DWD 113.03 Compromise of employer liability.
DWD 113.04 Compromise of personal liability.
DWD 113.05 General procedural provisions.
DWD 113.06 Disposition of warrants.
DWD 113.07 Reopening compromised liability.
Ch. DWD 113 Note
Note: Chapter ILHR 113 was effective on March 1, 1994, except that ss. ILHR 113.03 and 113.04 are also applicable to installment payment agreements entered on or after January 7, 1990. Chapter ILHR 113 was renumbered Chapter DWD 113 under s. 13.93 (2m) (b) 1., Stats. and corrections made under s. 13.93 (2m) (b) 6. and 7. Stats.,
Register, June, 1997, No. 498.
DWD 113.001(1)(1)
In general. Except as provided in
sub. (2), unless the context clearly indicates a different meaning, the definitions in
ch. DWD 100 apply to this chapter.
DWD 113.001(2)
(2) In this chapter. Notwithstanding
ch. DWD 100, the following words and phrases have the designated meanings unless the context clearly indicates a different meaning:
DWD 113.001(2)(a)
(a) "Action" means a circuit court proceeding for judicial review of a commission decision or an appeal to either the court of appeals or the supreme court.
DWD 113.001(2)(b)
(b) "Decision" means a written resolution by an administrative law judge of an appeal from a determination or a written resolution of a petition for review by the commission or a written resolution of an action for judicial review by a court of competent jurisdiction.
DWD 113.001 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94, r. (intro.), (5), renum. (1), (4), (6) and (7) to be (2) (a), (b), (c) and (d), renum. (2), (3), (8), (9) and (10) to be 110.02 (9), (10), (44), (51) and (52), cr. (1), (2),
Register, September, 1995, No. 477, eff. 10-1-95.
DWD 113.01(1)(a)
(a) The settlement of disputes between the department and parties to determinations, decisions or actions.
DWD 113.01(1)(b)
(b) The compromise of liabilities for contributions, reimbursements in lieu of contributions, interest, penalties and costs assessed under
ch. 108, Stats.
DWD 113.01 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
DWD 113.02(1)(a)
(a) Any determination which has been appealed, which has not become final and which has been referred from the bureau of tax and accounting to the bureau of legal affairs; and
DWD 113.02(2)
(2) Settlement shall be based upon advice of counsel for the unemployment compensation division, who shall certify that, after having fully investigated the matter, it is his or her opinion that one or more of the following conditions exists:
DWD 113.02(2)(a)
(a) The department has made an error of law or fact which, if corrected, would negate or change the initial determination issued in the case.
DWD 113.02(2)(b)
(b) Given the available evidence, there is significant doubt as to the ability of the department to prevail in the dispute with respect to one or more specific issues and there is little or no likelihood of producing sufficient additional evidence in favor of the department regarding the issues prior to or at a hearing under s.
108.10 (2), Stats.
DWD 113.02(2)(c)
(c) Prior to a hearing under s.
108.10 (2), Stats., the department has discovered additional relevant and material evidence which would negate or change the initial determination in the case.
DWD 113.02(2)(d)
(d) Given the evidence in the record or the nature of a decision at a lower level, or both, there is significant doubt as to the ability of the department to prevail on appeal with respect to one or more specific issues.
DWD 113.02(2)(e)
(e) All or part of any interest liability was incurred as a result of undue delay on the part of the department such that there is valid reason to cancel that liability.
DWD 113.02(2)(f)
(f) There are valid legal defenses of estoppel or laches against the department as to all or part of the initial determination(s).
DWD 113.02(3)
(3) A settlement may be implemented by any one or more of the following methods:
DWD 113.02(3)(a)
(a) Under s.
108.10 (1), Stats., the department may amend any initial determination affected by the settlement prior to a hearing on the determination(s).
DWD 113.02(3)(b)
(b) Under s.
108.10 (1), Stats., the department may set aside the applicable initial determination(s) prior to a hearing on the determination(s) and issue whatever new initial determination(s) are necessary to reflect the terms of the settlement.
DWD 113.02(3)(c)
(c) The department and the opposing party may enter into a written stipulation which sets forth the terms of the settlement. The stipulation is subject to the approval of the administrative law judge assigned to the case.
DWD 113.02(3)(d)
(d) The opposing party may withdraw all or part of the appeal of the department's initial determination(s).
DWD 113.02 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
DWD 113.03
DWD 113.03
Compromise of employer liability. DWD 113.03(1)(1) Under s.
108.10 (8), Stats., the department may compromise the liability of any employer as established in any final determination, decision or action, together with any subsequent collection costs, if:
DWD 113.03(1)(a)
(a) The employer makes a sworn application for the compromise of the employer's liability to the department, including a financial statement if requested, in such form as the department prescribes;
DWD 113.03(1)(c)
(c) The employer is not the debtor in a case under the United States bankruptcy code with respect to any liability under
ch. 108, Stats., which is not dischargeable in bankruptcy unless:
DWD 113.03(1)(c)1.
1. In a case under chapter 7 of the bankruptcy code, there are insufficient assets to pay the liability in full under with the statutory order of distribution; or
DWD 113.03(1)(c)2.
2. In a case under chapter 11 or 12 of the bankruptcy code, the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the employer and there are insufficient assets to pay the liability.
DWD 113.03(1)(d)
(d) With respect to an employer that is a nonprofit organization and whose liability or any part of whose liability was incurred while subject to reimbursement financing status under s.
108.151 (2), Stats., the employer's assurance of reimbursement has either been applied to the liability or the application for compromise provides for such assurance; and
DWD 113.03(1)(e)
(e) The department finds that the employer is unable to pay the full amount of the contributions or payments in lieu of contributions, interest, penalties and costs, except, with respect to an employer still in the same business or operation as when the liability sought to be compromised was incurred:
DWD 113.03(1)(e)1.
1. The employer's application for compromise must offer payment in an amount not less than the unpaid contributions or unpaid payments in lieu of contributions, including any contributions owed as a successor under s.
108.16 (8) (f), Stats.;
DWD 113.03(1)(e)2.
2. The required payment of all interest, penalties or costs would pose an immediate threat to the financial viability of the employer; and
DWD 113.03(1)(e)3.
3. Current contributions or payments in lieu of contributions are being paid.
DWD 113.03(2)
(2) If the conditions of
sub. (1) are satisfied, the department shall determine the amount that the employer is able to pay and may issue an acceptance of the application for compromise in the determined amount.
DWD 113.03(3)
(3) Notwithstanding the exception in
sub. (1) (e), the department may compromise unpaid contributions on wages for domestic service arising under s.
108.02 (13) (d), Stats., for any time period prior to the effective date of the existence of a fiscal agent or fiscal intermediary under s.
46.27 (5) (i), Stats.
DWD 113.03(4)
(4) Notwithstanding
sub. (1) (e), in determining the amount of the accepted compromise, the department may consider whether:
DWD 113.03(4)(a)
(a) Any part of any interest liability was incurred as a result of undue delay on the part of the department such that there is valid reason to compromise the interest liability.
DWD 113.03(4)(b)
(b) In the opinion of counsel for the unemployment compensation division, the employer could have raised valid legal defenses of estoppel or laches against the initial determination(s).
DWD 113.03 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
DWD 113.04
DWD 113.04
Compromise of personal liability. DWD 113.04(1)(1) The department may compromise the liability of any individual whose liability for the unpaid contributions, interest, penalties and costs of a corporation has been finally established under s.
108.22 (9), Stats., if:
DWD 113.04(1)(a)
(a) The individual makes a sworn application to the department for the compromise of the individual's liability, including a financial statement if requested, in such form as the department prescribes;
DWD 113.04(1)(b)
(b) The individual is not the debtor in a case under the United States bankruptcy code with respect to any liability under
ch. 108, Stats., which is not dischargeable in bankruptcy unless:
DWD 113.04(1)(b)1.
1. In a case under chapter 7 of the bankruptcy code, there are insufficient assets to pay the liability in full under the statutory order of distribution; or
DWD 113.04(1)(b)2.
2. In a case under chapter 11 or 12 of the bankruptcy code the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the individual and there are insufficient assets to pay the liability; and
DWD 113.04(1)(c)
(c) The department finds that the individual is unable to pay the full amount of the liability.
DWD 113.04(2)
(2) If the conditions of
sub. (1) are satisfied, the department shall determine the amount that the individual is able to pay and may issue an acceptance of the application for compromise in the determined amount.
DWD 113.04(3)
(3) In making its finding that the individual is unable to pay the full amount of the liability under
sub. (1) (c) and its determination of the amount that the individual is able to pay, the department shall consider the individual's present and prospective income.
DWD 113.04(4)
(4) The department's acceptance of a compromise under this section shall not affect the liability of any other entity against which the department may issue or has issued a determination of liability for the unpaid contributions of the same corporation.
DWD 113.04(5)
(5) In an application for compromise under this section, an individual liable or potentially liable at the time of application for the liabilities of more than one corporation under s.
108.22 (9), Stats., shall disclose all such liabilities, including any liabilities which are not final. Failure to make such disclosure shall make the individual ineligible for compromise of the undisclosed liability in any later application for compromise under this section.
DWD 113.04(6)
(6) An individual granted a compromise under this section shall not be eligible for a compromise of any liabilities, of whatever nature, incurred for tax periods subsequent to the acceptance of the compromise.
DWD 113.04 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
DWD 113.05
DWD 113.05
General procedural provisions. DWD 113.05(1)(1) The department may request additional information and may also examine the employer and such other persons as it deems necessary, under oath, regarding the employer's application.
DWD 113.05(2)
(2) The department shall acknowledge in writing the receipt of an application for compromise within 30 days of such receipt. The department's acceptance of the application for compromise shall be in writing and be issued with the concurrence of the treasurer of the unemployment compensation fund or his or her designee. The acceptance shall be effective only if the amount determined in the acceptance is paid to the department within 30 days from the date of the acceptance, except as otherwise provided under an installment arrangement under
sub. (3). Payment must be in cash or by guaranteed instrument payable only to the department.
DWD 113.05(3)
(3) The department may allow payment of the determined amount by installment payments upon such conditions as the department shall prescribe. In the event of failure to make any installment payment when due, which failure is not excused in writing by the department, the department may declare its acceptance of the application for compromise to be null and void and may proceed to collect the balance of the original liability using whatever remedies are available to it by law.
DWD 113.05(4)
(4) The submission of an application for compromise shall not operate to stay collection proceedings. However, the department may defer collection during the pendency of an application if it is satisfied that the interests of the state will not be jeopardized.
DWD 113.05(5)
(5) Frivolous or incomplete applications and applications submitted for the purpose of delaying collection of the liability shall be immediately rejected.
DWD 113.05 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
DWD 113.06
DWD 113.06
Disposition of warrants. Upon timely payment of the amount set forth in the department's acceptance of compromise, the department shall issue a release of any outstanding warrant against the employer or individual.
DWD 113.06 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
DWD 113.07
DWD 113.07
Reopening compromised liability. The department may declare a compromise void at any time if it ascertains that:
DWD 113.07(1)
(1) The employer or individual submitted a materially false application for compromise; or
DWD 113.07(2)
(2) Prior to its acceptance of the application for compromise the employer or individual concealed or disposed of income or property which could have been used to pay any part of the original liability.
DWD 113.07 History
History: Cr.
Register, February, 1994, No. 458, eff. 3-1-94.
