2005 Legislation
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HOUSE BILL NO. 2 – Emplymnt security, rates/experience

HOUSE BILL NO. 2

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Bill Status



H0002.......................................by COMMERCE AND HUMAN RESOURCES
EMPLOYMENT SECURITY LAW - Adds to existing law relating to employment
security law to provide for assignment of rates and transfers of
experience; to provide civil penalties for specified violations; to provide
a felony penalty for specified violations; to provide definitions; to
provide that the director shall establish procedures to identify the
transfer or acquisition of a business; and to provide for interpretation
and application of the law in accordance with federal guidelines.
                                                                        
01/14    House intro - 1st rdg - to printing
01/17    Rpt prt - to Com/HuRes
01/18    Rpt out - rec d/p - to 2nd rdg
01/19    2nd rdg - to 3rd rdg
01/20    3rd rdg - PASSED - 62-6-2
      AYES -- Anderson, Barraclough, Barrett, Bastian, Bedke, Bell, Bilbao,
      Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Collins, Crow,
      Deal, Denney, Edmunson, Ellsworth, Eskridge, Field(18), Field(23),
      Garrett, Harwood, Henderson, Jaquet, Jones, Kemp, Lake, LeFavour,
      Loertscher, Martinez, Mathews, McGeachin, McKague, Miller, Mitchell,
      Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo,
      Roberts, Rusche, Rydalch, Sayler, Schaefer, Shepherd(2), Shirley,
      Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail,
      Wills, Wood
      NAYS -- Andrus, Clark, Hart, Henbest, Sali, Shepherd(8)
      Absent and excused -- Bayer, Mr. Speaker
    Floor Sponsor - Kemp
    Title apvd - to Senate
01/21    Senate intro - 1st rdg - to Com/HuRes
02/04    Rpt out - rec d/p - to 2nd rdg
02/07    2nd rdg - to 3rd rdg
02/09    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
      Burtenshaw, Coiner, Compton, Corder, Darrington, Davis, Gannon,
      Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
      Lodge, Marley, McGee, McKenzie, Noble, Pearce, Richardson, Schroeder,
      Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Cameron, Malepeai
    Floor Sponsor - Coiner
    Title apvd - to House
02/10    To enrol
02/11    Rpt enrol - Sp signed
02/14    Pres signed
02/15    To Governor
02/18    Governor signed
         Session Law Chapter 12
         Effective: 07/01/05

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                      HOUSE BILL NO. 2
                                                                        
                         BY COMMERCE AND HUMAN RESOURCES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE EMPLOYMENT SECURITY LAW; AMENDING CHAPTER 13, TITLE 72,  IDAHO
  3        CODE,  BY  THE  ADDITION OF A NEW SECTION 72-1351A, IDAHO CODE, TO PROVIDE
  4        FOR CONFORMITY TO FEDERAL REQUIREMENTS GOVERNING TRANSFERS  OF  EXPERIENCE
  5        AND  ASSIGNMENT  OF RATES, TO PROVIDE CIVIL PENALTIES FOR SPECIFIED VIOLA-
  6        TIONS, TO PROVIDE A FELONY PENALTY FOR SPECIFIED  VIOLATIONS,  TO  PROVIDE
  7        DEFINITIONS,  TO  PROVIDE  THAT THE DIRECTOR SHALL ESTABLISH PROCEDURES TO
  8        IDENTIFY THE TRANSFER OR ACQUISITION OF A  BUSINESS  AND  TO  PROVIDE  FOR
  9        INTERPRETATION  AND  APPLICATION  OF  THE  LAW  IN ACCORDANCE WITH FEDERAL
 10        GUIDELINES AND REGULATIONS.
                                                                        
 11    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 12        SECTION 1.  That Chapter 13, Title 72, Idaho Code, be,  and  the  same  is
 13    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 14    ignated as Section 72-1351A, Idaho Code, and to read as follows:
                                                                        
 15        72-1351A.  FEDERAL CONFORMITY PROVISIONS REGARDING TRANSFERS OF EXPERIENCE
 16    AND ASSIGNMENT OF RATES. Notwithstanding any other provision of this  chapter,
 17    the  following shall apply regarding transfers of experience and assignment of
 18    rates:
 19        (1)  (a) If a covered employer transfers its trade or business, or a  por-
 20        tion  thereof,  to another covered employer and, at the time of the trans-
 21        fer, there is substantially common ownership, management or control of the
 22        two (2) employers, then the experience rating account attributable to  the
 23        transferred trade or business shall be transferred to the employer to whom
 24        such  business  is  so  transferred.  The rates of both employers shall be
 25        recalculated using the  methods  provided  in  section  72-1351(5)(b)  and
 26        (c)(i), Idaho Code.
 27        (b)  If,  following  a  transfer of experience under paragraph (a) of this
 28        subsection (1), the director determines that a substantial purpose of  the
 29        transfer  of  the  trade or business was to obtain a reduced liability for
 30        contributions, then  the  experience  rating  accounts  of  the  employers
 31        involved  shall  be combined into a single account and a single rate shall
 32        be assigned to such account.
 33        (2)  Whenever a person who is not a covered employer under this chapter at
 34    the time such person acquires the trade or business of a covered employer, the
 35    experience rating account of the acquired business shall not be transferred to
 36    such person if the director finds that such person acquired the business  pri-
 37    marily  for  the  purpose of obtaining a lower rate of contributions. Instead,
 38    such person shall be assigned the standard rate for new employers  under  sec-
 39    tion  72-1350,  Idaho  Code.  In determining whether the trade or business was
 40    acquired primarily for the purpose of obtaining a lower rate of contributions,
 41    the director shall use objective factors which may include, but are  not  lim-
 42    ited  to, the cost of acquiring the business, whether the person continued the
 43    business enterprise of the acquired business, how long  such  business  enter-
                                                                        
                                           2
                                                                        
  1    prise  was  continued,  or  whether a substantial number of new employees were
  2    hired for performance of duties unrelated to the business  activity  conducted
  3    prior to acquisition.
  4        (3)  (a) It shall be a violation of this section if a person:
  5             (i)   Makes  any  false  statement  to  the department when the maker
  6             knows the statement to be false or acts with deliberate ignorance  of
  7             or  reckless disregard for the truth of the matter or willfully fails
  8             to disclose a material fact to the department in connection with  the
  9             transfer of a trade or business;
 10             (ii)  Prepares  any  false  or  antedated  report, form, book, paper,
 11             record, written instrument, or other matter or  thing  in  connection
 12             with the transfer of a trade or business with the intent to submit it
 13             or allow it to be submitted to the department as genuine or true;
 14             (iii) Knowingly violates or attempts to violate subsection (1) or (2)
 15             of  this  section  or  any other provision of this chapter related to
 16             determining the assignment of a contribution rate  or  an  experience
 17             rate; or
 18             (iv)  Knowingly  advises  another  person  in a way that results in a
 19             violation or an attempted violation of subsection (1) or (2) of  this
 20             section or any other provision of this chapter related to determining
 21             the assignment of a contribution rate or an experience rate.
 22        (b)  If  a  person  commits  any of the acts described in paragraph (a) of
 23        this subsection (3), the person shall be subject to the  following  penal-
 24        ties:
 25             (i)   If  the  person is a covered employer, a civil money penalty of
 26             ten percent (10%) of such person's taxable wages  for  the  four  (4)
 27             completed  consecutive  quarters  preceding  the  violation  shall be
 28             imposed for such year and said penalty  shall  be  deposited  in  the
 29             state  employment  security  administrative and reimbursement fund as
 30             established by section 72-1348, Idaho Code.
 31             (ii)  If the person is not a covered employer, such person  shall  be
 32             subject  to a civil money penalty of not more than five thousand dol-
 33             lars ($5,000) for each violation. Any such penalty shall be deposited
 34             in the state employment  security  administrative  and  reimbursement
 35             fund as established by section 72-1348, Idaho Code.
 36        (4)  Every  person  who knowingly makes any false statement to the depart-
 37    ment or knowingly fails to disclose a material fact to the department in  con-
 38    nection  with  the  transfer of a trade or business, or knowingly prepares any
 39    false or antedated report, form, book, paper, record, written  instrument,  or
 40    other  matter  or thing in connection with the transfer of a trade or business
 41    with the intent to submit it or allow it to be submitted to the department  as
 42    genuine  or  true, or knowingly violates or attempts to violate subsection (1)
 43    or (2) of this section or any other  provision  of  this  chapter  related  to
 44    determining  the  assignment  of a contribution rate or an experience rate, or
 45    knowingly advises another person to act in a way that results in  a  violation
 46    or  an  attempted  violation  of  subsection (1) or (2) of this section or any
 47    other provision of this chapter related to determining  the  assignment  of  a
 48    contribution  rate  or an experience rate, shall be guilty of a felony punish-
 49    able as provided in section 18-112, Idaho Code.
 50        (5)  For purposes of this section:
 51        (a)  An employer's experience rating account shall consist of  the  actual
 52        contribution,  benefit  and taxable payroll experience of the employer and
 53        any amounts due from the employer under this chapter. When  a  transferred
 54        experience  rating  account  includes  amounts due from the employer under
 55        this chapter, both the predecessor employer  and  the  successor  employer
                                                                        
                                           3
                                                                        
  1        shall be jointly and severally liable for those amounts.
  2        (b)  "Knowingly"  means having actual knowledge of or acting with deliber-
  3        ate ignorance of or reckless disregard for the prohibition involved.
  4        (c)  "Person" has the meaning given such term by section 7701(a)(1) of the
  5        Internal Revenue Code of 1986 (26 U.S.C. 7701(a)(1)).
  6        (d)  A "transfer of a trade or business" occurs whenever a person  in  any
  7        manner succeeds to all or a portion of a trade or business.
  8        (e)  "Trade  or  business" includes, but is not limited to, the employer's
  9        workforce. The transfer of some or  all  of  an  employer's  workforce  to
 10        another  employer  shall  be  considered a transfer of a trade or business
 11        when, as the result of such transfer, the transferring employer no  longer
 12        performs  trade or business with respect to the transferred workforce, and
 13        such trade or business is performed by the employer to whom the  workforce
 14        is transferred.
 15        (f)  "Violates  or  attempts  to violate" includes, but is not limited to,
 16        intent to evade, misrepresentation or willful nondisclosure.
 17        (6)  The director shall establish procedures to identify the  transfer  or
 18    acquisition of a business for purposes of this section.
 19        (7)  This  section shall be interpreted and applied in such a manner as to
 20    meet the minimum requirements contained in any guidance or regulations  issued
 21    by the United States department of labor.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE
                           RS 14504c1

The federal SUTA Dumping Prevention Act of 2004 establishes
minimum standards that each state must enact to limit a tax
evasion scheme used by a growing number of employers to lower
their unemployment insurance (U.I.) tax rates.  All states use
experience rating systems to determine an employer's U.I. tax
rate.  Under experience rating, an employer's U.I. tax rate is
based on the accumulated total amount of U.I. contributions paid
by an employer and the accumulated amount of U.I. benefits
charged to the employer's account.  If the total U.I.
contributions paid by an employer exceed the benefits charged to
the employer's account, the employer is "positive rated" and will
have a relatively low U.I. tax rate.  If the total benefits
charged to an employer's account exceed the total U.I.
contributions paid by the employer, the employer is "deficit
rated" and will have a relatively high tax rate.  Experience
rating helps ensure an equitable distribution of the costs of the
U.I. program among employers.

Some employers have found ways to manipulate experience rating so
that those employers receive a lower U.I. tax rate than their
U.I. experience would otherwise allow.  Nationally, these tax
evasion schemes are called "SUTA dumping" ("SUTA" refers to state
unemployment tax acts.)  The federal SUTA Dumping Prevention Act
of 2004 requires each state's law to prohibit the following two
methods of SUTA dumping as a condition of the state receiving
federal administrative grants to administer its U.I. program:  

1.  To escape a poor experience rating, an employer will set up a
shell company and transfer payroll from the business with the
poor rating to the shell.  If it is a new shell, it will be taxed
at the "standard rate" established for new employers (currently
1.5 percent, substantially below the current maximum rate of 5.4
percent.)  A more sophisticated approach to SUTA dumping reduces
the tax burden even further.  This involves transferring a few
low turnover positions to the shell, earning a positive rate (as
low as 0.2 percent) over a few years and then transferring
payroll from the company with the poor experience rating to the
shell company.

2.   An entity starting a new business purchases an existing
small business with a low U.I. tax rate.  Instead of being
assigned the higher new employer rate, the entity receives the
small business's lower rate.  Typically, the new business ceases
the business activity of the purchased business and commences a
different type of business activity.

In addition, each state's law must impose meaningful civil and
criminal penalties for knowingly violating or attempting to
violate provisions of state law governing experience rate
transfers.  This bill, which is based on legislative language
provided to the states by the U.S. Department of Labor, satisfies
these federal requirements and ensures that Idaho will continue
to receive federal grants to administer its U.I. program.

SUTA dumping is something the Idaho Department of Commerce and
Labor considers to be a serious problem.  The Department has
discovered cases of SUTA dumping in Idaho.  The cost to the Trust
Fund for this activity is now over $500,000.  As the Department
continues to investigate suspected SUTA dumping in Idaho, we
certainly expect this number to grow.  The U.S. Department of
Labor estimates that SUTA dumping is a growing problem that is
costing the U.I. system billions of dollars nationally.


                         FISCAL IMPACT

There is no impact on the State General Fund. If this bill is not
enacted, Idaho's Employment Security Law will not conform to
federal law and, after conformity proceedings, Idaho will lose
approximately $17 million a year in federal grants that it
receives to administer the U.I. program.  In addition, Idaho's
U.I. Trust Fund could suffer a substantial loss of U.I. tax
revenue if SUTA dumping isn't stopped.

                         

CONTACT

Name:     Dwight Johnson
Agency:   Commerce and Labor, Dept. Of
Phone:    841 8833


STATEMENT OF PURPOSE/FISCAL NOTE                     H 2