ASSESSMENTS
Bankruptcy
The filing of a bankruptcy petition prevents collection action on a debt; it does not stay actions relating to determination of the amount of taxes due and does not prevent the Board from taking further action on an appeal of an assessment. ....Pro-Wall, Inc., 05 21844 (2008)
Classification of business
Although an assessment on appeal does not involve a reclassification, the Board will consider any of the factors the Department addressed in calculating assessment, including whether the appropriate classification was used during the audit period. ....Henry Bacon Building Materials, Inc., 90 0656 (1992) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 92-2-02279-3.]
Communication of order (RCW 51.48.120)
Where service of a notice and order of assessment is perfected by mailing a notice by certified mail to the employer's last known address, and where an attorney or other representative has appeared before the Department on behalf of a firm and expressed desire to receive further communication from the Department regarding the assessment, the Department is obligated to direct all future correspondence to the firm's attorney or representative. ....Bell & Bell Builders (II), 90 5119 (1992)
Decisions appealable - See APPEALABLE ORDERS Informal letters
Delegation of authority to issue Notices and Orders of Assessment
Authority to issue Notices and Orders of Assessment is properly delegated to collection auditors even in the absence of written documentation of the Director's delegation. Efficient use of agency Director's time outweighs value of creating specific written documentation memorializing the delegation of authority. ....Wayne Jamison et ux Wayne Jamison Timberfallers, 87 1383 (1988)
Effect of failure to allow inspection of records - RCW 51.48.040
Where an employer failed to provide records to Department on Fifth Amendment grounds, it is precluded from presenting evidence at the Board that the assessment was incorrect. Citing Annest v. Annest 49 Wn.2d 62 (1956). ....Cheri's Pet Grooming, 89 5939 (1991)
Equitable powers
Because RCW 51.12.070(5) is only one of the criteria to be met by a contractor seeking exemption from responsibility of a subcontractor's premiums, the satisfaction of subsection (5) does not allow for the application of "equitable estoppel" to dispose of the obligation to meet other criteria for the prime contractor exception under RCW 51.12.070. ….GT Drywall, Inc., 10 11537 (2011)
[Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]
Estimated premiums
In an assessment appeal, the Board found that the employer failed to establish equitable estoppel where a Department audit included a determination that employer's premiums would be assessed on the basis that the employer paid employees on a commission basis, the employer failed to show justifiable reliance. ....AEX Corporation, 90 5314 (1992) [Editor's Note: The Board's decision was appealed to superior court under Spokane County Cause No. 93-2-00171-6.]
Any assessment of premiums based upon an estimate of hours worked, as permitted by RCW 51.16.155, must be based upon a reasonable estimate which has some basis in fact. ....NAO Enterprises, 89 1832 (1990)
Existence of partnership
Where individuals became partners upon completion of training period, industrial insurance taxes were payable for an individual who never completed the payments necessary to establish partnership. .....F & R Cliff dba Cliff's Dairy Cow Hoof Trimming, 93 2648 (1994)
Failure to maintain records
Where a firm failed to maintain adequate records but could present only an educated guess regarding the number of hours worked by cab drivers and paid the drivers at the rate of 45 percent of fare-generated fees, the firm failed to establish that it paid the drivers on any basis other than commission. ....AEX Corporation, 90 5314 (1992)
The provisions of RCW 51.48.030 and .040, which require an employer to keep and preserve adequate books and records of employment and make them available for inspection by the Department, do not require a corporation which engaged in no business activity and had no employees to maintain such records. ....NAO Enterprises, 89 1832 (1990)
Limited liability company
Members of a limited liability company that manage the company are exempt from mandatory coverage. ….J D I, LLC, 09 18829 (2010)
Newspaper carrier RCW 51.12.020(10)
The newspaper carrier exemption RCW 51.12.020(10) does not apply to carriers who enter businesses for delivery of newspapers to be resold to that business's own customers. The Board order was appealed to Kitsap County Superior Court No. 12-2-02754-6. ….W.A. Schmittler, 11 23864 (2012)
Piece Work
In an assessment appeal, the Board found equitable estoppel where the employer relied to its detriment on Department representations and past practices on determinations of average rate of compensation for piece workers and where the employer would suffer if the Department were allowed to repudiate or contradict its prior acts, practices, and policies. ....State Roofing & Insulation, Inc., 89 1770 (1991)[Editor's Note: The Board's decision was appealed to superior court under Snohomish County Cause No. 91-2-01375-4.]
Penalties
In assessing a penalty under RCW 51.48.030 for failure to keep records of an employee, the Department may assess a separate penalty for each employee for which records were not kept. …R & G Probst, et ux, dba Diamond Driving, 00 11968 (2001) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 01-2-02279-0.]
Prime contractor liability (RCW 51.12.070)
When the Department has assessed premiums against the prime contractor for work done by a subcontractor, reliance by the prime contractor on the Department of Labor and Industries' website that the subcontractor is in "good standing" is not synonymous with "compliance" with all of the requirements of RCW 51.12.070.
When a prime contractor is liable for the premiums assessed for the work of a subcontractor, the prime contractor discount rate cannot be applied to the work performed by the subcontractor.
….GT Drywall, Inc., 10 11537 (2011)
[Editor's Note: The Board's decision was appealed to superior court under Clark County Cause No. 11-2-00562-7.]
Because RCW 51.12.070 makes the letting contractor primarily and directly responsible for all premiums due for work performed by sub contractors, the Department need not exhaust collection remedies against subcontractors or their bonds before collecting from the letting contractor and may apply payments received first to interest, then fees, then penalties, and then to premiums. ....GL & L Enterprises, Inc. d/b/a Precision Drywall, Inc., 05 13857 (2008)
A firm involved in tree planting and tree thinning contracted directly with landowners and subcontracted with a second firm. The second firm had many claims filed but had not paid industrial insurance taxes. In light of the contractual arrangement, and the fact that the second firm performed the actual work, the Board concluded that the firm was responsible as a prime contractor. Citing Littlejohn Construction v. Department of Labor & Indus., 74 Wn. App. 420 (1994). ....Sylvia Reforestation, Inc., 93 5150 (1994)
Reassumption of jurisdiction (RCW 51.48.131)
Department's failure to act to modify, reverse or change its assessment decision within thirty days of receipt of the employer's appeal renders all subsequent orders null and void and vests jurisdiction with the Board even though the Department failed to forward the appeal to the Board. ....Maid-For-You, 88 4843 (1990)
Subcontractors
A landowner does not "let a contract" within the meaning of RCW 51.12.070 when selling downed timber for harvesting pursuant to a sales contract. The purchaser of the timber is not considered a subcontractor of the landowner/seller. ….Weyerhaeuser Co., 99 12028 (2000)
Successor liability - Limitation of sanctions (RCW 51.16.190)
When a change is business occurs without a change in business type, RCW 51.16.090 does not make the transfer of the old owner's cost experience mandatory but permits the new ownership to prove that the change in ownership, interests, or personal operating property was a "modified" change within the meaning of the statute and thus avoid imposition of the previous owner's cost experience rating. ….Mr. Rooter—South Puget Sound, 10 17889 (2011) [Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 11-2-01983-4.]
The three-year statute of limitation, as set forth in RCW 51.16.190(3), on actions to collect a delinquent assessment does not apply when the successor firm fails to file a report of sale as contemplated by RCW 51.16.200. ….BLC Trucking, Inc., 98 11140 (2000)
Editor's Note: The Board's decision was appealed to superior court under Thurston County Cause No. 00-2-00689-3.]