The transferee is a legal representative or trustee in bankruptcy or receiver or trustee of a person, partnership, limited liability company, association or corporation, or guardian of the estate of a person, or legal representative of a deceased person.
The transferee has continued or resumed the business of the transferor, either in the same establishment or elsewhere, or the transferee has employed substantially the same employees as those the transferor had employed in connection with the business transferred.
The filing of a voluntary petition in bankruptcy by an employer or the filing of an involuntary petition in bankruptcy against an employer under 11 USC 1101
or the confirmation of a plan under 11 USC 1101
does not render the employer filing the petition or against whom the petition is filed a successor under par. (c)
Notwithstanding par. (b)
, if the business of an employer of a kind specified in par. (c) 1.
is transferred, the transferee is deemed a successor for purposes of this chapter if the transferee would have been a successor under par. (e)
but for the intervening existence of the successor employer under par. (c)
Notwithstanding par. (b)
, a transferee is deemed a successor for purposes of this chapter, if the department determines that all of the following conditions are satisfied:
At the time of business transfer, the transferor and the transferee are owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests. Without limitation by reason of enumeration, it is presumed unless shown to the contrary that the “same interest or interests" includes the spouse, child, or parent of the individual who owned, managed or controlled the business, or any combination of more than one of them.
The transferee has continued or resumed the business of the transferor, either in the same establishment or elsewhere; or the transferee has employed substantially the same employees as those the transferor had employed in connection with the business transferred.
If, after the transferee of a business has been deemed a successor under par. (e)
, the department determines that a substantial purpose of the transfer of the business was to obtain a reduced contribution rate, then the department shall treat the transfer as having no effect for purposes of this chapter and shall, retroactively to the date of the transfer, reassign to the transferor all aspects of the transferor's account experience and liability that had been assigned to the transferee, together with all aspects of the transferee's account experience related to the transferred business, and shall recompute the transferor's contribution rate as provided in par. (h)
The successor shall take over and continue the transferor's account, including its positive or negative balance and all other aspects of its experience under this chapter in proportion to the payroll assignable to the transferred business and the liability of the successor shall be proportioned to the extent of the transferred business. The transferor and the successor shall be jointly and severally liable for any amounts owed by the transferor to the fund and to the administrative account at the time of the transfer, but a successor under par. (c)
is not liable for the debts of the transferor except in the case of fraud or malfeasance.
If not already subject to this chapter, a successor shall become an employer subject to this chapter on the date of the transfer and shall become liable for contributions or payments in lieu of contributions, whichever is applicable, from and after that date, using the contribution rate assigned or assignable to the transferor on the date of transfer.
The department shall redetermine the contribution rate of a successor that is subject to this chapter immediately prior to the effective date of a transfer as of the applicable computation date effective for contributions payable beginning in the first calendar year following the date of the transfer of the business. The department shall thereafter redetermine the contribution rate whenever required by s. 108.18
. For the purposes of s. 108.18
, the department shall determine the experience under this chapter of the successor's account by allocating to the successor's account for each period in question the respective proportions of the transferor's payroll and benefits which the department determines to be properly assignable to the business transferred.
The account taken over by the successor shall remain liable with respect to accrued benefit and related rights based on employment in the transferred business, and all such employment is deemed employment performed for the successor.
Notwithstanding pars. (b)
, a transferee who is not subject to this chapter on the date of transfer of a business shall not be deemed a successor to the transferor if the department determines that the transfer occurred solely or primarily for the purpose of obtaining a lower contribution rate for the transferee than the rate that would otherwise apply if the transferee were deemed a new employer. In determining whether a business was transferred solely or primarily for the purpose of obtaining a lower contribution rate for the transferee than the rate that would otherwise apply, the department shall use objective factors, which may include the cost of acquiring the business, whether the transferee continued the business enterprise of the transferred business, the length of time that the business enterprise was continued, or whether a substantial number of new employees were hired for the performance of duties unrelated to the business activity conducted by the transferor prior to the transfer.
If not already subject to this chapter, a transferee that is not a successor shall become an employer subject to this chapter on the date of the transfer and shall become liable for contributions or payments in lieu of contributions, whichever is applicable, from and after that date.
Any time a business is transferred, as provided in par. (a)
, both the transferor and the transferee shall notify the department in writing of the transfer, within 30 days after the date of transfer; and both shall promptly submit to the department in writing such information as the department may request relating to the transfer.
A professional employer organization is not considered to be the successor to the employer account of its client under this section by virtue of engaging the prior employees of the client to perform services for the client under an employee leasing agreement.
See also ch. DWD 115
, Wis. adm. code.
If any person knowingly makes or attempts to make a false statement or representation to the department in connection with any investigation to determine whether an employer qualifies to be deemed a successor under par. (e)
or any other provision of this chapter for the purpose of determining the assignment of a contribution rate, or if any person knowingly advises another person to do so, including by willful evasion, nondisclosure, or misrepresentation, the person is subject to the following penalties:
If the person is an employer, then the department shall assign the employer the highest contribution rate assignable under this chapter for the year, during which the violation or attempted violation occurs and the 3 succeeding years, except that if the department assigns the employer the highest contribution rate for any such year under other provisions of this chapter or if the increase in the employer's contribution rate under this subdivision would be less than 2 percent on its payroll for any year, then the department shall increase the employer's contribution rate by 2 percent on its payroll for each year in which a penalty applies under this subdivision.
If the person is not an employer, the person may be required to forfeit not more than $5,000.
The department shall utilize uniform procedures to identify businesses that are transferred under this subsection.
Paragraphs (e) 1.
, and (m)
shall be interpreted and applied, insofar as possible, to meet the minimum requirements of any guidance issued by or regulations promulgated by the U.S. department of labor.
Consistently with 26 USC 3305
, relating to federal instrumentalities that are neither wholly nor partially owned by the United States nor otherwise specifically exempt from the tax imposed under 26 USC 3301
Any contributions required and paid under this chapter for any year by any such instrumentality, including any national bank, shall be refunded to that instrumentality in case this chapter is not certified with respect to such year under 26 USC 3304
No national banking association is required to comply with any provisions or requirements under this chapter, to the extent that such compliance would be contrary to 26 USC 3305
All money withdrawn from the fund shall be used solely in the payment of benefits, exclusive of expenses of administration, and for refunds of sums erroneously paid into the fund, for refund of a positive net balance in an employer's reimbursement account under ss. 108.15 (4)
, 108.151 (5)
, and 108.152 (4)
on request by the employer, for expenditures made pursuant to s. 108.161
and consistently with the federal limitations applicable to s. 108.161
, and for payment of fees and expenses for collection of overpayments resulting from fraud or failure to report earnings that are assessed by the U.S. secretary of the treasury and charged to the department under 26 USC 6402
Except as provided in s. 108.17 (3m)
, the department shall not pay any interest on any benefit payment or any refund, or collect any interest on any benefit overpayment.
The fund's treasurer may issue a substitute check to an employee to replace a check that is canceled under sub. (6) (e)
, if the employee makes application therefor within 6 years after the date of issue of the original check.
The fund's treasurer shall estimate at the end of each calendar quarter the earnings rate payable on the fund's bank balances and the earnings rate payable by the federal unemployment account under title XII of the Social Security Act (42 USC 1321
) for the following quarter. Based on these estimates, the treasurer shall pay for the cost of banking services incurred by the fund in the following quarter either by maintaining compensating bank balances or by payment for the services from the appropriation under s. 20.445 (1) (ne)
, whichever payment method is estimated to yield the highest net earnings for the fund.
If the secretary determines that employers in this state that are subject to a requirement to pay a federal unemployment tax might experience a lower tax rate if this state were to loan moneys to the fund under s. 20.002 (11) (b) 3m.
, the secretary shall request the secretary of administration to make one or more transfers to the fund in the amount required to maintain a favorable federal tax experience for employers. The secretary shall not request a transfer under this subsection if the outstanding balance of such transfers at the time of the request would exceed $50,000,000. Whenever the secretary determines that the balance of the fund permits repayment of a transfer, in whole or in part, without jeopardizing the ability of the department to continue to pay other liabilities and costs chargeable to the fund, the secretary shall repay the department of administration for the amount that the secretary determines is available for repayment. The secretary shall ensure that the timing of any repayment accords with federal requirements for ensuring a favorable tax experience for employers in this state.
History: 1971 c. 53
; 1973 c. 247
; 1975 c. 343
; 1977 c. 133
; 1979 c. 52
; 1979 c. 110
s. 60 (13)
; 1981 c. 36
; 1983 a. 8
; 1985 a. 17
; 1985 a. 29
; 1987 a. 27
; 1987 a. 38
; 1987 a. 255
; 1989 a. 56
; 1989 a. 77
; 1991 a. 89
; 1993 a. 112
; 1995 a. 118
; 1997 a. 39
; 1999 a. 15
; 2001 a. 35
; 2003 a. 197
; 2005 a. 86
; 2007 a. 59
; 2009 a. 287
; 2011 a. 198
; 2013 a. 20
; 2015 a. 55
; 2017 a. 157
; 2019 a. 185
; 2021 a. 231
; s. 35.17 correction in (9) (a) 1.
Whether an employee is potentially eligible for unemployment compensation benefits is immaterial in determining contribution or tax liability based on that employee's services. Hanmer v. ILHR Dept. 92 Wis. 2d 90
, 284 N.W.2d 587
In the case of a merger, the “time of business transfer" under sub. (8) (e) 1. refers to that point in time immediately prior to the effective date of the merger. First Federal Savings Bank v. LIRC, 200 Wis. 2d 786
, 547 N.W.2d 796
(Ct. App. 1996), 95-2158
Assuming, without deciding, that a Chapter 11 bankruptcy reorganization resulted in a “transfer" under sub. (8) (a), the reorganized company in this case was mandatory successor under sub. (8) (e) 1. Sub. (8) (e) 1. broadly refers to whether an employer is “owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests." Given this broad language and a company's retention of 6 of its 8 officers, including its chief operating officer and corporate controller, LIRC reasonably determined that the company was “managed ... in substantial part ... directly ... by the same ... interests" as before its reorganization. Neenah Foundry Co. v. LIRC, 2015 WI App 18
, 360 Wis. 2d 459
, 860 N.W.2d 524
Sub. (8) (b) 4. requires a transferee to satisfy the Department of Workforce Development that the transferee's application was late as a result of excusable neglect. Nothing in the plain language of the statute requires the department to consider the interests of justice when analyzing excusable neglect. Excusable neglect means that neglect which might have been the act of a reasonably prudent person under the same circumstances. It is not synonymous with neglect, carelessness, or inattentiveness. Friendly Village Nursing & Rehab, LLC v. DWD, 2021 WI App 9
, 395 Wis. 2d 701
, 954 N.W.2d 392
Federal administrative financing account. 108.161(1)(1)
The fund's treasurer shall maintain within the fund an employment security “federal administrative financing account", and shall credit thereto all amounts credited to the fund pursuant to the federal employment security administrative financing act (of 1954) and section 903 of the federal social security act, as amended.
The treasurer of the fund shall also credit to said account all federal moneys credited to the fund pursuant to sub. (8)
The requirements of said section 903 shall control any appropriation, withdrawal and use of any moneys in said account.
Consistently with this chapter and said section 903, such moneys shall be used solely for benefits or employment security administration by the department, including unemployment insurance, employment service, apprenticeship programs, and related statistical operations.
Notwithstanding sub. (3)
, any moneys allocated under section 903 of the federal Social Security Act, as amended, for federal fiscal years 2000 and 2001 and the first $2,389,107 of any distribution received by this state under section 903 of that act in federal fiscal year 2002 shall be used solely for unemployment insurance administration.
The fund's treasurer shall request restoration from the U.S. secretary of labor of amounts credited to the account under this section which have been used to pay benefits, unless these amounts do not exceed the balance in the account, and unless the state does not have a balance of advances outstanding from the federal unemployment account under title XII of the social security act.
Such moneys shall be encumbered and spent for employment security administrative purposes only pursuant to, and after the effective date of, a specific legislative appropriation enactment:
Stating for which such purposes and in what amounts the appropriation is being made to the administrative account created by s. 108.20
Directing the fund's treasurer to transfer the appropriated amounts to the administrative account only as and to the extent that they are currently needed for such expenditures, and directing that there shall be restored to the account created by sub. (1)
any amount thus transferred which has ceased to be needed or available for such expenditures.
Specifying that the appropriated amounts are available for obligation solely within the 2 years beginning on the appropriation law's date of enactment. This paragraph does not apply to the appropriations under s. 20.445 (1) (nd)
or to any amounts expended from the appropriation under s. 20.445 (1) (nb)
from moneys transferred to this state on March 13, 2002, pursuant to section 903 (d) of the federal Social Security Act.
Limiting the total amount which may be obligated during any fiscal year to the aggregate of all amounts credited under sub. (1)
, including amounts credited pursuant to sub. (8)
, reduced at the time of any obligation by the sum of the moneys obligated and charged against any of the amounts credited.
The total of the amounts thus appropriated for use in any fiscal year shall in no event exceed the moneys available for such use hereunder, considering the timing of credits hereunder and the sums already spent or appropriated or transferred or otherwise encumbered hereunder.
The fund's treasurer shall keep a record of all such times and amounts; shall charge each sum against the earliest credits duly available therefor; shall include any sum thus appropriated but not yet spent hereunder in computing the fund's net balance as of the close of any month, in line with the federal requirement that any such sum shall, until spent, be considered part of the fund; and shall certify the relevant facts whenever necessary hereunder.
If any moneys appropriated hereunder are used to buy and hold suitable land, with a view to the future construction of an employment security building thereon, and if such land is later sold or transferred to other use, the proceeds of such sale (or the value of such land when transferred) shall be credited to the account created by sub. (1)
except as otherwise provided in ss. 13.48 (14)
If any sums are appropriated and spent hereunder to buy land and to build a suitable employment security building thereon, or to purchase information technology hardware and software, then any federal moneys thereafter credited to the fund or paid to the department by way of gradual reimbursement of such employment security capital expenditures, or in lieu of the estimated periodic amounts which would otherwise (in the absence of such expenditures) be federally granted for the rental of substantially equivalent quarters, shall be credited to the account created by sub. (1)
, consistently with any federal requirements applicable to the handling and crediting of such moneys.
To the extent that employment security moneys finance the capital cost of acquiring office quarters, either in a separate employment security building project or in a larger state building, no rental for the quarters thus financed, or for equivalent substitute quarters, shall be charged the department or its employment security functions at any time. The department shall so certify, in applying for the federal moneys specified in sub. (8)
Any land and building or office quarters acquired under this section shall continue to be used for employment security purposes. Realty or quarters may not be sold or transferred to other use if prior action is taken under s. 13.48 (14) (am)
or 16.848 (1)
and may not be sold or transferred without the governor's approval. The proceeds from the sale, or the value of realty or quarters upon transfer, shall be credited to the account established in sub. (1)
or credited to the fund established in s. 108.20
, or both in accordance with federal requirements. Equivalent substitute rent-free quarters may be provided, as federally approved. Amounts credited under this subsection shall be used solely to finance employment security quarters according to federal requirements.
Employment security buildings and equipment. 108.162(1)(1)
The amounts appropriated under s. 20.445 (1) (na)
shall be used for employment security administration, including unemployment insurance, employment service and related statistical operations; for capital outlay to buy suitable parcels of land for buildings designed for employment security operations; and to finance the designing and construction of such buildings, and for such equipment, facilities, paving, landscaping and other improvements as are required for the proper use and operation of buildings occupied by the department for employment security administration.
The treasurer of the fund shall transfer the amounts appropriated under s. 20.445 (1) (na)
from the federal administrative financing account under s. 20.445 (1) (n)
only as and to the extent that they are currently needed for expenditures under this section. Any amount thus transferred which has ceased to be needed or available for such expenditures shall be restored to that account.
The amount obligated under this section during any fiscal year may not exceed the aggregate of all amounts credited under s. 108.161 (1)
, including amounts credited under s. 108.161 (8)
, reduced by the amount obligated under s. 20.445 (1) (nb)
and further reduced at the time of any obligation by the sum of the moneys obligated and charged against any of the amounts thus credited.
As to any building project to be financed under this section, the department shall secure advance assurance that the federal bureau of employment security will apply to that project, after its completion and occupancy, the bureau's policy of gradually reimbursing the fund for the necessary capital costs of any suitable employment security building project thus financed by federal grants covering the amounts which would otherwise be payable during the reimbursement or amortization period for the rental of substantially equivalent office quarters.
The governor, before approving any land purchase or transfer or building project to be financed under this section, shall consult with the building commission as to those cities and sites where early construction of a combined state office building is under active consideration with a view to determining where employment security building projects thus financed would be desirable.
If the building commission with the approval of the governor determines as to any city or site that employment security offices should be part of a combined state office building project, or should be built on state-owned land or on land owned by a Wisconsin state public building corporation, the amounts appropriated under s. 20.445 (1) (na)
shall be available to finance such offices or a proper employment security share of such combined project.
Any amount appropriated under s. 20.445 (1) (na)
which has not been obligated shall be available for employment security local office building projects, consistent with this section and ss. 108.161
Payment of contributions. 108.17(1)(1)
Contributions shall accrue and become payable by each employer then subject to this chapter on the first day of July, 1934, and shall be paid thenceforth in accordance with this chapter. Thereafter contributions shall accrue and become payable by any employer on and after the date on which the employer becomes newly subject to this chapter.
In the case of an employer who becomes newly subject to this chapter based on employment during a given year, contributions based on payrolls through the quarter which includes the date the employer became subject to this chapter shall not be considered as payable for the purposes of s. 108.22
until the close of the month next following the first full quarter occurring after the quarter during which the liability was incurred. In no case may such due date be later than January 31 of the succeeding year.
Except as provided in par. (b)
, every employer that is subject to a contribution requirement shall file quarterly reports of contributions required under this chapter with the department, and pay contributions to the department, in such manner as the department prescribes. Each contribution report and payment is due at the close of the month next following the end of the applicable calendar quarter, except as authorized in sub. (2c)
or as the department may assign a later due date pursuant to sub. (1m)
or general department rules.
The department may electronically provide a means whereby an employer that files its employment and wage reports electronically may determine the amount of contributions due for payment by the employer under s. 108.18
for each quarter. If an employer that is subject to a contribution requirement files its employment and wage reports under s. 108.205 (1)
electronically, in the manner prescribed by the department for purposes of this paragraph, the department may require the employer to determine electronically the amount of contributions due for payment by the employer under s. 108.18
for each quarter. In such case, the employer is excused from filing contribution reports under par. (a)
. The employer shall pay the amount due for each quarter by the due date specified in par. (a)
The department shall prescribe a form and methodology for filing contribution reports under sub. (2)
electronically. Each employer of 25 or more employees, as determined under s. 108.22 (1) (ae)
, that does not use an employer agent to file its contribution reports under this section shall file its contribution reports electronically in the manner and form prescribed by the department. Each employer that becomes subject to an electronic reporting requirement under this subsection shall file its initial report under this subsection for the quarter during which the employer becomes subject to the reporting requirement. Once an employer becomes subject to a reporting requirement under this subsection, it shall continue to file its reports under this subsection unless that requirement is waived by the department.
Except as provided in pars. (d)
, an employer that has a first quarter contribution liability of $1,000 or more may elect to defer payment to later due dates beyond the due date established under sub. (1m)
of not more than 60 percent of its first quarter contribution liability, without payment of interest, as follows:
The employer shall pay at least 30 percent of the first quarter contribution liability on or before July 31 of the year in which the liability accrues.
The employer shall pay at least an additional 20 percent of the first quarter contribution liability on or before October 31 of the year in which the liability accrues.
The employer shall pay any remaining balance of the first quarter contribution liability on or before January 31 of the year after the year in which the liability accrues.
An employer that elects to defer a payment under par. (a)
may pay more than the specified minimum deferred amount or all of the deferred amount at any time before the due date under par. (a)
If an employer fails to pay at least the specified minimum deferred amount for the first quarter, together with the full amount of contributions payable for any subsequent quarter, or fails to file its employment and wage report in the format prescribed under par. (f)
, by a specified due date, then all unpaid contribution liability of that employer for the first quarter is delinquent under s. 108.22
and interest thereon is payable from April 30 of the year in which the liability accrues.
If an employer fails to pay at least 40 percent of its first quarter contribution liability on or before April 30 of the year in which the liability accrues, the employer is not permitted to defer the balance of the liability under this subsection.
An employer is not permitted to defer its first quarter contribution liability under this subsection for any year unless the employer pays all delinquent contributions, together with any interest, penalties, and fees assessed under this chapter, prior to April 30 of the year in which the liability accrues.
An employer that elects to defer payment of its first quarter contributions under this subsection shall file the election electronically, shall file its contribution reports under sub. (2) (a)
unless excused from filing under sub. (2) (b)
, and shall file its employment and wage reports under s. 108.205
electronically in the manner and form prescribed by the department.
An employer agent that prepares reports on behalf of employers under sub. (2)
shall file contribution reports electronically in the manner and form prescribed by the department under sub. (2b)
unless that requirement is waived by the department.
When a written statement of account is issued to an employer by the department, showing as duly credited a specified amount received from the employer under this chapter, no other form of state receipt therefor is required.
If an employing unit makes application to the department to adjust an alleged overpayment by the employer of contributions or interest under this chapter, and files such an application within 3 years after the close of the calendar year in which such payment was made, the department shall make a determination under s. 108.10
as to the existence and extent of any such overpayment, and said section shall apply to such determination. Except as provided in sub. (3m)
, the department shall allow an employer a credit for any amount determined under s. 108.10
to have been erroneously paid by the employer, without interest, against its future contribution payments; or, if the department finds it impracticable to allow the employer such a credit, it shall refund such overpayment to the employer, without interest, from the fund or the administrative account, as the case may be.
If an appeal tribunal or the commission issues a decision under s. 108.10 (2)
, or a court issues a decision on review under s. 108.10 (4)
, in which it is determined that an amount has been erroneously paid by an employer, the department shall, from the administrative account, credit the employer with interest at the rate of 0.75 percent per month or fraction thereof on the amount of the erroneous payment. Interest shall accrue from the month which the erroneous payment was made until the month in which it is either used as a credit against future contributions or refunded to the employer.
An employer's contribution rate for any year, once determined by the department, shall not be redetermined after the last day of February in the year for which the rate was determined unless the rate was determined based on payroll which should have been reported under a different employer's account, in which case the department may redetermine the rates with respect to all affected employers' accounts.