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.