CHAPTER 32. EMPLOYER LIABILITY, RIGHTS, AND REMEDIES
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 matterspertaining to:
(1) the assessment of contributions, penalties, and interest;
(2) which accounts, if any, benefits paid, or finally ordered tobe 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 trainingassessments, or adjustments thereon in connection withsubsequent contribution payments and skills 2016 trainingassessments;
for which an employing unit has timely filed a protest under section4 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 liabilityadministrative law judge in accordance with this article and the rulesissued pursuant to this article, the liability administrative law judgeshall 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 ordocumentary evidence;
(4) take or cause depositions to be taken whenever the ends ofjustice would be served thereby;
(5) regulate the course of a hearing and the conduct of theparties;
(6) hold informal prehearing conferences for the settlement orsimplification of the issues by consent of the parties;
(7) examine or cause to have examined by order such parts ofthe books and records of the parties to a proceeding as relate tothe questions in dispute;
(8) dispose of procedural motions, requests for adjustment;
(9) continue any hearing upon his own motion, or uponapplication of any interested party for good cause shown; and
(10) make such interlocutory and final orders as are necessaryfor the resolving or determination of the issues arising in thecause.
(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 personrepresenting employer
Sec. 3. The proceedings before a liability administrative law judgeshall be conducted in accordance with such rules of practice andprocedure as the department may adopt under its rulemakingauthority under IC 22-4-18-1. Any person representing any interestedparty in the prosecution or defense of any proceedings before aliability administrative law judge must be admitted to practice law inthe courts of the state of Indiana, except that persons admitted topractice before the courts of other states may on special order bepermitted to appear in any proceeding before the liabilityadministrative law judge. This section shall not be construed toprohibit an interested party from electing to be heard in his owncause 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 theemploying unit, within which to protest in writing an initialdetermination 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 commissionerpromptly shall refer the written protest to the liability administrativelaw judge who shall set a date for a hearing before the liabilityadministrative law judge and notify the interested parties thereof byregistered mail. Unless such written protest is withdrawn, theliability administrative law judge, after affording the parties areasonable opportunity for a fair hearing, shall make findings andconclusions, and, on the basis thereof, affirm, modify, or reverse theinitial 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 includethe protesting employing unit, the commissioner, and any personappearing to the liability administrative law judge to be necessary orindispensable to the determination of the issues involved in thehearing.
(Formerly: Acts 1947, c.208, s.3306; Acts 1957, c.299, s.11.) Asamended 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 judgeshall as soon as practicable notify the interested parties in writing ofthe finding and decision of the liability administrative law judge,which shall become final thirty (30) days thereafter in the absence ofthe 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 atany time before the decision of the liability administrative law judgebecomes 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 determinationof said appeal. If an appeal from the decision of the liabilityadministrative law judge is not perfected within the time provided forby this article, no action or proceeding shall be further stayed.
(Formerly: Acts 1947, c.208, s.3308; Acts 1951, c.295, s.19.) Asamended 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 subsequentactions
Sec. 9. (a) Any decision of the liability administrative law judgeshall be conclusive and binding as to all questions of fact. Aninterested party to the dispute may, within thirty (30) days afternotice of intention to appeal as herein provided, appeal the decisionto the supreme court or the court of appeals solely for errors of lawunder the same terms and conditions as govern appeals in ordinarycivil actions.
(b) Any finding of fact, judgment, conclusion, or final order madeby a person with the authority to make findings of fact or law in anaction or proceeding under this article is not conclusive or bindingand shall not be used as evidence in a separate or subsequent actionor proceeding between an individual and the individual's present orprior employer in an action or proceeding brought before an
arbitrator, a court, or a judge of this state or the United Statesregardless of whether the prior action was between the same orrelated parties or involved the same facts.
(Formerly: Acts 1947, c.208, s.3309; Acts 1951, c.295, s.20.) Asamended 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 allproceedings had before the liability administrative law judge, and alltestimony shall be retained in a suitable media such as an audiorecording or a transcription by a court reporter. The liabilityadministrative law judge shall, at the timely written request of theappellant, have a transcript prepared of all the proceedings hadbefore the liability administrative law judge, which shall contain atranscript of all the testimony, together with all objections andrulings thereon, documents and papers introduced as evidence oroffered as evidence, and all rulings as to their admission intoevidence, which said transcript shall be certified by the liabilityadministrative law judge and shall constitute the record on appeal.
(Formerly: Acts 1947, c.208, s.3310; Acts 1951, c.295, s.21.) Asamended 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 todeposit with the department an amount sufficient to pay the actualcosts of preparing the transcript of the record of the proceedingsbefore the liability administrative law judge before preparing thesame.
(Formerly: Acts 1947, c.208, s.3311; Acts 1951, c.295, s.22.) Asamended 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 assignmentof errors. An assignment of errors that the decision of the liabilityadministrative law judge is contrary to law shall be sufficient topresent 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.) Asamended 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 thesupreme court or the court of appeals, shall be advanced upon thedocket of the court, and shall be determined without delay in the
order of priority. The supreme court or the court of appeals may inany such appeal remand the proceedings to the liabilityadministrative law judge for the taking of additional evidence, settingtime limits therefor, and ordering such additional evidence to becertified by the liability administrative law judge to the remandingcourt to be used in the determination of the cause.
(Formerly: Acts 1947, c.208, s.3313; Acts 1951, c.295, s.24.) Asamended 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 thecourt with respect to the assessment of any contributions, interest orpenalties, unless the court finds that the payment of such assessmentis secured by bond, deposit or otherwise as the court may approve.The bond shall be in such an amount necessary to insure the paymentof the assessment stayed, and court costs, if any, which may beincurred 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 assetspursuant to an order of any court under the laws of this stateincluding but not necessarily limited to any receivership, assignmentfor benefit of creditors, adjudicated insolvency, composition orsimilar proceeding, contributions then or thereafter due shall be paidin 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 administeringthe assets of any employer subject to the payment of contributionsunder this article and acting under the authority and supervision ofany court shall be allowed or approved by the court unless suchreport or account shows and the court finds that all contributions,interest, and penalties imposed by this article have been paidpursuant to this section, and that all contributions which may becomedue 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 beeffectively enforced and administered, it is the declared intention ofthe general assembly that in all cases of legal distributions anddissolutions the commissioner shall have actual notice before anyfiduciary administering the affairs of an employer subject to thepayment of contributions and skills 2016 training assessments underthis article may file the fiduciary's final report with the court underwhose authority and supervision such fiduciary acts. From and afterApril 1, 1947, no such final report shall be filed unless a copy thereofhas been served upon the commissioner by mailing a copy thereof byregistered mail to the commissioner at the commissioner's office inIndianapolis at least ten (10) days prior to the filing of the same withthe court. Such final report shall contain a statement that a copythereof was served in the manner provided in this section upon thecommissioner, and before such final report may be approved by thecourt there shall be filed in said cause a certificate from thecommissioner that this section has been fully complied with in theadministration of the affairs of said employer. In the event that thecommissioner shall not have been served with a copy of the finalreport as provided in this section and the fiduciary or other officer ofthe court administering the affairs of any such employer shall havebeen discharged and the fiduciary's or other officer's final reportapproved, the commissioner may at any time within one (1) yearfrom the date upon which such final report was approved file apetition with the court alleging that there was not full compliancewith this section and the court, upon being satisfied that thecommissioner was not fully advised of the proceedings relative to thefiling and approval of the final report as provided in this section,shall set aside its approval of said final report with the result that theproceedings shall be reinstated as though no final report had beenfiled in the first instance and shall proceed from that point in themanner provided by law and not inconsistent with the provisions ofthis 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 foradjustment or refund, make an adjustment or refund, or set off arefund as follows:
(1) Not later than four (4) years after the date upon which anycontributions or interest thereon were paid, an employing unitwhich has paid such contributions or interest thereon may makeapplication for an adjustment or a refund of such contributionsor an adjustment thereon in connection with subsequentcontribution payments. The department shall thereupondetermine 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 inpart and may make an adjustment, without interest, inconnection with subsequent contribution payments or refundsuch amounts, without interest, from the fund. Adjustments orrefund may be made on the commissioner's own initiative.
(3) Any adjustments or refunds of interest or penalties collectedfor contributions due under IC 22-4-10-1 shall be charged toand paid from the special employment and training servicesfund created by IC 22-4-25.
(4) The department may set off any refund available to anemployer under this section against any delinquentcontributions, payments in lieu of contributions, and the interestand penalties, if any, related to the delinquent payments andassessments.
(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 thischapter and is subject to hearing and review as provided in sections1 through 15 of this chapter.
(c) If any assessment has become final by virtue of a decision ofa liability administrative law judge with the result that no proceedingfor judicial review as provided in this article was instituted, norefund or adjustment with respect to such assessment shall be made.
(Formerly: Acts 1947, c.208, s.3321; Acts 1967, c.310, s.23.) Asamended 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 anyemployer under the provisions of this article from the time they shallbe due shall be a personal liability of the employer to and for thebenefit of the fund and the employment and training servicesadministration 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 legalentity, whether or not an employing unit which acquires all or part ofthe organization, trade, or business within this state of an employeror which acquires all or part of the assets of such organization, trade
or business, shall notify the commissioner in writing by registeredmail not later than five (5) days prior to the acquisition.
(b) Unless such notice is given, the commissioner shall have theright to proceed against either the predecessor or successor, inpersonam or in rem, for the collection of contributions and interestdue or accrued and unpaid by the predecessor, as of the date of suchacquisition, and the amount of such liability shall, in addition, be alien against the property or assets so acquired which shall be prior toall other liens. However, the lien shall not be valid as against onewho acquires from the successor any interest in the property or assetsin good faith, for value and without notice of the lien.
(c) On written request after the acquisition is completed, thecommissioner shall furnish the successor with a written statement ofthe amount of contributions and interest due or accrued and unpaidby the predecessor as of the date of such acquisition, and the liabilityof the successor and the amount of the lien shall in no event exceedthe reasonable value of the property or assets acquired by thesuccessor from the predecessor or the amount disclosed by suchstatement, whichever is the lesser.
(d) The remedies prescribed by this section are in addition to allother existing remedies against the predecessor or successor.
(Formerly: Acts 1947, c.208, s.3323; Acts 1951, c.295, s.24 1/2.) Asamended 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 underIC 23-1-45 through IC 23-1-48 or dissolution under Indiana lawof an association, a joint venture, an estate, a partnership, alimited liability partnership, a limited liability company, a jointstock company, or an insurance company (referred to as a"noncorporate entity" in this section).
(2) "Liquidation" means the operation or act of winding up acorporation's or entity's affairs, when normal business activitieshave ceased, by settling its debts and realizing upon anddistributing its assets.
(3) "Withdrawal" refers to the withdrawal of a foreigncorporation from Indiana under IC 23-1-50.
(b) The officers and directors of a corporation effectingdissolution, liquidation, or withdrawal or the appropriate individualsof a noncorporate entity shall do the following:
(1) File all necessary documents with the department in a timelymanner as required by this article. (2) Make all payments of contributions to the department in atimely 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 ofnotification shall be prescribed by the department and mayrequire 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 thenoncorporate entity's meeting at which the plan or resolutionwas formally adopted; and
(F) such other information as the board may require.
The commissioner may accept, in lieu of the department's formof notification, a copy of Form 966 that the corporation filedwith the Internal Revenue Service.
(c) Unless a clearance is issued under subsection (g), for a periodof one (1) year following the filing of the form of notification withthe department, the corporate officers and directors of a corporationand the chief executive of a noncorporate entity remain personallyliable, subject to IC 23-1-35-1(e), for any acts or omissions thatresult in the distribution of corporate or noncorporate entity assets inviolation of the interests of the state. An officer or director of acorporation or a chief executive of a noncorporate entity held liablefor an unlawful distribution under this subsection is entitled tocontribution:
(1) from every other director who voted for or assented to thedistribution, subject to IC 23-1-35-1(e); and
(2) from each shareholder, owner, member, or trustee for theamount the shareholder, owner, member, or trustee accepted.
(d) The corporation's officers' and directors' and the noncorporateentity's chief executive's personal liability includes all contributions,penalties, interest, and fees associated with the collection of theliability due the department. In addition to the penalties providedelsewhere in this article, a penalty of up to thirty percent (30%) ofthe unpaid contributions and skills 2016 training assessments may beimposed on the corporate officers and directors and the noncorporateentity's chief executive for failure to take reasonable steps to setaside corporate assets to meet the liability due the department.
(e) If the department fails to begin a collection action against acorporate officer or director or a noncorporate entity's chiefexecutive within one (1) year after the filing of a completed form ofnotification with the department, the personal liability of thecorporate officer or director or noncorporate entity's chief executiveexpires. The filing of a substantially blank form of notification or aform containing misrepresentation of material facts does notconstitute filing a form of notification for the purpose of determining
the period of personal liability of the officers and directors of thecorporation or the chief executive of the noncorporate entity.
(f) In addition to the remedies contained in this section, thedepartment is entitled to pursue corporate assets that have beendistributed to shareholders or noncorporate entity assets that havebeen distributed to owners, members, or beneficiaries, in violation ofthe interests of the state. The election to pursue one (1) remedy doesnot foreclose the state's option to pursue other legal remedies.
(g) The department may issue a clearance to a corporation ornoncorporate entity effecting dissolution, liquidation, or withdrawalif:
(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 officersand directors of the corporation or chief executive of thenoncorporate entity within thirty (30) days after the filing of theform of notification with the department.
(h) The issuance of a clearance by the department undersubsection (g) releases the officers and directors of a corporation andthe chief executive of a noncorporate entity from personal liabilityunder 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 pertainingto:
(1) the assessment of contributions, penalties, and interest;
(2) the transfer of charges from an employer's account;
(3) successorships and related matters arising fromsuccessorships;
(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 UnitedStates Postal Service, three (3) days must be added to a period thatcommences upon service of that notice.
(d) The filing of a document with the unemployment insuranceappeals division or review board is complete on the earliest of thefollowing dates that apply to the filing:
(1) The date on which the document is delivered to theunemployment 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 unemploymentinsurance appeals division or review board by the United StatesPostal Service.
(3) The date on which the document is deposited with a privatecarrier, as shown by a receipt issued by the carrier, if thedocument is sent to the unemployment insurance appealsdivision 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.