Section .0100 - Account Charge Protests

Link to law: http://reports.oah.state.nc.us/ncac/title 04 - commerce/chapter 24 - employment security/subchapter d/subchapter d rules.html
Published: 2015

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SUBCHAPTER 24D - TAX ADMINISTRATION

 

SECTION .0100 - ACCOUNT CHARGE PROTESTS

 

04 NCAC 24D .0101          NOTICE OF CLAIM TO EMPLOYER

Upon receipt of a claim for benefits filed by a claimant,

DES shall notify the claimant's last employer and all base period employers of

the claim filed. 

 

History Note:        Authority G.S. 96-4; 96-11.4; 96-15;

Eff. July 1, 2015.

04 NCAC 24D .0102          NOTICE TO

EMPLOYER OF POTENTIAL CHARGES

(a)  DES shall notify each employer in writing of potential

charges to the employer's account.  The notice shall contain the:

(1)           date of the notice;

(2)           claimant's name and social security number;

(3)           date the claimant's benefit year began;

(4)           claimant's weekly benefit amount and weekly

earnings allowance;

(5)           employer's reporting number used to report

wages for the claimant;

(6)           base period wages reported by the employer

by calendar quarter and dollar amount;

(7)           employer's percentage of total base period

wages reported;

(8)           maximum potential charge amount that can be

applied to the employer's experience rating account if the claimant exhausts

his or her benefits;

(9)           a statement containing the employer's right

to protest the notice; and

(10)         the time period within which a protest shall

be filed pursuant to G.S. 96-15(b)(2).

(b)  Notice of potential charges to the employer's account

shall be provided using the following forms, as applicable:

(1)           Notice of Combined Wage Claim and Potential

Charges to Your Account (Form NCUI 551C);

(2)           Notice of Unemployment Claim, Wages

Reported and Potential Charges (Form NCUI 551L);

(3)           Notice of Initial Claim and Potential

Charges to Reimbursable Employer (Form NCUI 551R);

(4)           Notice of Initial Claim and Potential

Charges for Claimants on Temporary Layoff (Form NCUI 551T);

(5)           Reversal of Previously Allowed Noncharging

(Form NCUI 553A);

(6)           Reversal of Previously Denied Noncharging

(Form NCUI 554);

(7)           Administrative Determination Disallowing

Noncharging (Form NCUI 570); or

(8)           List of Charges to Your Account (Form NCUI

626).

 

History Note:        Authority G.S. 96-4; 96-11.1; 96-11.2;

96-11.3; 96-11.4; 96-15;

Eff. July 1, 2015.

 

04 NCAC 24D .0103          REQUIREMENTS FOR FILING PROTESTS

(a)  An employer who protests the benefit charges to its

account shall make the protest as follows:

(1)           in writing within 14 days of the mailing

date of the notice of potential charges;

(2)           by mail to: DES Employer Benefit

Charges/Benefit Charges Unit, Post Office Box 25903, Raleigh, North Carolina

27611-5903; or facsimile to 919-733-1126; and

(3)           list all grounds for the protest as

prescribed under Rule .0105 of this Section.

(b)  Any of the following forms, when completed with the

information indicated in Paragraph (a) of this Rule, shall constitute

compliance with this Rule:

(1)           Notice of Combined Wage Claim and Potential

Charges to Your Account (Form NCUI 551C);

(2)           Administrative Determination Disallowing

Noncharging (Form NCUI 570);

(3)           List of Charges to Your Account (Form NCUI

626); or

(4)           Unemployment Tax Rate Assignment (Form NCUI

104).

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4;

Eff. July 1, 2015.

 

04 NCAC 24D .0104          TIME FOR FILING PROTESTS

The provisions of 04 NCAC 24A .0106 shall apply in

determining timeliness of a protest.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4;

Eff. July 1, 2015.

 

04 NCAC 24D .0105          GROUNDS FOR PROTEST

An employer shall only file protests for the following

reasons:

(1)           clerical errors in the list of charges;

(2)           charges resulting from individuals who were never

employed by the employer;

(3)           charges resulting from individuals who remain

employed by the employer; or

(4)           errors in adding charges to an incorrect account.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4;

96-11.5;

Eff. July 1, 2015.

 

04 NCAC 24D .0106          DES'S RESPONSIBILITIES UPON RECEIPT OF

PROTEST

(a)  DES shall review the employer's account charges and

investigate the accuracy of the charges based on the reasons provided by the

employer in the protest.

(b)  Upon completion of its review, DES shall issue a

written determination of its findings based on the reasons provided by the

employer in the protest.

 

History Note:        Authority G.S. 96-4; 96-11.4;

Eff. July 1, 2015.

 

04 NCAC 24D .0107          DETERMINATION ON GROUNDS CONTAINED IN

PROTEST

The determination by DES shall contain:

(1)           notice of whether the relief sought by the employer

in the protest was granted or denied;

(2)           any adjustments that have been made to the list of

charges if the relief sought in the protest was granted, or the reasons for

denial if the relief sought in the protest was denied;

(3)           the date the determination was mailed to the employer;

(4)           the employer's right to appeal the determination consistent

with 04 NCAC 24C .0203; and

(5)           the time period within which an appeal shall be

filed.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4;

Eff. July 1, 2015.

 

SECTION .0200 - REQUEST FOR NONCHARGING OF BENEFITS PAYMENTS

 

04 NCAC 24D .0201          MAKING THE REQUEST FOR NONCHARGING

An employer who requests noncharging of benefit charges

shall make the request as follows:

(1)           by stating the reason(s) for the request in

writing;

(2)           within 15 days of the mailing date of the notice of

potential charges; and

(3)           sent by mail to: DES Employer Benefit

Charges/Benefit Charges Unit, Post Office Box 25903, Raleigh, North Carolina

27611-5903; or by facsimile to 919-733-1126.

 

History Note:        Authority G.S. 96-4, 96-11.3, 96-11.4;

Eff. July 1, 2015.

 

04 NCAC 24D .0202          DETERMINATION ON REQUESTS FOR

NONCHARGING

DES shall render a determination in writing as to each

request for noncharging.  The determination shall contain notice of whether the

request for noncharging has been granted or denied.

(1)           Where a request for noncharging is granted, the

employer's account shall be protected from benefit charges for benefit payments

made after the last day that the claimant worked, based on wages reported by

the employer before the claimant separated from the employer.

(2)           Where a request for noncharging is denied, the

determination shall contain:

(a)           the reason(s) for denying the request;

(b)           the mailing date of the determination;

(c)           the time period within which a protest of

the denial must be filed; and

(d)           instructions for protesting the denial to

the Employer Benefit Charges/Benefit Charges Unit by mail to Post Office Box

25903, Raleigh, North Carolina 27611-5903, or facsimile to (919) 733-1126.

 

History Note:        Authority G.S. 96-4; 96-11.1; 96-11.3;

96-11.4;

Eff. July 1, 2015.

 

04 NCAC 24D .0203          APPEALING DENIAL OF REQUEST FOR

NONCHARGING

(a)  The employing unit may file an appeal following an

unsuccessful protest of a request for noncharging.

(b)  Employers shall direct all appeals from denials of a

request for noncharging to the Appeals Section.

The provisions of 04 NCAC 24A .0106 shall apply in

determining timeliness of an appeal.

(c)  Hearings on the denial of noncharging shall be

conducted pursuant to the provisions of 04 NCAC 24C .0209.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4;

Eff. July 1, 2015.

 

SECTION .0300 - ADEQUACY

 

04 NCAC 24D .0301          ADEQUACY THRESHOLD

(a)  An employer who establishes a pattern of failing to

provide a timely response or adequate response to the Request for Separation

Information (Form NCUI 500AB) under 04 NCAC 24B .0107, shall not be relieved of

charges for resulting erroneous unemployment insurance benefit payments.

(b)  In determining the timeliness of an employer response,

DES shall consider the following:

(1)           whether the response was received within 14

days pursuant to G.S. 96-15; and

(2)           whether the employer had good cause for

failing to respond within the 14 day period.

(c)  In determining the adequacy of an employer response,

DES shall consider the following:

(1)           what information was requested;

(2)           whether the response to the request is

sufficient to satisfy the request;

(3)           whether an employer should have provided

DES with copies of relevant handbooks, policies, warnings, recordings,

documents, or other information related to the claim; and

(4)           whether the employer's responses provide

enough facts to enable an authorized DES representative to make a correct legal

determination without having to contact the employer to obtain additional

information.

(d)  An employer who fails to submit timely or adequate

responses to two or two-percent, whichever is greater, of the total requests

for separation information (Form NCUI 500AB) under G.S. 96-11.4 during the

reporting cycle, shall not be relieved of erroneous payments in the following

charging cycle as defined under 04 NCAC 24A .0105.

(e)  DES shall review each employer's account every

reporting cycle to determine whether the employer has a pattern of failing to

respond timely or adequately to requests for separation information under G.S.

96-11.4, and shall issue an Adequacy Threshold Determination at the conclusion

of the reporting year cycle if the employer has met the criteria defined under

Paragraph (d) of this Rule.

 

History Note:        Authority G.S.

96-4; 96-11.3; 96-11.4; 96-15; 23 U.S.C. 3303;

Eff. July 1, 2015.

 

04 NCAC 24D .0302          ADEQUACY

THRESHOLD DETERMINATION

(a)  The Adequacy Threshold Determination shall include:

(1)           the effect of the determination on the

employer's account;

(2)           the reasons for the determination;

(3)           the date the determination was mailed to

the employer;

(4)           instructions for protesting the

determination; and

(5)           the time period within which a protest must

be filed.

(b)  An employer may protest its Adequacy Threshold

Determination and shall file its written request with DES's Tax Administration

Section by mail, facsimile, or email pursuant to 04 NCAC 24A .0104(n).

(1)           The request shall include the following:

(A)          the name of the employing unit;

(B)          the address of the employing unit;

(C)          the account number of the employing unit;

(D)          a brief statement of the question involved and

reasons for the request; and

(E)           the name, address, and official position of the

individual making the request.

(2)           The written request shall be filed within 15

days after the date that the Adequacy Threshold Determination notice was mailed

to the employer, and the timeliness requirements of 04 NCAC 24A .0106 shall

apply.

(c)  Following the written request, the Tax Administration

Section shall review the employer's request for review and issue a written

determination.  The determination shall contain the following:

(1)           notify the employing unit of whether its

application was granted or denied;

(2)           indicate whether additional information

from the employing unit is required; and

(3)           explain the reasons for the ruling and what

information was considered.

(d)  No further right of appeal from an unfavorable written

determination of a protest of an adequacy threshold determination shall exist

unless and until an Adequacy Penalty Determination, as defined under Rule .0303

of this Section is subsequently issued at the conclusion of the employer's

charging year.

 

History Note:        Authority G.S. 96-4; 96-11.3; 96-11.4; 23

U.S.C. 3303;

Eff. July 1, 2015.

 

04 NCAC 24D .0303          ADEQUACY PENALTY DETERMINATION

(a)  DES shall issue an Adequacy Penalty Determination at

the end of each charging year cycle if the employer's account is not relieved

of charges for untimely or inadequate responses for particular claims during

that charging year cycle, resulting from an adequacy threshold determination in

the prior charging year cycle that the employer met or exceeded the adequacy

threshold. 

(b)  The Adequacy Penalty Determination shall include the

following:

(1)           a listing containing the specific claims

that would have resulted in a relief from charges as a result of erroneous

unemployment insurance payments that were later reversed on appeal; and

(2)           instructions for protesting the Adequacy

Penalty Determination;

(c)  An employer may protest its Adequacy Penalty

Determination and shall file its written request with DES's Tax Administration

Section by mail, facsimile, or email pursuant to 04 NCAC 24A .0104(n).

(1)           The request shall include:

(A)          the name of the employing unit;

(B)          the address of the employing unit;

(C)          the account number of the employing unit;

(D)          a brief statement of the question involved and

reasons for the request; and

(E)           the name, address, and official position of the

individual making the request.

(2)           The written request shall be filed within

15 days after the date that the Adequacy Penalty Determination was mailed to

the employer, and the timeliness requirements of 04 NCAC 24A .0106 shall apply.

(3)           Following the written request, the Tax

Administration Section shall review the employer's request and issue a written

determination. The determination shall include the following:

(A)          notify the employing unit of whether its application

was granted or denied;

(B)          indicate whether additional information from the

employing unit is required;

(C)          explain the reasons for the ruling and identify the

information considered; and

(D)          instructions for appealing the denial to the Board

of Review.

 

History Note:        Authority G.S.

96-4; 96-11.3; 96-11.4; 23 U.S.C. 3303;

Eff. July 1, 2015.

 

04 NCAC 24D .0304          APPEALING ADEQUACY PENALTY

DETERMINATIONS

(a)  An employer may file an appeal of its Adequacy Penalty

Determination and request a hearing.  The appeal shall be filed with DES's Tax

Administration Section by mail, facsimile, or email pursuant to 04 NCAC 24A

.0104(n).

(b)  The appeal shall contain the following:

(1)           the date of the appeal;

(2)           the identity of the determination, decision

or result being appealed;

(3)           a clear statement of the party's intent to

appeal;

(4)           reasons for the appeal; and

(5)           the name of the party appealing the

determination, decision, or result.

(c)  The provisions of 04 NCAC 24A .0106 apply in

determining the timeliness of an appeal.

(d)  Appeal hearings from Adequacy Penalty Determinations

shall be conducted as set forth in Section .1100 of this Subchapter.

 

History Note:        Authority G.S.

96-4; 96-11.3; 96-11.4; 23 U.S.C. 3303;

Eff. July 1, 2015.

 

Section .0400 - Voluntary Election and Payments

 

04 NCAC 24D .0401          Voluntary Election by Employers

(a)  Any employer electing coverage under G.S. 96-9.8 of the

Employment Security Law shall make the election by completing the Employer

Status Report (Form NCUI 604), available on DES's website at www.ncesc.com.

(b)  The information provided in the Employer Status Report

(Form NCUI 604) shall be provided in the same manner as required under Rule

.0602 of this Subchapter.

(c)  Voluntary election shall not be granted if DES

determines that potential benefit payments would exceed the taxes received from

the employer.

(d)  The effective date of coverage is January 1, or the

first day of employment in the year in which the voluntary election is made,

whichever is later.

(e)  Employers who satisfy the criteria for voluntary

election of coverage under this Rule, shall have a contributory unemployment

tax account, and shall not have a reimbursable account.

 

History Note:        Authority G.S. 96-4; 96-9.6; 96-9.8; 26

U.S.C. 3309;

Eff. July 1, 2015.

 

04 NCAC 24D .0402          Election TO REIMBURSE IN LIEU OF

CONTRIBUTIONS

(a)  An employer electing to pay reimbursements for

benefits, rather than contributions who meets the requirements of Rule .0401 of

this Section, shall make the election by completing the Employer Status Report

(Form NCUI 604) as set forth in Rule .0602 of this Subchapter, and mailing it

to DES's Tax Administration at Post Office Box 26504, Raleigh, NC 27611.

(b)  A qualifying employer under G.S. 96-9.6 electing to pay

reimbursements for benefits, rather than contributions, shall make the election

by writing a letter stating their election to the Tax Administration Section of

DES at Post Office Box 26504, Raleigh, NC 27611 within 30 days after the

employer receives written notification from the Division that it is eligible to

make an election as defined under G.S. 96-9.6.

 

History Note:        Authority G.S. 96-4; 96-9.6; 96-9.8; 26

U.S.C. 3309;

Eff. July 1, 2015.

 

04 NCAC 24D .0403          Payment of Employer Taxes

(a)  Taxes shall be due and payable to the DES's

administrative office in Raleigh, North Carolina, or to an agent of DES designated

to accept payments.

(b)  Tax payments shall be made as follows:

(1)           electronic check;

(2)           credit card;

(3)           Automated Clearing House (ACH) credit;

(4)           business check with funds drawn from a U.S.

financial institution;

(5)           cashier's check from a U.S. financial

institution; or

(6)           cash.

(c)  Payments shall be made payable to the Division of

Employment Security and sent by U.S. mail or delivery service to DES Tax

Administration at Post Office Box 26504, Raleigh North Carolina 27611.

(d)  Timeliness of payments shall be determined pursuant to

the 04 NCAC 24A .0106.

 

History Note:        Authority G.S. 96-4; 96-9.15;

Eff. July 1, 2015.

 

Section .0500 - Records

 

04 NCAC 24D .0501          Records of EmployERs

(a)  Each employer shall keep accurate employment and

payroll records. These records shall be maintained for five years after the

calendar year in which wages for services are paid and shall include the

following:

(1)           the name and correct address of the

employer;

(2)           the name and address of each division,

branch, or establishment operated, owned, or maintained by the employer at

different locations in North Carolina; and

(3)           the following information for each

individual performing services for the employer:

(A)          the individual's name;

(B)          the individual's address;

(C)          the individual's social security number;

(i)            if an individual performing services for an

employer does not have a social security number, the employer shall request

that the individual produce a receipt issued by the Social Security

Administration, showing that the individual has filed an application for a social

security number;

(ii)           the employer shall copy and retain a copy of

the receipt, and the individual must retain the receipt;

(D)          the dates on which the individual performed services

for the employer;

(E)           the actual number of hours worked each day and total

number of hours worked each week;

(F)           daily attendance record, including times that the

individual did not work for reasons other than lack of work;

(G)          the state or states in which the individual

performed services;

(i)            the base of operations if any of the services

are performed outside North Carolina, and are not incidental to the services

performed in North Carolina; or

(ii)           if there is no base

of operations, then the place from which services are directed or controlled;

and

(iii)          the individual's

state of residence;

(H)          the amount of wages paid to the individual for each

separate payroll period, if paid weekly, or if not paid weekly, by calendar

weeks;

(i)            date of payment of the wages; and

(ii)           amounts or remuneration paid to each individual

for each separate payroll period other than "wages," as defined in

G.S. 96-1(b)(28);

(I)            amounts paid to individuals as allowances or

reimbursements for travel or other business expenses, dates of payments, and

the amounts of expenditures actually incurred and documented by the individual;

(J)            whether, during any payroll period the individual

worked less than full time, and if so, the hours and dates worked;

(K)          reasons for an individual's separation from work;

(L)           any contract between the employer

and the worker;

(M)         where the employer considers the worker to be an

independent contractor or otherwise not an "employee" under the

Employment Security Law, all records, documentation and evidence which supports

that classification; and

(N)          federal and state tax returns for the periods when

the worker was employed.

(b)  In addition to the records required in Paragraph (a) of

this Rule, each employer shall keep the following:

(1)           the records that establish and reflect

ownership and any changes of ownership of the employer;

(2)           the address where the headquarters of the

employer is located; 

(3)           the mailing address of the employer; and

(4)           the address at which the records are

available for inspection or audit by representatives of DES.

(c)  Each employer's records shall reflect:

(1)           the addresses of owners; or

(2)           in the event the employer is a corporation

or an unincorporated organization, the records shall show the addresses of

directors, officers, and any individuals on whom subpoenas, legal processes, or

citations may be served in North Carolina.

 

History Note:        Authority G.S. 96-4; 96-9.15; 96-10; 26

U.S.C. 3306;

Eff. July 1, 2015.

 

04 NCAC 24D .0502          Wage Records

(a)  Wages paid for services excluded from the definition of

"employment" as defined in G.S. 96-1(b)(12) shall be separately

reflected in the employer's records to indicate the following:

(1)           the time of service; and

(2)           remuneration for services that is separate

from taxable wages.

(b)  Where there are pay periods in which an individual

performs services excluded from the term "employment," and any service

which is "employment," the employer's record shall reflect the hours

spent in the excluded service and the hours spent in "employment."

(c)  If any remuneration other than monetary wages is paid

to or is received by an individual related to services performed by the

individual, the records shall show the total amount of cash wages and the cash

value of any other remuneration paid by the employer.

(d)  If any part of an individual's wages is not paid in

cash, the reasonable cash value of the remuneration other than cash shall be

deemed for all relevant purposes as follows:

(1)           the amount that is agreed upon between the

employer and the individual if:

(A)          the terms of the agreement are reported to DES; and

(B)          DES determines that the agreed value or amount is

reasonable pursuant to IRS Publication 15-B; or

(2)           the amount DES determines if:

(A)          the amount agreed upon is unreasonable; or

(B)          the employer and the individual fail to agree upon

an amount; or

(C)          the employer fails to report the terms of an

agreement to DES; and

(D)          the employer fails to show the cash value of the

noncash remuneration prior to the due date of contributions with respect to the

wages.

(3)           DES shall determine an amount by reviewing

documents, tax values, internet sites and other available information that

reflects the market value.

(e)  This Rule incorporates material found in the IRS

Publication 15-B by reference and includes subsequent amendments and editions

of the referenced material in accordance with G.S. 150B-21.6.  Copies of the

incorporated material found in IRS Publication 15-B are located at 700 Wade

Avenue, in Raleigh, North Carolina and may be obtained at no cost to the public

by request by contacting DES as specified under 04 NCAC 24A .0201.

 

History Note:        Authority G.S. 96-1(b)(28);

96-4; 26 U.S.C. 3306; IRS Pub. 15-B;

Eff. July 1, 2015.

 

04 NCAC 24D .0503          Allowances and Reimbursement Advances

(a)  Allowances, advances of reimbursements paid to an

individual in employment for traveling, and other bona fide expenses incurred

or reasonably expected to be incurred in the business of the individual's

employer shall not be treated as wages, provided:

(1)           a separate payment is made for the

expenses; or

(2)           itemized accounting records are kept

indicating the separate amounts where a single payment covers both wages and

expenses combined; and

(3)           the amount of payments for expenses

excluded from wages shall not exceed the amounts allowable as deductible

expenses by income tax regulations under the United States Internal Revenue

Code, 26 U.S.C. 62(2) and 26 U.S.C. 162(a)(2).  Where the United States

Internal Revenue Service (IRS) has not made a determination, DES shall make an

independent determination.

(b)  Where an employee must pay traveling and other expenses

out of commissions or salary and these amounts are not accounted for

separately, the entire amount of commissions or salary shall be considered

wages, unless the employer submits itemized records which show that a certain

percentage of commissions or salary is expenses. 

(1)           The money value for room and board shall

not be included in wages if the room and board is provided to the employee for

the convenience of the employer. 

(A)          If the room and board has been excluded from wages

by the IRS for income tax withholdings, FICA and FUTA, it shall be considered

to be for the convenience of the employer and excluded from wages.

(c)  This rule incorporates 26

U.S.C. 62(2) "Adjusted Gross Income Defined" and 26 U.S.C. 162(a)(2)

"Traveling Expenses" by reference

and includes subsequent amendments and editions of the referenced material in accordance with G.S. 150B-21.6.  Copies of the

incorporated material found in 26 U.S.C. 62(2) and 26 U.S.C. 162(a)(2) are

located at 700 Wade Avenue, in Raleigh, North Carolina, and may be obtained by request at no cost to the public by

contacting DES as specified under  04 NCAC 24A .0201.

 

History Note:        Authority G.S. 96-4; 150B-21.6; 26 U.S.C.

62(2); U.S.C. 162(a)(2).

Eff. July 1, 2015.

 

04 NCAC 24D .0504          Manner of Recordkeeping

(a)  Each employer shall maintain records as prescribed in

this Section.

(b)  All records shall be kept and maintained in a manner

that preserves the integrity of all reports that the employing unit is required

to file with DES.

(1)           Records shall be accessible to authorized

representatives of DES within the geographical boundaries of the State of North

Carolina.

(2)           When records are not maintained, or are not

available within North Carolina, the employing unit shall pay to DES the

expenses and costs incurred when a representative of DES is required to travel

outside the State of North Carolina to inspect or audit the employing unit's

records or provide for delivery of the required records for inspection or audit

to DES via mail or electronic transmission.

(3)           Where records are delivered via electronic

transmission, the employer shall provide DES with all necessary information to

access the content of the electronic transmission.

(c)  Where any part of an employing unit’s accounting

records are maintained by an automated data processing system, the employing

unit shall provide the following:

(1)           audit trails with all supporting

documentation;

(2)           general accounting books with any ledgers

containing source references that coincide with financial reports for reporting

periods; and

(3)           a description of the automatic data

processing portion of the employing unit's accounting system. 

(d)  Each employing unit, when requested by DES, shall

furnish a job description of duties performed by any individual or group of

individuals who are performing or have performed services for the employing

unit.

(e)  Records prescribed by this Subchapter shall be preserved

for five years after the calendar year in which wages for services are paid.

 

History Note:        Authority G.S. 96-4; 96-10; 26 U.S.C.

3306;

Eff. July 1, 2015.

 

Section .0600 - Reports

 

04 NCAC 24D .0601          GENERAL FORMAT OF REPORTS AND FORMS

AND METHODS OF SUBMISSION

(a)  The following shall file the portion of the required

Employer's Quarterly Tax and Wage Report (NCUI 101) that contains the name,

social security number, and gross wages of each employee on magnetic or

electronic media using a compact disk, online remote tax filing, or upload of

data file via the internet format:

(1)           employers with 25 or more employees in any

one calendar quarter; and

(2)           other entities, including agents reporting

on behalf of employers, who file reports for a client employer with a total of

25 or more employees in any one calendar quarter.

(b)  Quarterly Employer's Tax and Wage Reports (Form NCUI

101) shall contain the individual employees' wages section and wage summary

section. 

(c)  Employers, including agents, who file an Employer's

Quarterly Tax and Wage Report for a client employer with less than 25 total

employees in any one calendar quarter may use magnetic or electronic media

reporting.  Employers with less than 25 employees may also file paper returns.

(d)  A magnetic or electronic media wage report from agents

reporting on behalf of employers may contain information from multiple

employers.

 

History Note:        Authority G.S. 96-4; 96-9.15;

Eff. July 1, 2015.

 

04 NCAC 24D .0602          STATUS REPORTS 

(a)  Each employing unit shall file an Employer Status

Report (Form NCUI 604) with DES within 10 days of becoming subject to the

Employment Security Law.  The Employer Status Report shall contain the

following:

(1)           the name and address of the business;

(2)           names, social security numbers, and

addresses of the owners and responsible officers of the business;

(3)           any records pertaining to contracts for business

acquisitions that indicate successorship status; and

(4)           any information about company officers in

continuity of control cases.

(b)  An employing unit that ceases business, transfers,

leases, or sells all or any part of the assets of its business, or changes the

trade name or address of the business shall give notice to DES within 10 days

by filing a status report.  The status report shall contain, in addition to the

requirements listed under Paragraph (a) of this Rule, the former name and

address of the business.

 

History Note:        Authority G.S. 96-4; 96-10; 96-11.7;

Eff. July 1, 2015.

 

04 NCAC 24D .0603          QUARTERLY REPORTS FROM TAXED EMPLOYERS

(a)  Each employer, other than a domestic employer who has

elected to report and pay annually under G.S. 96-9.15(f), shall file with DES,

within the month during which contributions for any period become due, an

Employer's Quarterly Tax and Wage Report (Form NCUI 101) for the preceding

calendar quarter that shall indicate the following:

(1)           the total amount of remuneration paid for

employment, or proof that no remuneration was paid during the quarter;

(2)           the total amount of wages paid for

employment;

(3)           the amount of wages paid to each individual

employee; and

(4)           the name and social security number of each

individual to whom the wages were paid and the federal identification number,

if one exists.

 

History Note:        Authority G.S. 96-4; 96-9.6; 96-9.15; 96-10;

Eff. July 1, 2015.

 

04 NCAC 24D .0604          ANNUAL REPORTS FROM DOMESTIC EMPLOYERS



(a)  A request by a domestic employer to report wages paid,

and pay contributions on an annual basis shall be made in writing and delivered

to DES pursuant to 04 NCAC 24A .0104.  There is no special form or format

required for the written request.

(b)  Each qualified domestic employer who has made an

election as referenced in Paragraph (a) of this Rule shall file with DES, a

domestic Employer's Annual Tax and Wage Report (Form NCUI 101-C), that shall

include all information specified under Rule .0603 of this Section and

subtotaled for each quarter during the calendar year in which wages were paid.

 

History Note:        Authority G.S. 96-4; 96-9.15; 96-10;

Eff. July 1, 2015.

 

Section .0700 - TRANSFER OF

EXPERIENCE RATING TO RELATED ENTITY SUCCESSOR ACCOUNT

 

04 NCAC 24D .0701          TRANSFER OF EXPERIENCE

(a)  A new successor employer that acquires a part of an entity

related to the transferring employer shall request a percentage of the

transferring employer's experience rating when:

(1)           the successor employer is a distinct and

severable portion of the transferring employer;

(2)           it is severed from the control of the

transferring employer;

(3)           a severable and distinct portion of the

successor employer would not be a disregarded entity or subsidiary of the

transferring employer but an entity that is operational on its own with no

support from the transferring employer;

(4)           the successor employer is comprised of

shareholders or owners, or employees from the transferring employer; and

(5)           the successor employer's operations may

remain similar to those of the transferring employer including proprietorships

that split between family members as defined in G.S. 96-1(b)(18), spin-off

corporations, partnerships that split operations between partners, or any other

division in operations, that would not result in denial of a new discrete

employer number to the successor employer pursuant to G.S. 96-11.7(c). 

(b)  A transferring employer shall be left operational on

its own with no support from the successor employer.

(c)  A successor employer shall request a transfer of

experience under conditions described in Rule .0702 of this Section and a

transferring employer shall request to retain the remaining experience pursuant

to Rule .0702 of this Section. 

(d)  The percentage of the experience that is transferred to

the successor employer shall be transferred as of the date of acquisition for

use in determining the successor's contribution rate.

 

History Note:        Authority G.S. 96-4; 96-10; 96-11.7;

Eff. July 1, 2015.

 

04 NCAC 24D .0702          REQUIREMENTS FOR TRANSFER OF

EXPERIENCE

(a)  A successor employer shall submit the following

information to DES when requesting a partial transfer of experience rating:

(1)           the total three-year taxable payroll ending

June 30th prior to the last computation date for the  transferring

employer; and

(2)           the total three-year taxable payroll ending

June 30th prior to the last computation date for the transferring

employer, relating to the severable portion acquired.

(b)  Not withstanding Paragraph (a) of this Rule, an

alternate three-year payroll may be used when the severed or retained unit was

not operated by the transferring employer during the three-year period ending

June 30th prior to the last computation date.

(c)  A successor employer that acquires the experience

rating account, either total or partial, shall be liable for accrued benefits

and acquire related rights based on the transferring employer's employment

prior to the acquisition.  Benefit charges to the transferring or successor

employer shall be made in accordance with the percentage used to transfer the

experience rating account, based on wages paid prior to the transfer.

(d)  The requirements of this Section shall apply to

transfers mandated by law, and those requiring DES's approval pursuant to G.S.

96-11.7.

(e)  The completion and submission of Form NCUI 603 with the

information described in Paragraph (a) of this Rule, and in accordance with

Rule 04 NCAC 24A .0104(o) shall satisfy the requirements of this Rule.

 

History Note:        Authority G.S. 96-4; 96-10; 96-11.7;

Eff. July 1, 2015.

 

 

SECTION .0800 - AGREEMENTS TO

COMPROMISE

 

04 NCAC 24D .0801          APPLICATION

(a)  An employing unit may file a request for compromise of

its tax debt with DES.

(b)  A request for compromise shall include the following:

(1)           the name and address of the employing unit;

(2)           the date the request to compromise is made;



(3)           the date the requested compromise is

requested to be effective;

(4)           stated reasons for the request to

compromise;

(5)           evidence to support the claim or reasons

for the request;

(6)           the amount and terms offered by the

employer to settle the debt; and

(7)           the signature of a duly authorized

representative of the employer.

(c)  The employer shall provide all information requested by

the Department pursuant to Section .0500 of this Section for the determination

of the compromise.

(d)  The request for compromise shall be filed with DES's

Tax Administration Section by mail, facsimile, or email. pursuant to 04 NCAC

24A .0104(n).

 

History Note:        Authority G.S. 96-4; 96-10; 96-10.1;

Eff. July 1, 2015.

 

SECTION .0900 - SPECIAL TAX

INVESTIGATIONS

 

04 NCAC 24D .0901          SPECIAL TAX INVESTIGATIONS

(a)  When it is discovered by a representative of DES that a

claimant is alleging that he or she was an employee and the employer is

alleging that the claimant was not an employee, the matter shall be referred to

DES's Assistant Secretary in writing. 

(b)  The Assistant Secretary, on behalf of DES, shall issue

a Result of Investigation by the Tax Administration Section upon receipt of the

findings of the investigation.  The Result of Investigation shall be in writing

and mailed to each party to the controversy pursuant to 04 NCAC 24A .0103.

(c)  The Result of Investigation

shall provide notice of each party's rights for filing an appeal to obtain a

hearing before the Board of Review, and the time period within which an appeal

shall be filed by mail to the Board of Review, ATTN: Legal Services

Section, Post Office Box 25903, Raleigh, 27611-5903.

(d)  Appeal hearings pursuant to this Section shall be upon

order of the Board of Review and conducted pursuant to Rule .1103 of this

Subchapter.

 

History Note:        Authority G.S. 96-4; 96-9.2;

Eff. July 1, 2015.

 

SECTION .1000 - REQUESTS AND

HEARINGS TO REVIEW AND REDETERMINE TAX RATE

 

04 NCAC 24D .1001          REQUEST

FOR REDETERMINATION OF TAX RATE

(a)  An employer may request a review and redetermination of

its tax rate after receiving notice of the tax rate. 

(b)  An employer requesting a review and redetermination of

its tax rate shall file its written request with DES's Tax Administration

Section by mail to Post Office Box 26504, Raleigh, NC 27611, facsimile to (919)

733-1255, or email to des.tax.customerservice@nccommerce.com.

(1)           The request shall include the following:

(A)          the name of the employer;

(B)          the address of the employer;

(C)          the account number of the employer;

(D)          a brief statement of the question involved and

reasons for the request; and

(E)           the name, address, and official position of the

individual making the request.

(c) The request for a review and redetermination shall be

filed on or before prior to May 1 following the effective date of the

contribution rate pursuant to G.S. 96-9.2(d). 

 

History Note:        Authority G.S. 96-4; 96-9.2;

Eff. July 1, 2015.

 

04 NCAC 24D .1002          DIVISION’S OBLIGATIONS

(a)  The Division shall review the employing unit's request

to review and redetermine its tax rate and all available facts, and shall issue

a written ruling. The ruling shall be mailed to the employing unit's address as

set forth in 04 NCAC 24A .0103 and include the following:

(1)           notify the employing unit of whether its

application was granted or denied;

(2)           the applicable legal authority, with

specific citations, for the ruling;

(3)           contain the mailing date of the notice;

(4)           a statement containing the employer's right

to appeal the notice; and

(5)           the time period within which an appeal

shall be filed.

(b)  The employing unit may file an appeal of the ruling and

request a hearing.

(1)           The appeal shall be filed with DES's Tax

Administration Section by mail, facsimile, or email pursuant to Rule 04 NCAC

24A .0104(o).

(2)           Hearings requested pursuant to this Section

shall be conducted as set forth in Rule .1103 of this Subchapter.

 

History Note:        Authority G.S. 96-4; 96-9.2;

Eff. July 1, 2015.

 

04 NCAC 24D .1003          CONTINUED PAYMENTS REQUIRED

The employer shall continue to pay contributions at the rate

assigned pending any hearing on an application for review and redetermination of

tax rate until finally adjudicated.  If the rate assigned is subsequently

changed by a ruling of the Board of Review or the courts, the employer shall be

entitled to a refund, or be liable for additional contributions.

 

History Note:        Authority G.S. 96-4; 96-9.2; 96-10;

Eff. July 1, 2015.

 

SECTION .1100 - TAX LIABILITY

HEARINGS

 

04 NCAC 24D .1101          APPEALING A TAX MATTER

(a)  All appeals regarding tax matters, or monetary

eligibility shall be filed with the DES Tax Administration Section pursuant to 04

NCAC 24A .0104(n).

(b)  A written appeal under this rule shall contain the

following:

(1)           the date of the appeal;

(2)           the identity of the determination,

decision, or result being appealed;

(3)           a clear statement of the party's intent to

appeal;

(4)           reasons for the appeal; and

(5)           the name of the party appealing the

determination, decision, or result.

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

04 NCAC 24D .1102          SCHEDULING TAX HEARINGS 

(a)  A notice of the hearing shall be mailed to each party

at least fourteen days before the hearing date. 

(b)  The hearing notice shall include the following:

(1)           identify the determination, decision, or

result being appealed or protested;

(2)           the name of the appealing or protesting

party;

(3)           the date and time of the hearing;

(4)           if requested at the time of the filing of

the appeal, the physical location of an in-person hearing;

(5)           the telephone number at which each party

will be called for a telephone hearing;

(6)           each issue, with statutory reference, to be

heard and decided;

(7)           the name and contact information for the

Board of Review or designated Hearing Official;

(8)           the manner in which witnesses may offer

evidence and participate in the hearing;

(9)           each party's right to obtain a legal

representative as defined in 04 NCAC 24A .0105;

(10)         instructions for requesting a rescheduling

of the hearing;

(11)         notice that a party may object to a

telephone hearing and request an in-person hearing;

(12)         a statement of each party's right to request

the issuance of a subpoena for the production of records or individuals to

appear to testify, and instructions for how to do so. 

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

04 NCAC 24D .1103          TELEPHONE HEARINGS

(a)  Hearings shall be conducted by telephone conference

call, unless a request is made for an in-person hearing at the time the appeal

is filed, or an objection is made pursuant to Rule .1104 of this Section. 

(b)  In cases of telephone hearings, the Board of Review

shall provide a Telephone Hearing Questionnaire for each party to submit each

telephone number to be called by the Board of Review or its designated Hearing

Official for the hearing.  If a party fails to submit a telephone number to be

called for the hearing, the Board of Review shall call each party at the

telephone number listed on the hearing notice.

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

04 NCAC 24D .1104          IN-PERSON HEARINGS

(a)  A party shall only request an in-person hearing at the

time the appeal is filed in writing, or by filing a written objection to the

telephone conference call, received at least seven days before the scheduled

hearing.

(b)  If travel is required to conduct the in-person hearing,

the objecting party shall travel to a location convenient to the non-objecting

party, as determined by the Board of Review.

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

04 NCAC 24D .1105          RESCHEDULING A TAX HEARING

(a)  The Board of Review may continue or adjourn a hearing

at any time.

(b)  A request for a continuance of a hearing made prior to

the hearing date shall be in writing and shall specify the reasons for the

request. 

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

04 NCAC 24D .1106          SUBPOENAS

(a)  Any party's request for a subpoena to be issued by the

Board of Review shall be in writing, sent to the Board of Review, and shall

include:

(1)           the name of the party requesting the

subpoena;

(2)           the claimant's name, if applicable;

(3)           the employer's name, if applicable;

(4)           the docket number of the case; 

(5)           the name, address, and telephone number of

each person sought for appearance at the hearing;

(6)           the specific identification of any

document, recording, or item sought, including a detailed description of where

the item is located;

(7)           the name and address of the individual or

party in possession of any item sought; and

(8)           a statement of why the testimony or

evidence to be subpoenaed is necessary for a proper presentation of the case.

(b)  Legal representatives shall issue subpoenas at their

own expense and discretion.

(c)  Any party or person receiving a subpoena may serve a

written objection to the issuance of the subpoena. 

(1)           The objection shall be directed to the

Board of Review prior to the commencement of the hearing and provide reasons

for the objection and the relief sought by the objecting party.

(2)           The Board of Review shall rule on the

objection and notify the parties before the hearing.  The Board of Review's

reasons for its ruling shall be in writing or stated on the record during the

hearing.

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

04 NCAC 24D .1107          THE TAX OPINION

(a)  Following the conclusion of a tax hearing, the Board of

Review shall issue a tax opinion with respect to the appeal filed.

(b)  The tax opinion shall set forth:

(1)           a statement of the case;

(2)           any findings of fact;

(3)           conclusions of law;

(4)           the final order with regard to the opinion

rendered;

(5)           the date the opinion was mailed;

(6)           instructions for filing an appeal; and

(7)           the time period within which an appeal

shall be filed.

(c)  The Board of Review shall mail a copy of the tax

opinion to each party to the appeal.

 

History Note:        Authority G.S. 96-4;

Eff. July 1, 2015.

 

SECTION .1200 - SEASONAL PURSUITS

 

04 NCAC 24D .1201          REQUEST FOR SEASONAL DETERMINATION 

(a)  Each employer desiring a seasonal determination shall

request assignment of the seasonal period by DES.

(b)  The request shall be made in writing by completing the

Application for Seasonal Determination (Form NCUI 611) that is available on

DES's website at www.ncesc.com and addressed to the Tax Administration Section

by mail, facsimile, or email as provided in 04 NCAC 24A .0104.

(c)  Requests for Seasonal Determination using (Form NCUI

611) shall contain the following:

(1)           the employing unit's name and physical

address;

(2)           years of operation in North Carolina;

(3)           location of  each seasonal pursuit;

(4)           description of seasonal each pursuit; and

(5)           beginning and ending dates of each seasonal

pursuit for the last four years.

(d)   The request shall be filed at least 20 days before the

beginning date of the period of production operations for which the designation

is requested.

(e)  Completion and Submission of Form NCUI 611 shall

satisfy the requirements of this Rule.

 

History Note:        Authority G.S. 96-4; 96-16;

Eff. July 1, 2015.

 

04 NCAC 24D .1202          WRITTEN DETERMINATION 

(a)  DES shall issue a written determination granting or

denying the request upon making its determination pursuant to G.S. 96-16(c). 

The determination shall notify the employer of the following:

(1)           the specific seasonal period assigned by

DES;

(2)           the effective date of the determination;

and

(3)           the specific filing requirements for

seasonal employers.

(b)  Any determination that denies the request for a

seasonal designation shall state the reasons for the denial.

(c)  Each determination shall contain notice of each party's

right to appeal the determination and request a hearing, the date the

determination was mailed, and the time period within which an appeal shall be

filed.

(d)  The employer may file its appeal of a denial of a

request for seasonal pursuit designation with DES's Tax Administration Section

in the same manner as prescribed under Rule .1201 of this Section, by

submitting a Form NCUI 611 by mail to Post Office Box 26504, Raleigh, NC 27611,

facsimile to (919) 733-1255, or email to des.tax.customerservice@nccommerce.com



(e)  Hearings shall be conducted as set forth in Rule .1103

of this Subchapter.

 

History Note:        Authority G.S. 96-4; 96-16;

Eff. July 1, 2015.

 

04 NCAC 24D .1203          DISPLAY REQUIRED 

(a)  Each employer shall display no less than two Notice to

Workers of a Seasonal Determination forms in separate locations (Form NCUI 543)

on its premises.  Form NCUI 543 shall be sent to employers when approved for Seasonal

Pursuit status by mail and shall contain:

(1)           notice that a seasonal determination was

requested by the employer and issued by DES; and

(2)           instructions for workers employed by the

employer to protest the determination within 10 days.

(b)  The Notice to Workers of a Seasonal Determination (Form

NCUI 543) shall be provided by DES and shall be displayed on the employer's

premises in such places as:

(1)           entry ways used by workers to enter and

exit the employer's premises;

(2)           in or near an area where a record of time

worked is required to be used or frequented by workers;

(3)           a bulletin board in places where workers

gather; or

(4)           other locations within the place of employment

visible to employees.

 

History Note:        Authority G.S. 96-4; 96-16;

Eff. July 1, 2015.

 

04 NCAC 24D .1204          WAGE RECORDS AND REPORTS REQUIREMENT 

(a)  Any pursuit that DES determines to be seasonal shall

maintain payroll records such that the seasonal wages paid to workers during

the active periods of the seasonal pursuit may be distinguished from any

non-seasonal wages that are paid to those workers.

(b)  Any employer engaged in a seasonal pursuit shall submit

quarterly wage reports pursuant to Rule .0603 of this Subchapter, showing the

seasonal wages paid to workers during the active periods assigned by DES.

(c)  Within 15 days of the date that DES mails notice of a

seasonal period, the employer shall complete and submit to DES a Breakdown of

Wages Previously Reported for Workers to Show Seasonal and Non-Seasonal Wages

(Form NCUI 542) with seasonal wages in the current base period and in

intervening quarters between the base period and completed calendar quarters

preceding the first day of the active period, which shall include the

following:

(1)           each worker's social security number, and

name; and

(2)           each worker's seasonal wages, non-seasonal

wages and total wages for each calendar quarter.

(d)  Any wages earned by seasonal workers outside the

seasonal period assigned by DES shall be reported as non-seasonal wages, even

though they may have been earned for seasonal work.

 

History Note:        Authority G.S. 96-4; 96-16;

Eff. July 1, 2015.

 

SECTION .01300 – COLLECTION METHODS OF EMPLOYER DEBT

 

04 NCAC 24D .1301          NOTICE

to employer

(a)  DES shall serve notice and execution of levy on

employer to collect past due unemployment insurance taxes, penalties, interest,

and costs.

(b)  Notice shall be written and provided to the employer by

U.S. mail.

(c)  The notice shall state the following:

(1)           that DES is in possession of judgments and

executions that were properly docketed and indexed by the clerks of the

superior court;

(2)           the county of the superior court where the

judgments and executions are docketed;

(3)           that DES mailed previous notice of the debt

and the date DES mailed notice to the employer;

(4)           the amount owed by the employer;

(5)           the name of any other individual or entity

that will receive notice of the debt;

(6)           the statutory authority for service of

execution of levy by DES;

(7)           the relief sought by DES; and

(8)           the name, address and telephone number of

an authorized representative of DES who may be contacted regarding the debt.

 

History Note:        Authority G.S. 1-359; 96-4; 96-10; 96-18;

Eff. July 1, 2015.

 

04 NCAC 24D .1302          NOTICE

to GARNISHEE

(a)  DES shall serve notice and execution of levy on third

parties in order to collect past due unemployment insurance taxes, penalties,

interest, and costs.

(b)  Notice shall be written and provided to the garnishee

by U.S. mail.

(c)  The notice shall state the following:

(1)           the name of the indebted employer;

(2)           that DES is in possession of judgments and

executions that were properly docketed and indexed by the clerks of the

superior court;

(3)           the county of the superior court where the

judgments and executions are docketed;

(4)           that the employer has received previous

notice of the debt;

(5)           the amount owed by the employer;

(6)           statutory authority for service of

execution of levy;

(7)           relief sought and how to remit payment; and

(8)           the name, address and telephone number of

an authorized representative of DES who may be contacted regarding the debt.

 

History Note:        Authority G.S. 1-359; 96-4; 96-10;

Eff. July 1, 2015.

 

SECTION .1400 - RECORDS

 

04 NCAC 24D .1401          OFFICIAL FORMS 

(a)  Unless otherwise provided, all employer forms

referenced under the rules of this Chapter are available by contacting the

Employer Call Center (ECC) as follows:

(1)           mailing address is Post Office Box 26504,

Raleigh, North Carolina 27611;

(2)           phone number is (919) 707-1150;

(3)           facsimile number is (919) 715-0780; or

(4)           email address is des.tax.customerservice@nccomerce.com.

(b)  Unless otherwise provided, all claimant forms

referenced under the rules of this Chapter are available by contacting the

Customer Call Center (CCC) as follows:

(1)           mailing address is P.O. Box 25903, Raleigh,

NC 27611-5903;

(2)           phone number is (888) 737-0259;

(3)           facsimile number is (919) 250-4315; or

(4)           email address is

des.ui.customerservice@nccommerce.com.

 

History Note:        Authority G.S. 96-4; 96-16;

Eff. July 1, 2015.