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Oregon Bulletin

January 1, 2011

 

Employment Department
Chapter 471

Rule Caption: Adds employer tax information to department confidentiality rules.

Adm. Order No.: ED 5-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Adopted: 471-010-0111

Subject: Adds a section to the department’s confidentiality rules to cover disclosure f employer tax information.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-010-0111

Unemployment Insurance Tax Disclosure

The department may disclose confidential Tax information pertaining to an employing unit to employees of the employing unit or agents thereof if both of the following conditions are met:

(1) The employing unit provides informed consent authorizing the disclosure, or the employee or agent provides the department with reasonable assurance that they are acting with the informed consent of the employing unit, and.

(2) The identity of the person receiving the information has been established with reasonable assurance.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.665

Hist.: ED 5-2010, f. & cert. ef. 12-13-10

 

Rule Caption: Notification date requirement for employer tax rate calculation – successor companies.

Adm. Order No.: ED 6-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Amended: 471-031-0140

Subject: Streamlines tax rate calculation to use a single tax year for 100% successor companies. This replaces the rule requiring successor firms to split their calculation across two tax years, which created additional administrative burden.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-031-0140

Transfer of Experience Determination, Tax Rate, Consolidation

(1) For purposes of ORS 657.480, an employing unit is a total successor to the experience of an employing enterprise when all or substantially all of the components parts of the employing enterprise are transferred to or otherwise acquired by the employing unit, including the employees necessary to carry on day-to-day operations and essential business functions in the same manner and for the same purposes as carried on prior to the acquisition or transfer. If at the time of the purchase or transfer the acquired employing entity is inactive, no transfer of experience shall be allowed.

(2) An employer whose tax rate for a calendar year is determined in accordance with either ORS 657.462 or 657.435 and which has become final in accordance with ORS 657.485 shall pay taxes at the determined rate on all wages paid by all employing units of the employer during the calendar year for employment as defined in ORS chapter 657.

(3) In consolidation of existing employing units, the tax rate experience will be consolidated for the next year’s rate determination only if:

(a) The effective date of the consolidation is on or before August 31 of the current year; and

(b) The Department is notified of the consolidation in writing prior to November 15 of the same year.

(4) When an employing unit acquires the trade or business of an employer that has received the penalty tax rate under ORS 657.480(3), the penalty tax rate will transfer.

(5) Any transfer or acquisition described in section (1) must be reported to the Employment Department Tax Section within 60 days of the date the transfer or acquisition becomes final.

Stat. Auth.: ORS 657

Stats. Implemented: ORS 657.435, 657.462, 657.480 & 657.485

Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; ED 2-1989, f. & cert. ef. 10-30-89; ED 15-2003, f. 12-12-03 cert. ef. 12-14-03; ED 3-2006, f. 2-3-06, cert. ef. 2-5-06; ED 6-2010, f. & cert. ef. 12-13-10

 

Rule Caption: Notification date requirement for employer tax rate calculation – partial successor companies.

Adm. Order No.: ED 7-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Amended: 471-031-0141

Subject: Streamlines tax rate calculation to use a single tax year for partial successor companies. This replaces the rule requiring successor firms to split their calculation across two tax years, which created additional administrative burden.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-031-0141

Partial Transfer of Experience

(1) Under ORS 657.480(1) A new or existing employing unit is a partial successor to the experience of an employing enterprise when an identifiable and segregable portion of the employing enterprise is transferred to or otherwise acquired by the employing unit, including the employees of that portion of the employing enterprise necessary to carry on day-to-day operations and essential business functions in the same manner and for the same purposes as carried on prior to the acquisition or transfer.

(2) For the period beginning with the date of the transfer of the employment experience record through the end of the calendar year in which the transfer occurs, the contribution rate of the predecessor shall be the same as if there had been no transfer. Upon determination for partial transfer the Director shall:

(a) Assign a contribution rate for a successor that is a new employing unit, to be effective from the date of the transfer through the end of the calendar year in which the transfer occurs; and

(b) Notify the successor in writing of the tax rate assigned in subsection (2)(a) of this rule.

(3) In a partial consolidation, when both employing units are existing employers, the tax rate experience shall be consolidated for the next year’s rate determination only if the date of the transfer is on or before August 31 of the current year.

(4) The percentage of employment experience attributable to the transfer shall be calculated by dividing the number of employees hired by the successor that are attributable to the transfer by the total number of employees of the predecessor prior to the transfer. This percentage, rounded to the nearest percentage number, shall then be applied to the benefit charges and taxable payroll of the predecessor and the resulting amounts shall comprise the employment experience to be transferred to the successor’s account. The experience shall be added to the successor’s account in the same quarter it is removed from the predecessor’s account. The percent transferred plus the percent not transferred shall equal one hundred percent.

(5) The Director may use other reasonable means of determining the percentage in section (4) that is attributable to the transfer.

(6) Benefits charged to the predecessor in the quarter in which the transfer occurs and the next three quarters shall be split between the predecessor and successor in accordance with the percentage established in section (4) of this rule. For each quarter thereafter, none of the benefits charged to the predecessor shall be transferred to the successor.

(7) For the limited purpose of calculating experience rates under this rule, if the transfer occurs after the fifteenth day of the middle month of a calendar quarter, wages paid by the predecessor during such quarter shall be split between the predecessor and successor in accordance with the percentage calculated in section (4) of this rule. If the transfer occurs on or before the fifteenth day of the middle month of a calendar quarter, none of the wages paid by the predecessor during such quarter shall be split.

(8) For each calendar year commencing on or after the date of the transfer, the successor’s contribution rate shall be based on its experience with taxable payroll and benefit charges, including the experience of the acquired portion of business as determined in sections (2), (3), (4), (5), (6) and (7).

(9) The successor, if not an employer at the time of the transfer, shall become an employer as of the date of the transfer.

(10) In determining excess wages over the taxable wage amount, a successor may use the wages paid by the predecessor prior to the transfer.

(11) When the Employment Department determines that a partial transfer has occurred, the Employment Department shall give the successor notice of the determination and its effects to the partial successor. The partial successor may request a hearing in accordance with the provisions of ORS 657.683.

(12) Notwithstanding sections (2), (3), (4), (5), (6) and (7), when an employing unit acquires a portion of the trade or business of an employer that has received the penalty tax rate under ORS 657.480(3), a proportionate share of the penalty tax rate will transfer and be added to its calculated rate.

(13) Any transfer or acquisition described in section (1) must be reported to the Employment Department Tax Section within 60 days of the date the transfer or acquisition becomes final.

Stat. Auth.: ORS 657.610

Stats. Implemented: ORS 657.480

Hist.: ED 1-2000, f. 3-31-00, cert. ef. 4-2-00; ED 15-2003, f. 12-12-03 cert. ef. 12-14-03; ED 3-2006, f. 2-3-06, cert. ef. 2-5-06; ED 7-2010, f. & cert. ef. 12-13-10

 

Rule Caption: Clarifies requirements regarding ownership of equipment.

Adm. Order No.: ED 8-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Amended: 471-031-0200

Subject: Clarifies the phrase used in ORS 657.047(1)(b), “their equipment”. This rule will clarify the distinction between bona fide lease operators who own their own trucks, from those who have no ownership or right to possession of the equipment that extends beyond the business relationship.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-031-0200

Ownership of Equipment

For purposes of ORS 657.047(1)(b), “their equipment” consists of vehicles or equipment that meet all the following criteria:

(1) The vehicle or equipment is independently furnished by the service-provider, neither leased nor purchased from the for-hire carrier or from any entity affiliated with the for-hire carrier;

(2) Any lease of vehicle or equipment by service-provider as lessee, or title in the vehicle or equipment held by the service-provider is not conditioned upon any other agreement or contract, including, but not limited to, the following examples:

(a) an operator agreement between the service-provider and the for-hire carrier;

(b) a lease of the vehicle from the service-provider to the for-hire carrier;

(c) any contract obligating the service-provider to use the vehicle to provide services to the for-hire carrier.

Stat. Auth. ORS 657.610

Stas. Implemented: ORS 657.610

Hist.: ED 18-2008, f. 11-24-08, cert. ef. 12-1-08; ED 8-2010, f. & cert. ef. 12-13-10

 

Rule Caption: Repeal subjectivity provision for Limited Liability Companies and Partnerships.

Adm. Order No.: ED 9-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Repealed: 471-031-0225

Subject: Repeals subjectivity provisions for Limited Liability Company members and Limited Liability Partnership partners.

Rules Coordinator: Courtney Brooks—(503) 947-1724

 

Rule Caption: Repeals provisions of musicians’ exclusion.

Adm. Order No.: ED 10-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Repealed: 471-031-0230

Subject: The statute granting an exclusion of musicians operating under a contract was repealed in the 2009 Legislative Session. To be consistent, we are repealing the accompanying rule.

Rules Coordinator: Courtney Brooks—(503) 947-1724

 

Rule Caption: Defines “adequate consideration” for volunteers.

Adm. Order No.: ED 11-2010

Filed with Sec. of State: 12-13-2010

Certified to be Effective: 12-13-10

Notice Publication Date: 11-1-2010

Rules Adopted: 471-031-0235

Subject: For the purposes of ORS 657.010, following discussion in the 2009 Legislative Session, defines what constitutes adequate consideration for volunteers.

Rules Coordinator: Courtney Brooks—(503) 947-1724

471-031-0235

Volunteer Consideration

For purposes of ORS 657.015:

(1) “Adequate consideration for the services performed” with respect to volunteers is as defined in the Internal Revenue Code Title 26, Subtitle C, Section 3306(c)(10)(A).

(2) Payments to volunteers that are reimbursements for reasonable expenses incurred while volunteering, such as mileage or travel costs, are not remuneration for service if they are paid under an accountable plan. Payments under an accountable plan must meet all three of the following:

(a)The deductible expense was incurred while performing services as a volunteer for a religious, charitable institution or governmental entity. A reimbursement or advance must be for an income tax deductible expense and must not be an amount that would have otherwise been paid to the volunteer.

(b) The payment must be substantiated within a reasonable period of time.

(c) The volunteer must return any amounts in excess of substantiated expenses within a reasonable period of time.

Stat. Auth. ORS 657.610

Stats. Implemented: ORS 657.610

Hist.: ED 11-2010, f. & cert. ef. 12-13-10

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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