| IN RE: IN RE: PRO-WALL, INC., DBA PROWALL | ) | DOCKET NO. 05 21844 |
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| FIRM NO. 045,133-00 | ) | DECISION AND ORDER |
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APPEARANCES:
Firm, Pro-Wall Inc., DBA ProWall, by
Law Office of Scott Peterson, per
Scott Peterson
Department of Labor and Industries, by
The Office of the Attorney General, per
Diane Hunter-Cornell, Assistant
The firm, Pro-Wall, Inc., DBA ProWall (hereafter ProWall), filed an appeal with the Board of Industrial Insurance Appeals on December 1, 2005, from Order and Notice Reconsidering Notice and Order of Assessment of Industrial Insurance Taxes No. 0392418 of the Department of Labor and Industries dated September 16, 2005. In this Order and Notice the Department modified Notice and Order of Assessment No. 0392418 of the Department dated April 18, 2005, and determined the firm owed the sum of $19,627.10 to the Department for industrial insurance premiums, penalties, and interest, which accrued from the first quarter of 2002 through the fourth quarter of 2004, and demanded payment of that sum. The appeal is DISMISSED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the firm to a Proposed Decision and Order issued on January 31, 2008, in which the industrial appeals judge dismissed the firm's appeal. All contested issues are addressed in this order.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and the rulings are affirmed.
In the Petition for Review ProWall filed on February 26, 2008, the firm declared it had filed a petition for bankruptcy in the United States Bankruptcy Court for the Western District of Washington. ProWall asserted the filing automatically stayed any further action by this Board in adjudicating its appeal of the Department's order of assessment. We granted ProWall's Petition for Review on March 10, 200, in order to investigate whether further action should be stayed. [2]
In relevant part, 11 USC 362 (b) provides:
(b) The filing of a petition under section 301, 302, or 303 of this title [11 USCS §301, 302, or 303], . . . does not operate as a stay—
. . . .
(9) under subsection (a), of—
(A) an audit by a governmental unit to determine tax liability;
(B) the issuance to the debtor by a governmental unit of a notice of tax deficiency;
(C) a demand for tax returns; or
(D) the making of an assessment for any tax and issuance of a notice and demand for payment of such an assessment (but any tax lien that would otherwise attach to property of the estate by reason of such an assessment shall not take effect unless such tax is a debt of the debtor that will not be discharged in the case and such property or its proceeds are transferred out of the estate to, or otherwise revested in, the debtor).
This code section allows taxing authorities to conclude the process of assessing a tax even after the automatic stay goes into effect. The stay precludes only action to place a lien of property or to collect the debt. Accordingly, the bankruptcy petition ProWall filed does not stay this Board from taking further action on the firm's appeal.
The issue presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law.
FINDINGS OF FACT
1. On April 18, 2005, the Department of Labor and Industries issued Notice of Assessment of Industrial Insurance Taxes No. 0392418 against Pro‑Wall, Inc., DBA ProWall (hereafter ProWall). The Notice and Order of Assessment declared the firm owed the Department the sum of $21,802.28 in taxes, interest, and penalties, which accrued during all four quarters of 2002, 2003, and 2004, and demanded payment of that amount. ProWall protested the notice of assessment on May 18, 2005. On September 16, 2005, the Department issued Order and Notice Reconsidering Notice and Order of Assessment of Industrial Insurance Taxes No. 0392418. The Order and Notice modified the Notice and Order of Assessment by reducing the sum the Department declared ProWall owed during the audit period to $19,627.10. The Order and [3]
Notice was communicated to ProWall on November 12, 2005. On December 1, 2005, ProWall filed a Notice of Appeal with the Board of Industrial Insurance Appeals from the September 16, 2005 Order and Notice. On December 31, 2005, the Board granted the appeal, subject to proof it had been filed within the time limitation allowed by law. The Board assigned Docket No. 05 21844 to the appeal and ordered that further proceedings be held in the matter.2. The September 16, 2005 Notice and Order Reconsidering Order and Notice of Assessment of Industrial Insurance Taxes No. 0392418 of the Department was communicated to ProWall on November 12, 2005.
3. ProWall did not present any evidence to support its contention that the Department's September 16, 2005 Notice and Order Reconsidering Order and Notice of Assessment of Industrial Insurance Taxes No. 0392418 was incorrect.
CONCLUSIONS OF LAW
1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.2. ProWall filed its Notice of Appeal within the time limitation allowed by RCW 51.52.060.
3. ProWall did not present prima facie evidence, as that term is applicable to the provisions of RCW 51.52.050, to require the Department of Labor and Industries to produce evidence in support of its September 16, 2005 Notice and Order.
4. ProWall's appeal is dismissed.
It is ORDERED.
DATED: April 28, 2008.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
CALHOUN DICKINSON Member