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[Federal Register Volume 69, Number 189 (Thursday, September 30, 2004)]
[Notices]
[Pages 58550-58556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21917]

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DEPARTMENT OF LABOR

Employment and Training Administration

Workforce Security Programs: Unemployment Insurance Program 
Letter Interpreting Federal Law

    The Employment and Training Administration interprets Federal law 
requirements pertaining to unemployment compensation. These 
interpretations are issued in Unemployment Insurance Program Letters 
(UIPLs) to the State Workforce Agenices. UIPL 30-04 is published in the 
Federal Register to inform the public.
    This UIPL concers the SUTA Dumping Prevention Act of 2004 (Pub. L. 
108-295); SUTA refers to state unemployment tax acts. All states will 
need to amend their laws regarding the transfer of unemployment 
experience as a result of the new Federal law. This UIPL includes a 
detailed explanation of the law in question and answer format, draft 
legislative language, a conformity checklist for states, and the text 
of P.L. 108-295.

    Dated: September 22, 2004.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
Employment and Training Administration, Advisory System, U.S. 
Department of Labor, Washington, DC 20210
    Classification: SUTA Dumping.
    Correspondence Symbol: DL.
    Date: August 13, 2004.
    Advisory: Unemployment Insurance Program Letter No. 30-04.
    To: State Workforce Agencies.
    From: Cheryl Atkinson s/s, Administrator, Office of Workforce 
Security.
    Subject: SUTA Dumping--Amendments to Federal Law affecting the 
Federal-State Unemployment Compensation Program.
    1. Purpose: To advise states of the amendments to Federal law 
designed to prohibit ``SUTA Dumping.''
    2. References. Public Law (Pub. L. 108-295, the ``SUTA Dumping 
Prevention Act of 2004,'' signed by the President on August 9, 2004; 
the Social Security Act (SSA); the Internal Revenue Code (IRC), 
including the Federal Unemployment Tax Act (FUTA); and Unemployment 
Insurance Program Letters (UIPLs) 29-83 (56 FR 54891 (October 23, 
1991)), 29-83, Change 3 (61 FR 39156 (July 26, 1996)), 30-83, 15-84, 
and 34-02.
    3. Background.
    a. In General. Some employers and financial advisors have found 
ways to manipulate state experience rating systems so that these 
employers pay lower state unemployment compensation (UC) taxes than 
their unemployment experience would otherwise allow. This practice is 
called SUTA dumping. (``SUTA'' refer to state unemployment tax acts, 
but has also been said to stand for, among other things, ``State 
Unemployment Tax Avoidance.'') Most frequently, it involves merger, 
acquisition or restructuring schemes, especially those involving 
shifting of workforce/payroll. The legality of these SUTA dumping 
schemes varies depending on state laws. Public Law 108-295 amended the 
SSA to add a new Section 303(k) establishing a nationwide minimum 
standard for curbing SUTA dumping. All states will need to amend their 
UC laws to conform with new legislation.
    Recissions: None.
    Expiration Date: Continuing.
    b. Experience Rating. All states operate experience rating systems 
in order for employers in the state to receive the additional credit 
against the Federal unemployment tax. (The tax credit scheme is 
explained in UIPL 30-83 and experience rating in UIPL 29-83.) Under 
experience rating, the state unemployment tax rate of an employer is, 
in most states, based on the amount of UC paid to former employees. The 
more UC paid to its former employees, the higher the tax rate of the 
employer, up to a maximum established by state law. Experience ratings 
helps ensure an equitable distribution of costs of the UC program among 
employers, encourages employers to stabilize their workforce, and 
provides an incentive for employers

[[Page 58551]]

to fully participate in the UC program. SUTA dumping thwarts these 
purposes.
    c. SUTA Dumping and the Amendments Made by P.L. 108-295. The 
amendments to the SSA made by P.L. 108-295 are intended to prohibit the 
following two methods of SUTA dumping:
     An employer escapes poor experience (and high experience 
rates) by setting up a shell company and then transferring some or all 
of its workforce (and the accompanying payroll) to the shell company 
after the shell has earned a low experience rate. The transferred 
payroll is then taxed at the shell's lower rate.
     An entity commencing a business purchases an existing 
small business with a low UC tax rate. Instead of being assigned the 
higher new employer rate, the entity receives the small business's 
lower rate. Typically, the new business ceases the business activity of 
the purchased business and commences a different type of business 
activity.
    Among other things, the SSA, as amended, requires state laws to 
prohibit these forms of SUTA dumping as a condition of states receiving 
administrative grants for the UC program. It also requires states to 
impose penalties for knowingly violating (or attempting to violate) 
these provisions of state law.
    A more detailed discussion of these amendments, including effective 
dates, is contained in Attachment I. Draft language for use in crafting 
state legislation is contained in Attachment II. Attachment III 
contains a checklist for assisting states in determining the conformity 
of their laws with these amendments. Attachment IV contains the text of 
P.L. 108-295.
    P.L. 108-295 also requires the Secretary of Labor to conduct a 
study ``of the implementation of'' the amendments ``to assess the 
status and appropriateness of State actions to meet'' their 
requirements. P.L. 108-295 also requires the Secretary to submit to the 
Congress, not later than July 15, 2007, a report that (1) assesses the 
statute and appropriateness of state actions to meet its new 
requirements, and (2) recommends any further Congressional action that 
the Secretary considers necessary to improve the effectiveness of the 
amendments. (See Section 2(b) of P.L. 108-295).
    d. Access to the National Directory of New Hires. P.L. 108-295 also 
amended the SSA to permit the use of certain information in the 
National Directory of New Hires to be used by state UC agencies in the 
administration of Federal and state UC laws. The Department of Labor 
(Department) will provide more information on this amendment and its 
implementation in the future. It is not anticipated that this amendment 
will require states to amend their UC laws.
    4. Action. State administrators should distribute this advisory to 
appropriate staff. States must adhere to the requirements of Federal 
law contained in this advisory.
    5. Inquiries. Questions should be addressed to your Regional 
Office.
    6. Attachments.

Attachment I--Detailed Explanation of Section 303(k), SSA--Questions 
and Answers.
Attachment II--Draft Legislative Language.
Attachment III--Conformity Checklist for State SUTA Dumping Laws.
Attachment IV--Text of P.L. 108-295\1\
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    \1\ Attachment IV is available on the ETA Website at http://ows.eta.gov/dmstree/uipl/uipl2k4/uipl_3004.htm.
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Detailed Explanation of Section 303(k), SSA Questions and Answers

In General

    1. Question: How do the SUTA dumping amendments affect the 
federal-state UC program?
    Answer: States must assure their UC laws provide for the 
following:
     Mandatory Transfers. Unemployment experience must be 
transferred whenever there is substantially common ownership, 
management or control of two employers, and one of these employers 
transfers its trade or business (including its workforce), or a 
portion thereof, to the other employer. This requirement applies to 
both total and partial transfers of business
     Prohibited Transfers. Unemployment experience may not 
be transferred, and a new employer rate (or the state's standard 
rate) will instead be assigned, when a person who is not an employer 
acquires the trade or business of an existing employer. This 
prohibition applies only if the UC agency finds that such person 
acquired the business solely or primarily for the purpose of 
obtaining a lower rate of contributions.
     Penalties for SUTA Dumping. ``Meaningful'' civil and 
criminal penalties must be imposed on persons ``knowingly'' 
violating or attempting to violate the two requirements discussed 
above. These penalties must also be applicable to any person 
(including the person's employer) who knowingly gives advice leading 
to such a violation.
     Procedures. Procedures for identifying SUTA dumping 
must be established. The exact procedures do not need to be 
specified in state law, but state law must specifically provide for 
the establishment of such procedures.
    These are the minimum requirements which all state laws must 
meet. States may provide for more stringent provisions, provided 
they are otherwise consistent with Federal UC law. For example, 
instead of requiring a partial transfer of experience only when 
there is common ownership, management or control, a state may 
require transfers of experience whenever a partial transfer of trade 
or business occurs.
    2. Question. Do the SUTA dumping amendments require my state to 
completely overhaul its provisions relating to transfers of 
experience?
    Answer. No. The amendments do not change the way states handle 
transfers except as discussed in the preceding Q&A. As a result, a 
state may leave its current provisions intact while amending its law 
to provide that any state law provisions implementing Section 
303(k), SSA, override these other provisions. The draft legislative 
language attached to this UIPL takes this approach.

Mandatory Transfers--Section 303(k)(1)(A), SSA

    3. Question. Under what conditions must experience be 
transferred?
    Answer. Unemployment experience must be transferred whenever 
there is substantially common ownership, management or control of 
two employers, and one of these employers transfers its trade or 
business, or a portion thereof, to the other employer. Thus, this 
requirement applies to both total and partial transfers.
    4. Question. Provide an example of when experience must be 
transferred under the amendments.
    Answer. Corporation A is assigned the state's maximum UC 
contribution rate of 5.4%. It establishes a shell corporation that 
is treated as a separate employer for UC purposes. The shell 
eventually qualifies for the state's minimum UC contribution rate of 
.5%. (How the new entity obtains this rate may vary depending on how 
it was established and on the state's UC law. It may, for example, 
simply wait out a new employer period. If state law permits, it may 
use voluntary contributions to ``buy down'' to the minimum rate.) 
Corporation A then transfers all or some of its workforce to the 
shell. The result, absent the amendments, would be that, even though 
Corporation A controls the shell and its operations, it escapes a 
rate of 5.4% on the transferred workforce and instead pays at a rate 
of .5%.
    Under the amendments, if the workforce is transferred to the 
shell, then the unemployment experience attributable to the 
transferred workforce must also be transferred to the shell. The 
shell's experience would be recomputed based on its experience as 
well as the experience transferred from Corporation A. Assuming a 
total transfer of workforce and experience to the shell, the shell 
might even continue to receive the maximum rate of 5.4%.
    It does not matter whether the employer transfers all or some of 
its trade or business to the shell. Experience commensurate with the 
trade or business transferred must be transferred to the shell.
    5. Question. Why is the employer's workforce part of the 
employer's ``trade or business'' and thus subject to the SUTA 
dumping amendments?
    Answer. The employer's workforce is necessarily a part of its 
business and is the

[[Page 58552]]

means by which an employer effectuates its trade or business. 
Without a workforce, there would be neither trade nor business. 
Thus, when some or all of the workforce is transferred, the employer 
no longer has the means of performing its trade or business with 
respect to the transferred workforce.
    As noted elsewhere in this UIPL, the best-known means of SUTA 
dumping is the manipulation of an employer's workforce/payroll. 
Senate Majority Leader Frist specifically addressed this 
manipulation on the floor of the Senate when he stated that the 
amendment ``prohibits shifting employees into shell companies * * * 
'' (150 Cong. Rec. S8804 (daily ed. July 22, 2004)). The mandatory 
transfer provisions of the SUTA dumping amendments would have 
little, if any, effect if the workforce/payroll were not considered 
to be part of the employer's trade or business.
    6. Question. How does a state determine if there is 
``substantially'' common ownership, management, or control of two 
employers?
    Answer. The state must examine the facts of each case using 
reasonable factors. Among other things, the state would consider the 
extent of commonality or similarity of: Ownership; any familial 
relationships; principals or corporate officers; organizational 
structure; day-to-day operations; assets and liabilities; and stated 
business purposes. The Department is not at this time establishing a 
bright line test of who constitutes ``substantially'' common 
ownership, management, or control.
    Nothing prohibits a state from exceeding the minimum Federal 
requirement by lowering this threshold test to ``any'' common 
ownership, management or control. This will meet the Federal law 
requirement as it will include all cases where ``substantially 
common ownership, management or control'' exists.
    7. Question. When is the transfer of trade or business 
effective?
    Answer. When an acquisition of trade or business is concluded is 
usually determined by examining the legal documents related to any 
purchase or acquisition of the trade or business. However, in SUTA 
dumping cases among businesses with common ownership, management, or 
control, such an acquisition will generally not take place. Instead, 
there may simply be a different entity issuing the paychecks. That a 
different entity is issuing paychecks is both an indication of the 
transfer of the workforce and the effective date of the transfer of 
the workforce.
    8. Question. Following the mandatory transfer of experience, 
when must states reassign the employers' rates?
    Answer. Although the amendments require that the experience be 
combined, it does not specify when revised rates must be reassigned. 
As a result, states may either (1) assign revised rates for the 
predecessor and successor employers immediately upon completion of 
the transfer of trade or business, or (2) assign revised rates for 
the predecessor and successor the next time the state calculates 
rates for all employers.
    For purposes of implementing this new mandatory transfer, the 
Department strongly recommends that states reassign rates 
immediately upon completion of the transfer. If rates are not 
reassigned until a later date, it is possible that a successful 
``SUTA dump'' will be achieved during the period between the 
completion of the transfer and the assignment of a new rate. For 
example, if an employer with a rate of 5.4% transfers 1,000 
employees into a shell with a rate of .1% on the first day of the 
rate year, the employer will have accomplished a ``SUTA'' dump for 
that rate year.
    9. Question: An employee of one legal entity is moved to another 
legal entity. Although each entity is treated as a separate employer 
for UC purposes, there is substantially common control over the two 
entities. Does this mean that unemployment experience must be 
transferred?
    Answer: No. When a single person is moved from one entity to 
another, it is merely a transfer of an individual rather than a 
transfer of trade or business.
    10. Question: A state's UC law provides that any corporate shell 
or spin-offs where there is ``a continuity of control of the 
business enterprise'' will not be treated as a new employer for UC 
purposes, but instead as the same employer. Does this constitute an 
acceptable alternative to the mandatory transfer requirement?
    Answer: While this provision prohibits many (if not most) SUTA 
dumps, it will not necessarily address all situations where there 
are cases of ``substantially common ownership, management, or 
control.'' (Emphasis added.) There may, for example, be cases where 
substantially common ownership exists, but that ownership does not 
exert a controlling interest. (For example, it is possible that a 
majority owner of two corporations could have non-voting stock.) 
This situation would require a transfer of experience under Section 
303(k), SSA, even if ``substantially common control'' did not exist.
    States with such ``continuity'' provisions will meet the 
requirements of Section 303(k)(1)(A), SSA, concerning mandatory 
transfers if they amend their provisions to be as specific as the 
Federal requirement. This is, the ``continuity'' provision may be 
amended to provide that there is no new employer where there is 
``substantially common ownership, management, or control.''
    Instead of providing for amendments addressing the mandatory 
transfer of experience, states may wish to amend their laws to 
provide for a ``continuity'' provision. A ``continuity'' provision 
may be easier to administer because, if all entities with 
substantially common ownership, management and control are always 
treated as being a single employer under the state UC law, the issue 
of transfers or experience would not arise. An example of such a law 
is California's, which was quoted in UIPL 34-02. (Note that 
California's law is limited to continuity of control, and thus, does 
not currently meet the Federal requirement.) The penalties described 
below would need to apply to violations and attempted violations of 
any ``continuity'' provision.
    11. Question: How are professional employer organizations (PEOs) 
affected by the new mandatory transfer requirement?
    Answer: The same rules apply to PEOs as any other employer. If a 
PEO sets up a shell corporation and transfers some or all of its 
trade or business to the shell, then the unemployment experience 
associated with the transferred trade or business must be 
transferred to the shell. Similarly, if the conditions prohibiting 
transfers of experience are met, as discussed in Questions and 
Answers 16-18, they would apply to PEOs.
    Except for these mandatory/prohibited transfers, the amendments 
do not otherwise affect the relationship between the PEO and its 
clients. States currently vary in their treatment of PEOs and their 
clients for experience rating purposes. Some states treat the client 
as the employer for experience rating purposes and others treat the 
PEO as the employer for these purposes. The amendments do not 
require states to change this treatment.
    12. Question: A PEO sets up several different shells. Each year 
it shifts all its clients to a different shell. For example, in the 
first year the client contracts with Shell A; in the second, it 
contracts with Shell B; and in the third it contracts with Shell C. 
When this occurs, must experience be transferred from Shell A to 
Shell B and then to Shell C?
    Answer: Yes. By dictating that the client must sign with a 
particular shell (or otherwise manipulating which shell the client 
signs with), the PEO is effectively transferring its trade/
business--that is, the trade/business of performing services as a 
PEO for a client--from Shell A to Shell B and then to Shell C. The 
control exercised by the PEO over which shell is the contracting 
entity meets the test of ``substantial control.'' Since a transfer 
of trade/business has occurred and substantial commonality of 
control exists, experience must be transferred.
    13. Question: May my state limit the mandatory transfer 
provision to large transfers of experience, such as those where 300 
or more employees are transferred?
    Answer: No. The SUTA dumping amendments apply to all transfers, 
large and small, where there is substantially common ownership, 
management or control.
    14. Question: Current state law requires partial transfers of 
experience only when an ``identifiable and segregable'' component of 
an employer has been transferred to another employer. Is this an 
acceptable limitation on partial transfers?
    Answer: No. States must transfer experience whenever ``a part'' 
of an existing business is transferred.
    The bill that eventually became P.L. 108-295 was H.R. 3463. As 
introduced, H.R. 3463 required transfers of experience only when 
there was a transfer of an ``identifiable and segregable'' component 
of the employer. That language was deleted after the Department 
alerted Congressional staff of concerns that it would create a 
loophole allowing SUTA dumping. Thus, states must transfer 
experience whenever ``a part'' of an existing business is 
transferred.
    For example, larger businesses are often divided into separate 
legal entities. Under the ``identifiable and segregable'' test as 
commonly applied under many current state UC laws, a transfer of 
experience would be mandated only if all of the trade and business

[[Page 58553]]

of one legal entity is acquired by another legal entity. Conversely, 
if only a part of the entity is acquired by another entity, then no 
``identifiable and segregable'' component could be identified and no 
transfer of experience would be required. As a result, the 
limitation relating to an ``identifiable and segregable'' component 
could easily be circumvented through transferring the majority of 
employees from one entity into a shell that had earned the state's 
minimum tax rate.
    15. Question: How is experience transferred when no identifiable 
and segregable component of a business can be identified? For 
example, Business A sets up a shell. Business A then transfers 90% 
of its workforce to the shell.
    Answer: States may prorate the payroll of the employees 
transferred against benefit charges/ reserve balance/benefit wages, 
whichever is appropriate. In determining the payroll transferred, 
the state may use either taxable or total payroll, but it must be 
the payroll immediately prior to the transfer of workforce.
    Thus, assuming a state uses total payroll, if 90% of Business 
A's total payroll was transferred to the shell, 90% of the 
experience attributable to Business A (that is, benefit charges, 
reserve balance, or benefit wages, or payroll, whichever is 
appropriate) must be transferred to the shell. This method is 
acceptable only when no identifiable and segregable component can be 
identified.
    It should be noted that, in this case, a ``continuity'' 
provision, as discussed in Question and Answer 10, would 
hold that the shell is not a separate employer. As a result, the 
issue of a transfer of experience would not arise.

Prohibited Transfers--Section 303(k)(1)(B), SSA

    16. Question: Under what conditions are states prohibited from 
transferring experience under the SUTA dumping amendments?
    Answer: Unemployment experience may not be transferred, and a 
new employer rate or the state's standard rate will instead be 
assigned, when a person who is not an employer acquires the trade or 
business of an existing employer. However, this prohibition applies 
only if the UC agency finds that such person acquired the business 
solely or primarily for the purpose of obtaining a lower rate of 
contributions. (The identification of a state's standard rate is 
explained in UIPL 15-84.)
    17. Question: Provide an example of when experience may not be 
transferred under the amendments.
    Answer: The amendment prohibiting transfers is intended to 
address situations where a person, who is not an employer, purchases 
a small business solely or primarily for the purpose of obtaining 
its low rate of contributions when it commences its new business. 
Generally, the small business is converted to a different type of 
business.
    For example, Person A is not an employer. Person A purchases a 
flower shop, which has earned the minimum UC rate of .5 percent to 
begin a manufacturing business. Person A either stops the flower 
business, or it becomes incidental as non-flower-shop payroll 
overwhelms it. Had Person A not purchased the flower shop, it would 
have been assigned a new employer rate of 4.5 percent based on its 
non-flower shop industry. The facts here should lead the state UC 
agency to conclude that the purchase was primarily for the purpose 
of obtaining a lower rate of contributions. Thus, under the 
amendments, state laws may not permit the experience of the flower 
shop to be transferred to Person A. Instead, Person A will be 
assigned the applicable new employer rate (or the state's standard 
rate) until such time as Person A qualifies for a rate based on 
experience.
    18. Question: How will a state determine if the acquisition of 
an employer was made ``solely or primarily for the purpose of 
obtaining a lower rate of contributions?''
    Answer: The state should ``use objective factors which may 
include the cost of acquiring the business, whether the person 
continued the business enterprise of the acquired business, how 
doing such business enterprise was continued, or whether a 
substantial number of new employees were hired for performance of 
duties unrelated to the business activity conducted prior to 
acquisition.'' (The quoted language is from the Draft Legislative 
Language in Attachment II.) The cost of acquiring a business may be 
used as an objective factor because this cost, as compared with any 
potential savings in contributions costs, will indicate the extent 
to which UC tax savings may accrue.
    State law may not arbitrarily limit the criteria to be used. For 
example, some state laws currently consider only whether the 
business enterprise of the acquired business is continued. This 
limitation would allow an impermissible SUTA dump to occur as it 
does not address situations where the purchaser continues the 
acquired business while flooding the business (and the experience 
account) with a substantial number of employees performing duties 
unrelated to the acquired business. For this reason, the draft 
legislative language is written to refer to ``objective factors 
which include'' those listed. (Emphasis added.)

Required Penalties--Section 303(k)(1)(D), SSA

    19. Question: What penalties must be imposed under state law?
    Answer: State law must provide that ``meaningful civil and 
criminal penalties'' are imposed with respect to--
     Persons who ``knowingly violate or attempt to violate'' 
those provisions of the state's UC law that implement Section 
303(k), SSA.
     Persons who ``knowingly advise another person to 
violate those provisions of'' state UC laws that implement Section 
303(k), SSA.

``Knowingly'' is defined as ``having actual knowledge of or acting 
with deliberate ignorance of or reckless disregard for the 
prohibition involved.'' (Emphasis added. Section 303(k)(2)(E), SSA.)
    20. Question: Must penalties be imposed in every case of SUTA 
dumping that is identified?
    Answer: No. The penalties only apply to persons who ``knowingly 
violate or attempt to violate'' the SUTA dumping provisions of state 
law.
    However, when a determination issued by the appropriate 
authority or a consent order establishes that a person ``knowingly'' 
violated (or attempted to violate) a state's SUTA dumping 
provisions, then civil penalties must be imposed. States will take 
into account the amounts at issue and the likelihood of successful 
projection in determining which cases will result in criminal 
prosecutions.
    In cases where a SUTA dumping investigation results in a 
settlement between the state and the employer in which the employer 
admits no wrongdoing, their has been no clear establishment of SUTA 
dumping. In such cases, Federal law does not require the imposition 
of a penalty.
    21. Question: What is a ``meaningful'' penalty?
    Answer: To be ``meaningful,'' the penalty musts have the effect 
of curtailing SUTA dumping. Minimal penalties will not accomplish 
this end.
    Concerning cases where only civil penalties are imposed, a 
monetary penalty must be of sufficient size that an employer will 
not be tempted to SUTA dump. A flat fine against SUTA dumping may 
not be a meaningful deterrent. For example, if a corporation that 
attempted to dump $2 million in SUTA taxes is fined $5,000, this 
will likely not be a meaningful deterrent against future attempts to 
SUTA dump. For that reason, the draft legislative language attached 
to this UIPL takes the approach that an employer who violated (or 
attempted to violate) the SUTA dumping prohibitions be assessed the 
maximum tax rate, or, if assigning the maximum rate does not result 
in a rate increase of at least 2% of taxable wages, then a penalty 
rate of 2% of taxable wages will instead be assessed for the rate 
year in which the violation occurred (or was attempted) and the 
following three years. States are free to vary this penalty 
(including assessing both rate increases and fines) but any penalty 
must have significant financial impact to have a deterrent effect.
    22. Question: May state law limit the civil penalties to rate 
increases?
    Answer: No. UC rate increases are not applicable to self-
employed individuals who knowingly advise employers to SUTA dump. As 
a result, state law also needs to provide for fines against 
individuals. The draft legislative language attached to this UIPL 
takes the approach that rate increases will be applied to employers 
and fines to non-employers.
    23. Question: Do the SUTA dumping amendments specify the uses of 
any financial penalties collected by the UC agency?
    Answer. No. The draft legislative language attached to this UIPL 
operates on the assumption that, as is the case with any other UC 
contributions payable under a state's UC law, any amounts paid due 
to any rate increase will be deposited in the state's unemployment 
fund in which case they may be withdrawn only for the payment of 
benefits. Also, under the draft legislative language, any fines will 
be deposited in the state's penalty and interest account. States may 
limit the use of these fines to SUTA dumping and other integrity 
activities.

[[Page 58554]]

Payrolling

    24. Question: Do the SUTA dumping amendments address situations 
where one employer reports its payroll under another employer's 
account?
    Answer: No. Although this practice, commonly called 
``payrolling,'' has been known for some time, it is not addressed by 
the amendments. ``Payrolling'' may also include cases where two 
unrelated businesses negotiate for a fee to have all or part of the 
employer with the higher UC rate report its payroll as belonging to 
the other employer. A PEO was recently found to be ``payrolling'' by 
shifting its payroll to the account of a client with a lower rate. 
In each case, the employers are fraudulently reporting who is the 
employer of an individual.
    Unlike the manipulations the SUTA dumping amendments are 
designed to prevent, ``payrolling'' should already be explicitly 
prohibited under all states' UC laws since it involves an employer 
submitting fraudulent documents concerning who is an individual's 
employer for UC purposes.
    Recognizing that ``payrolling'' has the same effect as SUTA 
dumping, the Draft Legislative Language is written so that its 
penalties will apply to ``payrollers.'' It provides that the 
penalties apply not just to the mandatory and prohibited transfers 
required by new Section 303(k), SSA but also to violations or 
attempted violations of ``any other provision of this Chapter 
related to determining the assignment of a contribution rate.''

Establishing Procedures--Section 303(k)(1)(E), SSA

    25. Question: What must my state law say regarding establishing 
procedures to detect SUTA dumping?
    Answer: The state law must say that the state will establish 
procedures to ``identify the transfer or acquisition of a business 
for purposes of'' detecting SUTA dumping. (Section 303(k)(1)(E), 
SSA.) The state law is not required to specify the procedures. The 
Department does not believe that it is desirable to legislate what 
these procedures must be as the most effective procedures may vary 
over time. As a result, the Draft Language does not specify 
procedures. However, the state must implement procedures to detect 
SUTA dumping.

Other

    26. Question: What does ``person'' mean for purposes of the 
amendments?
    Answer: ``Person'' has ``the meaning given such term by section 
7701(a)(1) of the Internal Revenue of 1986.'' (Section 303(k)(2)(F), 
SSA.) Section 7701(a)(1), IRC, defines ``person'' as meaning ``an 
individual, a trust, estate, partnership, association, company or 
corporation.'' Thus, the term ``person'' is very broad; it includes 
entities that may be employers under state law and it includes 
individuals who are not employers.
    27. Question: What does ``employer'' mean for purposes of the 
amendments?
    Answer: ``Employer'' means ``an employer as defined under state 
law.'' (Section 303(k)(2)(B), SSA) Typically, ``employer'' will mean 
an entity that pays sufficient wages based on employment to be 
subject to the state's UC law. If state UC law does not use the term 
``employer,'' then, for purposes of determining what entity is an 
employer, the state should use whatever term it uses to describe 
this entity. For example, many states use the term ``employing 
unit'' to describe this entity.
    28. Question: What does ``business'' mean for purposes of the 
amendments?
    Answer: ``Business'' means ``a trade or business (or a part 
thereof).'' (Section 303(k)(2)(c), SSA.)

Effective Date

    29. Question: By what date must the states amend their UC laws?
    Answer: The amendments do not specify a date. Instead, they 
apply to ``rate years beginning after the end of the 26-week period 
beginning on the first day of the first regularly scheduled session 
of the State legislature beginning on or after the date of the 
enactment'' of Public Law 108-295, which was August 9, 2004. (See 
Section 2(c) of Public Law 108-295.) Thus, transfer of experience 
required or prohibited under the amendments must be effective for 
such rate years. Notice prohibits states from providing for earlier 
effective dates. Indeed, states are encouraged to make their 
amendments effective as soon as possible.
    All states currently have rate years beginning either January 1 
or July 1. Also, almost all states' first legislative sessions 
following the date of enactment will begin in the first three months 
of 2005. As a result, after taking into account the 26-week grace 
period, the amendments in most states must be effective for rate 
years beginning on or after January 1, 2006, or on or after July 1, 
2006, whichever is applicable in the state.
    For purposes of determining when the 26-week period ends, the 
state should start counting on the first day of the first regularly 
scheduled session of the state legislature and count up to 182 (26 
weeks x 7 days = 182 days). Any rate year beginning after the 182nd 
day must apply the SUTA dumping amendments.
    The following table indicates the required effective dates:

                                                 Effective Dates
----------------------------------------------------------------------------------------------------------------
 First day of state's first regularly
          scheduled session                 State's rate year  begins        Effective for rate years beginning
----------------------------------------------------------------------------------------------------------------
January 1-July 3, 2005...............  January 1.........................  January 1, 2006.
                                       July 1............................  July 1, 2006.
July 4-December 31, 2005.............  January 1.........................  January 1, 2007.
                                       July 1............................  July 1, 2006.
January 1-July 3, 2006...............  January 1.........................  January 1, 2007.
                                       July 1............................  July 1, 2007.
----------------------------------------------------------------------------------------------------------------

    30. Question: The state's legislature has adjourned. However, it 
is scheduled to meet in a one-day session that is limited to over-
riding vetoes. This one-day session is consistently scheduled to 
occur a specific number of days after the state legislature has 
adjourned. Although the legislature adjourned prior to the date of 
enactment of Public Law 108-295, the one-day session occurs after 
the date of enactment. Does this veto session count as the ``first 
day of the first regularly scheduled session'' following enactment?
    Answer: No. The effective date provisions recognize that states 
need time to amend their laws. A legislative session where the 
introduction and enactment of new legislation is prohibited will, 
therefore, not be considered as starting the clock for purposes of 
determining when rates must be assigned consistent with new Section 
303(k), SSA. If, one the other hand, legislation may be introduced 
and enacted in such a one-day session, the clock will start.

Attachment II

Draft Legislative Language

    The following language is provided for state use in developing 
language that meets the requirements of Section 303(k), SSA, as 
added by Public Law 108-295, on SUTA dumping.
    States will need to modify the language to accord with state 
usage. For example, ``Commissioner'' should be changed to the name 
of the agency administering the state's UC program if that is the 
state convention. Similarly, legal usages, such as ``Chapter'' to 
refer to the state's UC law, should be changed to accord with state 
convention.
    The following language assumes the state wishes to add a 
separate section addressing SUTA dumping. States may chose instead 
to integrate the following provisions into existing state law. If 
this is the case, states should use this language in conjunction 
with the Checklist in Attachment III to assure all necessary 
amendments are made. Similarly, states modifying the language should 
test such modifications against the Checklist.
    Section --------. Special Rules Regarding Transfers of 
Experience and Assignment of Rates. Notwithstanding any other 
provision

[[Page 58555]]

of law, the following shall apply regarding assignment of rates and 
transfers of experience:
    (a) If an employer transfers its trade or business, or a portion 
thereof, to another employer and, at the time of the transfer, there 
is substantially common ownership, management or control of the two 
employers, then the unemployment experience attributable to the 
transferred trade or business shall be transferred to the employer 
to whom such business is so transferred. The rates of both employers 
shall be recalculated and made effective immediately upon the date 
of the transfer of trade or business.\1\
---------------------------------------------------------------------------

    \1\ See Question and Answer 8, which contains the Department's 
recommendation that rates be recomputed immediately.
---------------------------------------------------------------------------

    (b) Whenever a person \2\ who is not an employer \3\ under this 
Chapter at the time it acquires the trade or business of an 
employer, the unemployment experience of the acquired business shall 
not be transferred to such person if the Commissioner finds that 
such person acquired the business solely or primarily for the 
purpose of obtaining a lower rate of contributions. Instead, such 
person shall be assigned the [applicable] \4\ new employer rate 
under section [insert section of state law]. In determining whether 
the business was acquired solely or primarily for the purpose of 
obtaining a lower rate of contributions, the Commissioner shall use 
objective factors which may include the cost of acquiring the 
business, whether the person continued the business enterprise of 
the acquired business, how long such business enterprise was 
continued, or whether a substantial number of new employees were 
hired for performance of duties unrelated to the business activity 
conducted prior to acquisition.
---------------------------------------------------------------------------

    \2\ The term ``person'' is used consistent with the usage in 
Section (k)(1)(B), SSA. It encompasses a broad range of entities who 
are not ``employers.'' It includes both entities who are not 
``employers'' because they have no payroll or insufficient payroll. 
Note the definition of ``person'' given in subsection (e)(1) of the 
draft language.
    \3\ States should determine if ``employer'' is the appropriate 
term here and in other appearances in this draft language. For 
example, a state may use the term ``employing unit'', ``subject 
employer,'' or ``employer liable for contributions'' to describe an 
entity that is subject to taxation under the state's UC law.
    \4\ The word ``applicable'' is intended to address situations 
where not all ``new'' employers receive the same rate. For example, 
many states assign new employer rates by industry code.
---------------------------------------------------------------------------

    (c)(1) If a person knowingly violates or attempts to violate 
subsections (a) and (b) or any other provision of this Chapter 
related to determining the assignment of a contribution rate,\5\ or 
if a person knowingly advises another person in a way that results 
in a violation of such provision, the person shall be subject to the 
following penalties:
---------------------------------------------------------------------------

    \5\ See Question and Answer 24 regarding payrolling.
---------------------------------------------------------------------------

    (A) If the person is an employer, than such employer shall be 
assigned the highest rate assignable under this Chapter for the rate 
year during which such violation or attempted violation occurred and 
the three rate years immediately following this rate year. However, 
if the person's business is already at such highest rate for any 
year, or if the amount of increase in the person's rate would be 
less than 2 percent for such year, then a penalty rate of 
contributions of 2 percent of taxable wages shall be imposed for 
such year.
    (B) If the person is not an employer, such person shall be 
subject to a civil money penalty of not more than $5,000. Any such 
fine shall be deposited in the penalty and interest account 
established under [insert appropriate section of state law.]''\6\
---------------------------------------------------------------------------

    \6\ This provision permits penalty to be applied to self-
employed financial advisers and individual employees of business. 
See Question and Answer 23 regarding the deposit of the fines in the 
penalty and interest account.
---------------------------------------------------------------------------

    (2) For purposes of this section, the term ``knowingly'' means 
having actual knowledge of or acting with deliberate ignorance or 
reckless disregard for the prohibition involved.
    (3) For purposes of this section, the term ``violates or 
attempts to violate'' includes, but is not limited to, intent to 
evade, misrepresentation or willful nondisclosure.\7\
---------------------------------------------------------------------------

    \7\ This provisions--paragraph (3)--is optional. An actual 
listing of violations may help to deter these violations.
---------------------------------------------------------------------------

    (4) In addition to the penalty imposed by paragraph (1), any 
violation of this section may be prosecuted as a [insert appropriate 
language; for example ``a class A felony'' or ``a Class B 
misdemeanor''] under Section [insert appropriate section] of the 
Criminal Code.\8\
---------------------------------------------------------------------------

    \8\ States should assure that the criminal penalties cited are 
applicable to both individuals and corporations.
---------------------------------------------------------------------------

    (d) The Commissioner shall establish procedures to identify the 
transfer or acquisition of a business for purposes of this section.
    (e) For purposes of this section--
    (1) ``Person'' has the meaning given such term by section 
7701(a)(1) of the Internal Revenue Code of 1986, and
    (2) ``Trade of business'' shall include the employer's 
workforce.\9\
---------------------------------------------------------------------------

    \9\ See Question and Answer 5 regarding whether workforce is 
part of the employer's ``trade or business.'' This definition 
assures that questions will not arise about whether an employer's 
workforce is included in ``trade or business.''
---------------------------------------------------------------------------

    (f) This section shall be interpreted and applied in such a 
manner as to meet the minimum requirements contained in any guidance 
or regulations issued by the United States Department of Labor.\10\
---------------------------------------------------------------------------

    \10\ Subsection (f) is optional. States are encouraged to 
include such language to avoid potential conflicts with any Federal 
regulations finalized after enactment of state law. The language is 
written in terms of minimum Federal requirements to assure states 
are free to adopt more stringent protections to avoid SUTA dumping.
---------------------------------------------------------------------------

Attachment III

            Conformity Checklist for State SUTA Dumping Laws
------------------------------------------------------------------------
                   Questions                            Yes or no
------------------------------------------------------------------------
1. Mandatory Transfers. If Employer A transfers
 its trade or business (including its
 workforce) to Employer B, does the state law
 mandate the transfer of experience from
 Employer A to Employer B when there is
 ``substantially common'' ownership, management
 or control:
    Does this mandate apply to both total and
     partial transfers?
2. Prohibited Transfer. Does state law prohibit
 the transfer of experience (that is, does it
 require a new employer rate be assigned) when
 a person becomes an employer by acquiring an
 existing employer if the purpose of the
 acquisition was to obtain a lower rate?
    Does this prohibition apply to a ``person''
     who, prior to the acquisition of the
     employer, had (a) no individuals in its
     employ and (b) some employment, but not
     enough to be an ``employer'' for purposes
     of state law?
3. Penalties. Does state law impose
 ``meaningful civil penalties'' for
 ``knowingly'' violating and attempting to
 violate the above?
    Why is the penalty ``meaningful?''
    Does state law impose meaningful criminal
     penalties for the same?
    Are these penalties applicable to both the
     person who commits the violation and any
     person (including the employer of the
     advice-giver) who knowingly gives advice
     leading to such a violation?
    Does state law address the situation where
     the person giving the advice may not be an
     employer? (E.g., self-employed financial
     advisors?)
    Does the definition of ``knowingly'' at a
     minimum mean ``having actual knowledge of
     or acting with deliberate ignorance of or
     reckless disregard of the law''?
4. Procedures. Does the law require the
 establishment of procedures to identify SUTA
 dumping?
5. Additional Procedures/Mandates. Optional.
 Does state law require/prohibit the transfer
 of experience in accordance with any
 regulations of the Secretary of Labor may
 prescribe? (If not, future amendments to state
 laws may be necessary.)
------------------------------------------------------------------------

[[Page 58556]]

[FR Doc. 04-21917 Filed 9-29-04; 8:45 am]
BILLING CODE 4510-30-M
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