23-733

23-733. Transfer of employer experience rating
accounts to successor employer; liability of successor

A. When any employing unit in any manner succeeds to or acquires the organization,
trade or business, or substantially all of the assets thereof, excepting any assets
retained by such employer incident to the liquidation of his obligations, whether or not
such acquiring employing unit was an employer within the meaning of section 23-613, prior
to such acquisition, and continues such organization, trade or business, the account of
the predecessor employer shall be transferred as of the date of acquisition to the
successor employer for the purpose of rate determination.

B. An employing unit which succeeds to or acquires a distinct and severable portion
of an organization, trade or business may apply for transfer of the account of the
portion by filing with the department not later than one hundred eighty days after the
date of acquisition a written application for transfer, approved in writing by the
predecessor, except that for good cause shown the department may extend the time for
filing the application. The account of the acquired portion shall be transferred to the
successor as of the date of acquisition only if the successor continues to operate the
acquired portion and submits necessary information establishing the separate identity of
the account within thirty days after the request for the necessary supporting payroll
information is mailed to the successor by the department, except that for good cause
shown the department may extend the time for submitting such supporting information. The
predecessor and successor employers shall be promptly notified of the determination made
upon the application which shall become final fifteen days after written notice thereof
is served personally or by certified mail addressed to the last known address of each
employing unit involved, unless within such time one of the parties files with the
department a written request for reconsideration. When timely request for
reconsideration is filed, a reconsidered determination shall be made. The reconsidered
determination shall become final fifteen days after written notice thereof is served
personally or by certified mail addressed to the last known address of each employing
unit involved, unless within such time one of the employing units involved files with the
department a written petition for hearing. When timely petition for hearing is filed,
the parties shall be afforded an opportunity for hearing and thereafter furnished with a
decision. The decision shall become final unless a petition for review is filed as
provided in section 23-672.

C. If the successor employer was an employer subject to this chapter prior to the
date of acquisition of an organization, trade or business, or substantially all of the
assets thereof, his rate of contributions for the remainder of the calendar year in which
the acquisition occurred shall be his rate as previously assigned for the calendar year
in which the acquisition occurred. If the successor was not an employer prior to the
date of acquisition, his rate for the remainder of the calendar year beginning on the
date of acquisition shall be the rate applicable to the predecessor employer or employers
for the calendar year in which the acquisition occurred, if there was only one
predecessor or there were only predecessors with identical rates. If the predecessor
rates were not identical, the successor's rate for the remainder of the calendar year
beginning on the date of acquisition shall be recomputed on the basis of the combined
accounts of the predecessors as of the computation date applicable to the calendar year
in which the acquisition occurred. When the account for a distinct and severable portion
has been transferred to a successor who was not an employer prior to the date of
acquisition, the rate of the successor for the remainder of the calendar year beginning
on the date of acquisition shall be computed as of the computation date applicable to
such calendar year, on the basis of the experience attributable to the acquired
portion. If the successor was an employer prior to the date of acquisition, his rate for
the remainder of the calendar year beginning on the date of acquisition shall be the rate
previously assigned to him for the calendar year in which the acquisition occurred. The
rate of the predecessor for the remainder of the calendar year beginning on the date of
acquisition shall be the rate previously assigned to him with respect to the calendar
year in which the acquisition occurred.

D. Any individual or organization, including the types of organizations described
in section 23-614, whether or not an employing unit, which in any manner acquires the
organization, trade or business, or substantially all of the assets thereof, shall be
liable, in an amount not to exceed the reasonable value, as determined by the department,
of the organization, trade, business or assets acquired, for any contributions, interest
and penalties due or accrued and unpaid by such predecessor employer, except that the
department may waive the successor's liability for such unpaid amounts if a determination
that the predecessor was subject to this chapter had not been made as provided in section
23-724 prior to the date of acquisition, and such liability on the part of the successor
would be against equity and good conscience.

E. The amount of liability of a successor employer for any contribution, interest
and penalties due or accrued and unpaid by his predecessor employer shall be a lien
against the property or assets so acquired which shall be prior to all other liens except
prior recorded realty mortgages, but 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. On written request, the department shall furnish
the successor with a written statement of the amount of contributions, interest and
penalties due or accrued and unpaid by the predecessor employer as of the date of such
acquisition, and the amount of the liability of the successor or the amount of the lien
shall in no event exceed the liability disclosed in such statement. The remedy provided
by this section shall be in addition to all other existing remedies against the
predecessor employer or his successor, and the lien against the successor may be
foreclosed as in other civil actions.