Chapter DWD 113

DWD 113.025(1)(d) (d) The employer was determined within the last year to be subject to ch. 108, Stats., or has a history of timely filing required reports, including wage and contribution reports, and of making payments in a timely manner.

DWD 113.025(1)(e) (e) The employer or a business for which the employer is a successor, under the requirements of s. 108.16 (8), Stats., has never received a waiver or decrease in interest charged under s. 108.22 (1) (a) or 108.17 (2c) (c), Stats.

DWD 113.025(1)(f) (f) There has not been a hearing on an appeal under s. 108.10, Stats., regarding the tax liability associated with the interest.

DWD 113.025(2) (2) If all of the conditions of sub. (1) are satisfied, the department may waive or decrease the interest charged under s. 108.22 (1) (a) or 108.17 (2c) (c), Stats., if the interest charged resulted from any of the following circumstances:

DWD 113.025(2)(a) (a) The employer failed to pay taxes or underpaid taxes by the required due date established by the department as a result of excusable neglect. An erroneous contention regarding the unemployment insurance law or misunderstanding of the obligations under the law shall not constitute excusable neglect.

DWD 113.025 Note Note: The following are examples of excusable neglect:

DWD 113.025 Note Embezzlement by an accountant or an employee who is not related to the employer such that the embezzlement caused the interest to be due.

DWD 113.025 Note Inaccurate written communication given to the employer by the Wisconsin Division of Unemployment Insurance that affirmatively misled the employer as to its duties and obligations such that the inaccurate written communication caused the interest to be due.

DWD 113.025(2)(b) (b) An inadvertent mathematical miscalculation by the employer of the amount of tax due resulting in a de minimis underpayment of taxes.

DWD 113.025(3) (3) A denial of a request for a waiver or decrease of interest under sub. (2) and s. 108.22 (1) (cm), Stats., is not an appealable decision.

DWD 113.025 History History: CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1) (c) to (f) Register May 2019 No. 761, eff. 6-1-19.

DWD 113.03 DWD 113.03 Compromise of employer liability.

DWD 113.03(1) (1) Under s. 108.10 (8), Stats., the department may compromise the liability of any employer as established in any final determination, decision or action, together with any subsequent collection costs, if all of the following apply:

DWD 113.03(1)(a) (a) The employer makes a sworn application for the compromise of the employer’s liability to the department, including a financial statement if requested, in a form prescribed by the department.

DWD 113.03(1)(b) (b) The employer is not a government unit.

DWD 113.03(1)(c) (c) The employer is not a debtor in a case under title 11 of the United States Code with respect to any liability under ch. 108, Stats., which is not dischargeable in bankruptcy unless any of the following apply:

DWD 113.03(1)(c)1. 1. In a case under chapter 7 of title 11 of the United States Code, there are insufficient assets to pay the liability in full under the statutory order of distribution.

DWD 113.03(1)(c)2. 2. In a case under chapter 11 or 12 of title 11 of the United States Code, the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the employer and there are insufficient assets to pay the liability.

DWD 113.03(1)(d) (d) If the employer is a nonprofit organization that incurred all or part of its liability when it was subject to reimbursement financing status under s. 108.151 (2), Stats., the employer’s assurance of reimbursement has either been applied to the liability or the application for compromise provides for such assurance.

DWD 113.03(1)(e) (e) The department finds that the employer is unable to pay the full amount of the contributions or payments in lieu of contributions, interest, penalties and costs. If the employer is still in the same business or operation as when the liability sought to be compromised was incurred, and all of the following apply:

DWD 113.03(1)(e)1. 1. The employer’s application for compromise offers payment in an amount not less than the unpaid contributions or unpaid payments in lieu of contributions, including any contributions owed as a successor under s. 108.16 (8) (f), Stats.

DWD 113.03(1)(e)2. 2. The required payment of all interest, penalties or costs would pose an immediate threat to the financial viability of the employer.

DWD 113.03(1)(e)3. 3. The employer is paying all current contributions or payments in lieu of contributions.

DWD 113.03(2) (2) If the conditions of sub. (1) are satisfied, the department shall determine the amount that the employer is able to pay and may issue an acceptance of the application for compromise in the determined amount.

DWD 113.03(3) (3) Notwithstanding sub. (1) (e), the department may compromise unpaid contributions on wages for domestic service arising under s. 108.02 (13) (d), Stats., for any time period before the effective date of the existence of a fiscal agent or fiscal intermediary under s. 46.272 (7) (e) or 47.035, Stats.

DWD 113.03(4) (4) Notwithstanding sub. (1) (e), in determining the amount of the accepted compromise, the department may consider the following:

DWD 113.03(4)(a) (a) A portion of any interest liability was incurred as a result of undue delay on the part of the department such that there is valid reason to compromise the interest liability.

DWD 113.03(4)(b) (b) In the opinion of the bureau of legal affairs, the employer could have raised valid legal defenses of estoppel or laches against the department.

DWD 113.03 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1), (3), (4) (intro.), (a), (b) Register May 2019 No. 761, eff. 6-1-19: correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register March 2023 No. 807.

DWD 113.04 DWD 113.04 Compromise of personal liability.

DWD 113.04(1) (1) The department may compromise the personal liability of a person whose liability for the unpaid contributions, interest, penalties and costs of an employer has been finally established under s. 108.22 (9), Stats., if all of the following apply:

DWD 113.04(1)(a) (a) The person submits a sworn application to the department for the compromise of the person’s liability, including a financial statement if requested, in a form prescribed by the department.

DWD 113.04(1)(b) (b) The person is not the debtor in a case under title 11 of the United States Code with respect to any liability under ch. 108, Stats., which is not dischargeable in bankruptcy unless any of the following apply:

DWD 113.04(1)(b)1. 1. In a case under chapter 7 of title 11 of the United States Code, there are insufficient assets to pay the liability in full under the statutory order of distribution.

DWD 113.04(1)(b)2. 2. In a case under chapter 11 or 12 of title 11 of the United States Code, the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the person and there are insufficient assets to pay the liability.

DWD 113.04(1)(c) (c) The department finds that the person is unable to pay the full amount of the liability.

DWD 113.04(2) (2) If the conditions of sub. (1) are satisfied, the department shall determine the amount that the person is able to pay and may issue an acceptance of the application for compromise in the determined amount.

DWD 113.04(3) (3) In making its finding that the person is unable to pay the full amount of the liability under sub. (1) (c) and its determination of the amount that the person is able to pay, the department shall consider the person’s present and prospective income.

DWD 113.04(4) (4) The department’s acceptance of a compromise under this section shall not affect the liability of any other person against which the department may issue or has issued a determination of liability for the unpaid contributions of the same employer.

DWD 113.04(5) (5) In an application for compromise under this section, a person liable or potentially liable at the time of application for the liabilities of more than one employer under s. 108.22 (9), Stats., shall disclose all such liabilities, including any liabilities which are not final. Failure to make such disclosure shall make the person ineligible for compromise of the undisclosed liability in any later application for compromise under this section.

DWD 113.04(6) (6) A person granted a compromise under this section shall not be eligible for a compromise of any liabilities incurred for tax periods after the acceptance of the compromise.

DWD 113.04 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1) to (6) Register May 2019 No. 761, eff. 6-1-19; correction in (1) (b) 2. made under s. 35.17, Stats., Register May 2019 No. 761.

DWD 113.05 DWD 113.05 General procedural provisions.

DWD 113.05(1) (1) The department may request additional information and may also examine the employer and any other person as it deems necessary, under oath, regarding the employer’s or person’s application.

DWD 113.05(2) (2) The department shall acknowledge in writing the receipt of an application for compromise within 30 days of such receipt. The department’s acceptance of the application for compromise shall be in writing and be issued with the concurrence of the treasurer of the unemployment insurance fund or the treasurer’s designee. The acceptance shall be effective only if the amount determined in the acceptance is paid to the department within 30 days from the date of the acceptance, except as otherwise provided under an installment arrangement under sub. (3). The department shall prescribe the payment form.

DWD 113.05(3) (3) The department may allow payment of the determined amount by installment payments upon such conditions as the department shall prescribe. In the event of failure to make any installment payment when due, which failure is not excused in writing by the department, the department may declare its acceptance of the application for compromise to be null and void and may proceed to collect the balance of the original liability using whatever remedies are available to it by law.

DWD 113.05(4) (4) The submission of an application for compromise shall not operate to stay collection proceedings. The department may defer collection during the pendency of an application if it is satisfied that the interests of the state will not be jeopardized.

DWD 113.05(5) (5) Frivolous or incomplete applications and applications submitted for the purpose of delaying collection of the liability shall be immediately rejected.

DWD 113.05 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1), (2), (4) Register May 2019 No. 761, eff. 6-1-19.

DWD 113.06 DWD 113.06 Disposition of warrants. Upon timely payment of the amount set forth in the department’s acceptance of compromise, the department shall issue a release of any outstanding warrant against the employer or person.

DWD 113.06 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 113.07 DWD 113.07 Reopening compromised liability. The department may declare a compromise void at any time if any of the following apply:

DWD 113.07(1) (1) The employer or person submitted a materially false application for compromise.

DWD 113.07(2) (2) Before the department accepted the application for compromise, the employer or person concealed or disposed of income or property which could have been used to pay any part of the original liability.

DWD 113.07 History History: Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.