments based upon wages paid which have been used asbase-period wages in a determination of a claimant's benefit rights whenjustifiable and correct payments have been made to the claimant as theresult of such determination.For all taxable years commencing after December 31, 1997, interest at therate prescribed in K.S.A. 79-2968, and amendments thereto, shall beallowed on acontribution or benefit cost payment which the secretary has determined waserroneously collected pursuant to this section.
(i) (1) Cash deposit or bond. If any contributing employeris delinquent in making payments under the employment security law duringany two quarters of the most recent four-quarter period, the secretary orthe secretary's authorized representative shallhave the discretionary power to require such contributing employer eitherto deposit cash or to file a bond with sufficient sureties to guaranteethe payment of contributions, penalty and interest owed by such employer.
(2) The amount of such cash deposit or bond shall be not less than thelargest total amount of contributions, penalty and interest reported bythe employer in two of the four calendar quarters preceding any delinquency.Such cash deposit or bond shall be required until the employer has showntimely filing of reports and payment of contributions for four consecutivecalendar quarters.
(3) Failure to file such cash deposit or bond shall subject the employerto a surcharge of 2.0% which shall be in addition to the rateof contributions assigned to the employer under K.S.A. 44-710a and amendmentsthereto. Contributions paid as a result of this surcharge shall not becredited to the employer's experience rating account. This surchargeshall be effective during the next full calendar year after its impositionand during each full calendar year thereafter until the employer has filedthe required cash deposit or bond or has shown timely filing of reportsand payment of contributions for four consecutive calendar quarters.
(j) Any officer, major stockholder or other person who hascharge ofthe affairs of an employer, which is an employing unit described in section501(c)(3) of the federal internal revenue code of 1954 or which is any othercorporate organization or association, or any member or manager of a limitedliability company, or any public official, who willfullyfails to pay the amount of contributions, payments in lieu of contributionsor benefit cost payments required to be paid under the employment securitylaw on the date on which such amount becomes delinquent, shall be personallyliable for the total amount of the contributions, payments in lieu ofcontributionsor benefit cost payments and any penalties and interest due and unpaid bysuch employing unit. The secretary or the secretary's authorized representativemay assess such person for the total amount of contributions, payments inlieu of contributions or benefit cost payments and any penalties, and interestcomputed as due and owing. With respect to such persons and such amountsassessed, the secretary shall have available all of the collection remediesauthorized or provided by this section.
(k) Electronic filing of wage report and contribution return andelectronic payment ofcontributions, benefit cost payments or reimbursing payments. Thefollowing employers or thirdparty administrators shall file all wage reports and contribution returns andmake payment ofcontributions, benefit cost payments or reimbursing payments electronically asfollows:
(1) Wage reports, contribution returns and payments due after June 30, 2008,for those employerswith 250 or more employees or third party administrators with 250 or moreclient employees atthe time such filing or payment is first due;
(2) wage reports, contribution returns and payments due after June 30, 2009,for those employerswith 100 or more employees or third party administrators with 100 or moreclient employees atthe time such filing or payment is first due; and
(3) wage reports, contribution returns and payments due after June 30, 2010,for thosethird party administrators with 50 or more clientemployees at thetime such filing or payment is first due.
The requirements of this subsection may be waived by the secretary for anemployer if theemployer demonstrates a hardship in complying with this subsection.
44-717.Collection of employer payments;penalties and interest,past-due reports and payments; priorities; liens, enforcement; seizure andsale of property; procedure; refunds; cash deposit or bond; liability ofofficers and stockholders and members and managers of limited liabilitycompanies; electronic filing of wage reports, contribution returns andpayments; waiver of electronic filing.(a) (1) Penalties on past-due reports, interest on past-duecontributions, payments in lieu of contributions and benefit costpayments. Any employer or any officer or agent of an employer, who failsto file any wage report or contribution returnby the last day of the month following the close of each calendar quarter towhich they are relatedshall pay a penalty asprovided by this subsection (a) for each month or fraction of a month untilthe report or return is received by the secretary oflabor. The penalty for each month or fraction of a month shall be an amountequal to .05% of the total wages paid by the employer during the quarter,except that no penalty shall be less than $25 nor more than $200 for each suchreport or return not timely filed.Contributions and benefit cost payments unpaid by the lastday of the monthfollowing the last calendar quarter to which they are related and payments inlieu of contributions unpaid 30 days after the mailing of the statement ofbenefit charges, shall bearinterest at the rate of 1% permonth or fraction of a month until payment is received by the secretary oflabor except that an employing unit, which is nottheretofore subject to thislaw and which becomes an employer and does not refuse to make the reports,returns and contributions, payments in lieu of contributions and benefitcost payments required under this law, shall not be liable for suchpenalty or interest if the wage reports and contribution returnsrequired are filed and the contributions, payments in lieu ofcontributions or benefit cost payments required are paid within 10days following notification by the secretary oflabor that adetermination has been made fixing its status as an employer subject tothis law. Upon written request and good cause shown, the secretary oflabor may abate any penalty or interest orportion thereofprovided for by this subsection (a). Interest amounting to less than$5 shallbe waived by the secretary of labor and shall not becollected. Penalties and interest collected pursuant to this subsectionshall be paid into the special employment security fund. For all purposesunder this section, amounts assessed as surcharges under subsection (j)or under K.S.A. 44-710a, and amendments thereto, shall be consideredto be contributions and shall be subject to penalties and interest imposedunder this section and to collection in the manner provided by this section.For purposes of this subsection, a wage report, a contribution return,a contribution, a payment in lieu of contribution or a benefit cost payment isdeemed to be filed or paid as of the date it is placed in the UnitedStates mail.
(2) Notices of payment and reporting delinquency to Indian tribes or theirtribal units shall include information that failure to make full payment withinthe prescribed time frame:
(i) will cause the Indian tribe to be liable for taxes under FUTA;
(ii) will cause the Indian tribe to lose the option to make payments in lieuof contributions;
(iii) could cause the Indian tribe to be excepted from the definition of"employer," as provided in paragraph (h)(3) of K.S.A. 44-703, and amendmentsthereto, and services inthe employ of the Indian tribe, as provided in paragraph (i)(3)(E) of K.S.A.44-703, and amendments thereto, to be excepted from "employment."
(b) Collection. (1) If, after due notice, any employer defaultsin payment of any penalty, contributions, payments in lieu ofcontributions, benefit cost payments, or interest thereon the amount duemay be collected by civil action in the name of the secretary of laborand the employer adjudged in default shall pay thecost ofsuch action. Civil actions brought under this section to collectcontributions, payments in lieu of contributions, benefit cost payments,penalties, or interest thereon from an employer shall be heard by thedistrict court at the earliest possible date and shall be entitled topreference upon the calendar of the court over all other civil actionsexcept petitions for judicial review under this act and cases arisingunder the workmen's compensation act. All liabilitydeterminations of contributions due, payments in lieu of contributionsor benefit cost payments due shall be made within a period of five yearsfrom the date such contributions, payments in lieu of contributions orbenefit cost payments were due except such determinations may be madefor any time when an employer has filed fraudulent reports with intentto evade liability.
(2) Any employing unit which is not a resident of this state andwhich exercises the privilege of having one or more individuals performservice for it within this state and any resident employing unit whichexercises that privilege and thereafter removes from this state, shallbe deemed thereby to appoint the secretary of state as its agent andattorney for the acceptance of process in any civil action under thissubsection. In instituting such an action against any such employingunit the secretary of labor shall cause suchprocess ornotice to be filed with the secretary of state and such service shall besufficient service upon such employing unit and shall be of the sameforce and validity as if served upon it personally within this state.The secretary of labor shall send noticeimmediately of theservice of such process or notice, together with a copy thereof, byregistered or certified mail, return receipt requested, to such employingunit at itslast-known address and such return receipt, the affidavit of complianceof the secretary of labor with the provisions ofthis section,and a copy of the notice of service, shall be appended to the originalof the process filed in the court in which such civil action is pending.
(3) The district courts of this state shall entertain, in the mannerprovided in subsections (b)(1) and (b)(2),actions tocollect contributions, payments in lieu of contributions, benefit costpayments and other amounts owed including interest thereon for whichliability has accrued under the employment security law of any otherstate or of the federal government.
(c) Priorities under legal dissolutions or distributions. Inthe event of any distribution of employer's assets pursuant to an orderof any court under the laws of this state, including but not limited toany probate proceeding, interpleader, receivership,assignment for benefit of creditors, adjudicated insolvency,composition or similar proceedings, contributions or payments in lieuof contributions then or thereafter due shall be paid in full from the moneyswhich shall first come into the estate, prior to all other claims, exceptclaims for wages of not more than $250 to each claimant, earned within sixmonths of the commencement of the proceedings. In the event of anemployer's adjudication in bankruptcy, judicially confirmed extension proposal,or composition, under the federal bankruptcy act of 1898, as amended,contributions then or thereafter due shall be entitled to such priorityas is provided in that act for taxes due any state of the United States.
(d) Assessments. If any employer fails to file a report orreturn required by the secretary of labor for thedetermination of contributions, or payments in lieu of contributions, orbenefit cost payments, the secretary of labor may make suchreports or returns or cause the same to be made, on the basis of suchinformation as the secretary may be able to obtain and shall collectthe contributions, payments in lieu of contributions or benefit costpayments as determined together with any interest due under thisact. The secretary of labor shall immediatelyforward to theemployer a copy of the assessment by registered or certified mail to theemployer's address as it appears on the records of the agency, and suchassessment shall be final unless the employer protests such assessmentand files a corrected report or return for the period covered by theassessment within 15 days after the mailing of the copy ofassessment. Failure to receive such notice shall not invalidate theassessment. Notice in writing shall be presumed to have been given whendeposited as certified or registered matter in the United States mail,addressed to the person to be charged with notice at such person's addressas it appears on the records of the agency.
(e) (1) Lien. If any employer or person who is liable to paycontributions, payments in lieu of contributions or benefit costpayments neglects or refuses to pay the same after demand, the amount,including interest and penalty, shall be a lien in favor of the state ofKansas, secretary of labor, upon all property andrights to property,whether real or personal, belonging to such employer or person. Such lienshall not be valid as against any mortgagee, pledgee, purchaser or judgmentcreditor until notice thereof has been filed by the secretary of labor inthe office of register of deeds in any county inthe stateof Kansas, in which such property is located, and when so filed shall benotice to all persons claiming an interest in the property of theemployer or person against whom filed. The register of deeds shall enter suchnotices in the financing statement record and shall also record the samein full in miscellaneous record and index the same against the name ofthe delinquent employer. The register of deeds shall accept, file, andrecord such notice without prepayment of any fee, but lawful fees shallbe added to the amount of such lien and collected when satisfaction ispresented for entry. Such lien shall be satisfied of record upon thepresentation of a certificate of discharge by the state of Kansas,secretary of labor. Nothing contained in thissubsection (e) shall beconstrued as an invalidation of any lien or noticefiled in the name of the unemployment compensation division or theemployment security division and such liens shall be and remain in fullforce and effect until satisfied as provided by this subsection (e).
(2) Authority of secretary or authorized representative. Ifany employer or person who is liable to pay any contributions, payments in lieuof contributions or benefit cost payments, including interest and penalty,neglects or refuses to pay the same within 10 days after notice and demandtherefor, the secretary or the secretary's authorized representative maycollect such contributions, payments in lieu of contributions or benefitcost payments, including interest and penalty, and such further amount asis sufficient to cover the expenses of the levy, by levy upon all propertyand rights to property which belong to the employer or person or which have alien created thereon by this subsection (e) for the payment of suchcontributions, payments in lieu of contributions or benefit cost payments,including interest and penalty.As used in this subsection (e), "property" includes all real property andpersonal property, whether tangible or intangible, except such propertywhich is exempt under K.S.A. 60-2301 et seq. and amendmentsthereto. Levy may be made upon the accrued salary orwages of any officer, employee or elected official of any state or localgovernmental entity which is subject to K.S.A. 60-723, and amendmentsthereto, by serving a notice of levy as provided in subsection (d) ofK.S.A. 60-304 and amendments thereto.If the secretary or the secretary's authorized representative makes afinding that the collection of the amount of such contributions, paymentsin lieu of contributions or benefit cost payments, including interest andpenalty, is in jeopardy, notice and demand for immediate payment of suchamount may be made by the secretary or the secretary's authorizedrepresentative and, upon failureor refusal to pay such amount, immediate collection of such amount by levyshall be lawful without regard to the 10-day periodprovided in thissubsection (e).
(3) Seizure and sale of property. The authority to levygranted under this subsection (e) includes the power of seizure by any means. Alevy shall extend only to property possessed and obligations existing atthe time thereof. In any case in which the secretary or the secretary'sauthorized representative may levy upon property or rights to property, thesecretary or the secretary's authorized representative may seize and sell suchproperty or rights to property.
(4) Successive seizures. Whenever any property or right toproperty upon which levy has been made under this subsection (e) is notsufficient to satisfy the claim of the secretary for which levy is made,the secretary or the secretary's authorized representative may proceedthereafter and as often as may be necessary, to levy in like manner uponany other property or rights to property which belongs to the employeror person against whom such claim exists or upon which a lien is created bythis subsection (e) until the amount due from the employer or person, togetherwith all expenses, is fully paid.
(f) Warrant. In addition or as an alternative to any otherremedy provided by this section and provided that no appeal or otherproceeding for review permitted by this law shall then be pending andthe time for taking thereof shall have expired, the secretary of labor oran authorized representative of the secretary mayissue awarrant certifying the amount of contributions, payments in lieu ofcontributions, benefit cost payments, interest or penalty, and the nameof the employer liable for same after giving 15 days prior notice. Uponrequest, service of final notices shall be made by the sheriff within thesheriff's county, by the sheriff's deputy or some person speciallyappointed by the secretary for that purpose, or by thesecretary's designee. A person specially appointed by the secretary orthe secretary's designee to serve final notices may make service anyplace in the state. Final notices shall be served as follows:
(1) Individual. Service upon an individual, other than a minoror incapacitated person, shall be made by delivering a copy of the finalnotice to the individual personally or by leaving a copy at suchindividual's dwelling house or usual place of abode with some person ofsuitable age and discretion then residing therein, by leaving a copy atthe business establishment of the employer with an officer or employeeof the establishment, or by delivering a copy to an agent authorized byappointment or by law to receive service of process, but if the agent isone designated by a statute to receive service, such further notice asthe statute requires shall be given. If service as prescribed abovecannot be made with due diligence, the secretary or the secretary'sdesignee may order service to be made by leaving a copy of the finalnotice at the employer's dwelling house, usual place of abode orbusiness establishment.
(2) Corporations and partnerships. Service upon a domestic orforeign corporation or upon a partnership or other unincorporatedassociation, when by law it may be sued as such, shall be made bydelivering a copy of the final notice to an officer, partner or residentmanaging or general agent thereof by leaving a copy at any businessoffice of the employer with the person having charge thereof or bydelivering a copy to any other agent authorized by appointment orrequired by law to receive service of process, if the agent is oneauthorized by law to receive service and, if the law so requires, byalso mailing a copy to the employer.
(3) Refusal to accept service. In all cases when the person tobe served, or an agent authorized by such person to accept service ofpetitions and summonses, shall refuse to receive copies of the finalnotice, the offer of the duly authorized process server to delivercopies thereof and such refusal shall be sufficient service of such notice.
(4) Proof of service. (A) Every officer to whom a final noticeor other process shall be delivered for service within or without thestate, shall make return thereof in writing stating the time, place andmanner of service of such writ, and shall sign such officer'sname to such return.
(B) If service of the notice is made by a person appointed by thesecretary or the secretary's designee to make service, such person shall makean affidavit as to the time, place and manner of service thereof in aform prescribed by the secretary or the secretary's designee.
(5) Time for return. The officer or other person receiving afinal notice shall make a return of service promptly and shall send suchreturn to the secretary or the secretary's designee in any event within10 days after the service is effected. If the final notice cannotbe served it shall be returned to the secretary or the secretary'sdesignee within 30 days after the date of issue with astatement of the reason for the failure to serve the same. The originalreturn shall be attached to and filed with any warrant thereafter filed.
(6) Service by mail. (A) Upon direction of the secretary or thesecretary's designee, service by mail may be effected by forwarding acopy of the notice to the employer by registered or certified mail tothe employer's address as it appears on the records of the agency. Acopy of the return receipt shall be attached to and filed with anywarrant thereafter filed.
(B) The secretary of labor or an authorized representative ofthe secretary may file the warrant for record in the office of the clerkof the district court in the county in which the employer owingsuch contributions, payments in lieu of contributions, benefit cost payments,interest, or penalty has business property. The warrant shall certifythe amount of contributions, payments in lieu of contributions, benefitcost payments, interest and penalty due, and the name of the employerliable for such amount. It shall be the duty of the clerk of the districtcourt to file such warrant of record and enter the warrant in the recordsof the district court for judgment and decrees under the procedureprescribed for filing transcripts of judgment.
(C) The clerk shall enter, on the day the warrant is filed, the case onthe appearance docket, together with the amount and the time of filing thewarrant. From the time of filing such warrant, the amount of thecontributions, payments in lieu of contributions, benefit cost payments,interest, and penalty, certified therein, shall have the force and effectof a judgment of the district court until the same is satisfied by thesecretary of labor or an authorizedrepresentative or attorneyfor the secretary. Execution shall be issuable at the request of thesecretary of labor, an authorized representativeor attorney forthe secretary, as is provided in the case of other judgments.
(D) Postjudgment procedures shall be the same as for judgments accordingto the code of civil procedure.
(E) Warrants shall be satisfied of record by payment to the clerk of thedistrict court of the contributions, payments in lieu of contributions,benefit cost payments, penalty, interest to date, and court costs.Warrants may also be satisfied of record by payment to the clerk of thedistrict court of all court costs accrued in the case and by filing acertificate by the secretary of labor, certifying that thecontributions, payments in lieu of contributions, benefit cost payments,interest and penalty have been paid.
(g) Remedies cumulative. The foregoing remedies shall becumulative and no action taken shall be construed as an election on thepart of the state or any of its officers to pursue any remedy or actionunder this section to the exclusion of any other remedy or action for whichprovision is made.
(h) Refunds. If any individual, governmental entity ororganization makes application for refund or adjustment of any amountpaid as contributions, benefit cost payments or interest under this lawand the secretary of labor determines that suchamount or anyportion thereof was erroneously collected, except for amounts less than$5, the secretary of labor shall allow such individual ororganization to make an adjustment thereof, in connectionwith subsequent contribution payments, or if such adjustment cannot be madethe secretary of labor shall refund the amount, except foramounts less than $5, from the employment security fund,except that all interesterroneously collected which has been paid into the special employmentsecurity fund shall be refunded out of the special employment securityfund. No adjustment or refund shall be allowed with respect to apayment as contributions, benefit cost payments or interest unless anapplication therefor is made on or before whichever of thefollowing dates is later: (1) One year from the date on which suchpayment was made; or (2) three years from the last day of the periodwith respect to which such payment was made. For like cause and withinthe same period adjustment or refund may be so made on the secretary'sown initiative. The secretary of labor shallnot be requiredto refund any contributions, payments in lieu of contributions orbenefit cost payments based upon wages paid which have been used asbase-period wages in a determination of a claimant's benefit rights whenjustifiable and correct payments have been made to the claimant as theresult of such determination.For all taxable years commencing after December 31, 1997, interest at therate prescribed in K.S.A. 79-2968, and amendments thereto, shall beallowed on acontribution or benefit cost payment which the secretary has determined waserroneously collected pursuant to this section.
(i) (1) Cash deposit or bond. If any contributing employeris delinquent in making payments under the employment security law duringany two quarters of the most recent four-quarter period, the secretary orthe secretary's authorized representative shallhave the discretionary power to require such contributing employer eitherto deposit cash or to file a bond with sufficient sureties to guaranteethe payment of contributions, penalty and interest owed by such employer.
(2) The amount of such cash deposit or bond shall be not less than thelargest total amount of contributions, penalty and interest reported bythe employer in two of the four calendar quarters preceding any delinquency.Such cash deposit or bond shall be required until the employer has showntimely filing of reports and payment of contributions for four consecutivecalendar quarters.
(3) Failure to file such cash deposit or bond shall subject the employerto a surcharge of 2.0% which shall be in addition to the rateof contributions assigned to the employer under K.S.A. 44-710a and amendmentsthereto. Contributions paid as a result of this surcharge shall not becredited to the employer's experience rating account. This surchargeshall be effective during the next full calendar year after its impositionand during each full calendar year thereafter until the employer has filedthe required cash deposit or bond or has shown timely filing of reportsand payment of contributions for four consecutive calendar quarters.
(j) Any officer, major stockholder or other person who hascharge ofthe affairs of an employer, which is an employing unit described in section501(c)(3) of the federal internal revenue code of 1954 or which is any othercorporate organization or association, or any member or manager of a limitedliability company, or any public official, who willfullyfails to pay the amount of contributions, payments in lieu of contributionsor benefit cost payments required to be paid under the employment securitylaw on the date on which such amount becomes delinquent, shall be personallyliable for the total amount of the contributions, payments in lieu ofcontributionsor benefit cost payments and any penalties and interest due and unpaid bysuch employing unit. The secretary or the secretary's authorized representativemay assess such person for the total amount of contributions, payments inlieu of contributions or benefit cost payments and any penalties, and interestcomputed as due and owing. With respect to such persons and such amountsassessed, the secretary shall have available all of the collection remediesauthorized or provided by this section.
(k) Electronic filing of wage report and contribution return andelectronic payment ofcontributions, benefit cost payments or reimbursing payments. Thefollowing employers or thirdparty administrators shall file all wage reports and contribution returns andmake payment ofcontributions, benefit cost payments or reimbursing payments electronically asfollows:
(1) Wage reports, contribution returns and payments due after June 30, 2008,for those employerswith 250 or more employees or third party administrators with 250 or moreclient employees atthe time such filing or payment is first due;
(2) wage reports, contribution returns and payments due after June 30, 2009,for those employerswith 100 or more employees or third party administrators with 100 or moreclient employees atthe time such filing or payment is first due; and
(3) wage reports, contribution returns and payments due after June 30, 2010,for thosethird party administrators with 50 or more clientemployees at thetime such filing or payment is first due.
The requirements of this subsection may be waived by the secretary for anemployer if theemployer demonstrates a hardship in complying with this subsection.
