108.16(9)(a)1.1. Any contributions required and paid under this chapter for any year by any such instrumentality, including any national bank, shall be refunded to that instrumentality in case this chapter is not certified with respect to such year under 26 USC 3304.

108.16(10)(10) All money withdrawn from the fund shall be used solely in the payment of benefits, exclusive of expenses of administration, and for refunds of sums erroneously paid into the fund, for refund of a positive net balance in an employer’s reimbursement account under ss. 108.15 (4), 108.151 (5), and 108.152 (4) on request by the employer, for expenditures made pursuant to s. 108.161 and consistently with the federal limitations applicable to s. 108.161, and for payment of fees and expenses for collection of overpayments resulting from fraud or failure to report earnings that are assessed by the U.S. secretary of the treasury and charged to the department under 26 USC 6402 (f).

108.16(10m)(10m) Except as provided in s. 108.17 (3m), the department shall not pay any interest on any benefit payment or any refund, or collect any interest on any benefit overpayment.

108.16(11)(11) The fund’s treasurer may issue a substitute check to an employee to replace a check that is canceled under sub. (6) (e), if the employee makes application therefor within 6 years after the date of issue of the original check.

108.16(12)(12) The fund’s treasurer shall estimate at the end of each calendar quarter the earnings rate payable on the fund’s bank balances and the earnings rate payable by the federal unemployment account under title XII of the Social Security Act (42 USC 1321 to 1324) for the following quarter. Based on these estimates, the treasurer shall pay for the cost of banking services incurred by the fund in the following quarter either by maintaining compensating bank balances or by payment for the services from the appropriation under s. 20.445 (1) (ne), whichever payment method is estimated to yield the highest net earnings for the fund.

108.16(13)(13) If the secretary determines that employers in this state that are subject to a requirement to pay a federal unemployment tax might experience a lower tax rate if this state were to loan moneys to the fund under s. 20.002 (11) (b) 3m., the secretary shall request the secretary of administration to make one or more transfers to the fund in the amount required to maintain a favorable federal tax experience for employers. The secretary shall not request a transfer under this subsection if the outstanding balance of such transfers at the time of the request would exceed $50,000,000. Whenever the secretary determines that the balance of the fund permits repayment of a transfer, in whole or in part, without jeopardizing the ability of the department to continue to pay other liabilities and costs chargeable to the fund, the secretary shall repay the department of administration for the amount that the secretary determines is available for repayment. The secretary shall ensure that the timing of any repayment accords with federal requirements for ensuring a favorable tax experience for employers in this state.

108.16 AnnotationWhether an employee is potentially eligible for unemployment compensation benefits is immaterial in determining contribution or tax liability based on that employee’s services. Hanmer v. DILHR, 92 Wis. 2d 90, 284 N.W.2d 587 (1979).

108.16 AnnotationIn the case of a merger, the “time of business transfer” under sub. (8) (e) 1. refers to that point in time immediately prior to the effective date of the merger. First Federal Savings Bank v. LIRC, 200 Wis. 2d 786, 547 N.W.2d 796 (Ct. App. 1996), 93-2158.

108.16 AnnotationAssuming, without deciding, that a Chapter 11 bankruptcy reorganization resulted in a “transfer” under sub. (8) (a), the reorganized company in this case was mandatory successor under sub. (8) (e) 1. Sub. (8) (e) 1. broadly refers to whether an employer is “owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests.” Given this broad language and a company’s retention of six of its eight officers, including its chief operating officer and corporate controller, the Labor and Industry Review Commission reasonably determined that the company was “managed ... in substantial part ... directly ... by the same ... interests” as before its reorganization. Neenah Foundry Co. v. LIRC, 2015 WI App 18, 360 Wis. 2d 459, 860 N.W.2d 524, 14-1113.

108.16 AnnotationExcusable neglect is the only justification for accepting a late successorship application under sub. (8) (b) 4. Excusable neglect means an error that a reasonably prudent person would have committed under the same circumstances. The inquiry is context dependent and requires a showing of something more than ordinary neglect or carelessness. A party seeking relief under an excusable-neglect provision must offer a persuasive explanation for its mistake by pointing to specific incidents that occurred at the time of the mistake. When the record is silent, or contains only speculation about the reasons for an applicant’s mistake or its failure to take reasonably prudent precautions, there is no basis on which to excuse the neglect. Friendly Village Nursing & Rehab, LLC v. DWD, 2022 WI 4, 400 Wis. 2d 277, 969 N.W.2d 245, 20-0520.

108.16 AnnotationThere is no statutory requirement for the Department of Workforce Development to contact a business and alert it to a report regarding business transfer. The statutes place compliance with all registration and application requirements squarely on businesses. Friendly Village Nursing & Rehab, LLC v. DWD, 2022 WI 4, 400 Wis. 2d 277, 969 N.W.2d 245, 20-0520.

108.161(1)(1) The fund’s treasurer shall maintain within the fund an employment security “federal administrative financing account”, and shall credit thereto all amounts credited to the fund pursuant to the federal employment security administrative financing act (of 1954) and section 903 of the federal social security act, as amended.

108.161(1m)(1m) The treasurer of the fund shall also credit to said account all federal moneys credited to the fund pursuant to sub. (8).

108.161(2)(2) The requirements of said section 903 shall control any appropriation, withdrawal and use of any moneys in said account.

108.161(3)(3) Consistently with this chapter and said section 903, such moneys shall be used solely for benefits or employment security administration by the department, including unemployment insurance, employment service, apprenticeship programs, and related statistical operations.

108.161(3e)(3e) Notwithstanding sub. (3), any moneys allocated under section 903 of the federal Social Security Act, as amended, for federal fiscal years 2000 and 2001 and the first $2,389,107 of any distribution received by this state under section 903 of that act in federal fiscal year 2002 shall be used solely for unemployment insurance administration.

108.161(3m)(3m) The fund’s treasurer shall request restoration from the U.S. secretary of labor of amounts credited to the account under this section which have been used to pay benefits, unless these amounts do not exceed the balance in the account, and unless the state does not have a balance of advances outstanding from the federal unemployment account under title XII of the social security act.

108.161(4)(4) Such moneys shall be encumbered and spent for employment security administrative purposes only pursuant to, and after the effective date of, a specific legislative appropriation enactment:

108.161(4)(b)(b) Directing the fund’s treasurer to transfer the appropriated amounts to the administrative account only as and to the extent that they are currently needed for such expenditures, and directing that there shall be restored to the account created by sub. (1) any amount thus transferred which has ceased to be needed or available for such expenditures.

108.161(4)(c)(c) Specifying that the appropriated amounts are available for obligation solely within the 2 years beginning on the appropriation law’s date of enactment. This paragraph does not apply to the appropriations under s. 20.445 (1) (nd) and (ne) or to any amounts expended from the appropriation under s. 20.445 (1) (nb) from moneys transferred to this state on March 13, 2002, pursuant to section 903 (d) of the federal Social Security Act.

108.161(4)(d)(d) Limiting the total amount which may be obligated during any fiscal year to the aggregate of all amounts credited under sub. (1), including amounts credited pursuant to sub. (8), reduced at the time of any obligation by the sum of the moneys obligated and charged against any of the amounts credited.

108.161(5)(5) The total of the amounts thus appropriated for use in any fiscal year shall in no event exceed the moneys available for such use hereunder, considering the timing of credits hereunder and the sums already spent or appropriated or transferred or otherwise encumbered hereunder.

108.161(6)(6) The fund’s treasurer shall keep a record of all such times and amounts; shall charge each sum against the earliest credits duly available therefor; shall include any sum thus appropriated but not yet spent hereunder in computing the fund’s net balance as of the close of any month, in line with the federal requirement that any such sum shall, until spent, be considered part of the fund; and shall certify the relevant facts whenever necessary hereunder.

108.161(7)(7) If any moneys appropriated hereunder are used to buy and hold suitable land, with a view to the future construction of an employment security building thereon, and if such land is later sold or transferred to other use, the proceeds of such sale (or the value of such land when transferred) shall be credited to the account created by sub. (1) except as otherwise provided in ss. 13.48 (14) and 16.848.