The proposed amendments to Chapter 60BB-2, Florida Administrative Code implement the provisions of Chapter 443, Florida Statutes that relate to Unemployment Compensation tax.

DEPARTMENT OF MANAGEMENT SERVICES
Agency for Workforce Innovation

RULE NO: RULE TITLE
60BB-2: FLORIDA UNEMPLOYMENT COMPENSATION TAX
60BB-2.022: Definitions
60BB-2.023: General Information
60BB-2.024: Initial Reports and Notification of Liability
60BB-2.025: Reports Required of Liable Employers; Filing of Reports by Electronic Means
60BB-2.026: Determinations to Liable Employers
60BB-2.027: Payment of Contributions
60BB-2.028: Delinquent Accounts
60BB-2.029: Changing Methods of Reporting - Nonprofit and Governmental Employers
60BB-2.032: Employing Unit Records
60BB-2.035: Protests of Liability, Assessment, Reimbursements, and Tax Rate - Special Deputy Hearings
60BB-2.036: Unemployment Compensation Tax - Indian Tribe
60BB-2.037: Public Use Forms
60BB-2.0255: Annual Reporting
PURPOSE AND EFFECT: The proposed amendments to Chapter 60BB-2, Florida Administrative Code implement the provisions of Chapter 443, Florida Statutes that relate to Unemployment Compensation tax.
SUMMARY: The proposed amendments to Chapter 60BB-2, Florida Administrative Code implement the provisions of Chapter 443, Florida Statutes that relate to Unemployment Compensation tax. In particular, the substantial rewording set forth in these proposed amendments clarifies the definitions to be applied to these rules and updates the list of official forms used by the Agency for Workforce Innovation and the Department of Revenue in administering and collecting Unemployment Compensation Program taxes. This rewording also clarifies the procedures relating to the employer reporting and registration, determinations of liability, payment of contributions, delinquent accounts, methods of financing benefits involving public and nonprofit employers, employing unit records, special deputy hearings to resolve protests of liability, assessment and reimbursement, and unemployment taxation of Indian tribes. The succession rule, Rule 60BB-2.031, Florida Administrative Code, has been omitted from the text of this rulemaking notice, inasmuch as it is the subject of a separate rule development.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 443.1317(1)(b)FS.
LAW IMPLEMENTED: 120.569, 120.57(1), 120.57(2), 443.036, 443.071, 443.121, 443.1215, 443.1217, 443.131, 443.1312, 443.1313, 443.1315, 443.1317, 443.141, 443.151, 443.163, 443.171, 443.191FS.
A HEARING WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW:
TIME AND DATE: May 16, 2006, 1:00 P.M. – 3:00 P.M. or until all business is concluded.
PLACE: Agency for Workforce Innovation, Caldwell Building, 107 E. Madison Street, Room B-49, Tallahassee, Florida 32399.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Ms. Nicole Cutchin at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: John R. Perry, Senior Attorney, 107 East Madison Street, MSC 110, Tallahassee, Florida 32399-4128, [phone].

THE FULL TEXT OF THE PROPOSED RULE IS:

(SUBSTANTIAL REWORDING OF RULES 60BB-2.022 through 60BB-2.037, Florida Administrative Code follows. Rule 60BB-2.0255, Florida Administrative Code has been deleted in its entirety.  See Florida Administrative Code for present text.  Rule 60BB-2.031, Florida Administrative Code is omitted from this text.)

 

 

 

CHAPTER 60BB-2 FLORIDA UNEMPLOYMENT COMPENSATION TAX

 

60BB-2.022 Definitions.

60BB-2.023 General Reporting Information.

60BB-2.024  Employer Registration Reports and Determinations of Liability

60BB-2.025 Reports Required of Liable Employers.

60BB-2.026 Determinations to Liable Employers.

60BB-2.027 Payment of Contributions.

60BB-2.028 Delinquent Accounts.

60BB-2.029 Changing Methods of Financing Benefit - Nonprofit and Public Employers.

60BB-2.032 Employing Unit Records.

60BB-2.035 Protests of Liability, Assessment, Reimbursement, and Tax Rate – Special Deputy Hearings.

60BB-2.036 Unemployment Compensation Tax for Indian Tribes.

60BB-2.037 Forms.

 

60BB-2.022 Definitions.

 

For the purpose of administering Chapter 443, F.S., the following definitions apply:

(1)   Address of record: The mailing address of a claimant, employing unit, or authorized representative, provided in writing to the Agency, and to which the Agency shall mail correspondence.

(2)   Agency: The Agency for Workforce Innovation.

(3)   Cash Value of Board, Lodging, or Other Payment in Kind: When, pursuant to Section 443.1217, F.S., board, lodging or other payments in kind are determined to be wages:(a) The value of a place of residence is the greater of:

1. The amount agreed upon in the contract of hire, or

2. The fair market rental value of the property.

(b) The value of lodging includes the cost of utilities, such as heat, electricity, gas, water, and sewer service.

(c) The value of  meals is as agreed upon in the contract of hire or, where no such agreement exists, at the same rate provided for State of Florida Class C travel subsistence as defined in Section 112.061(6)(b), F.S.

(4) Casual Labor: In accordance with 26 C.F.R. 31.3306(c)(3)-1, services performed for a corporation do not come within the casual labor exception provided in Section 443.1216(13)(s), F.S.

(5) Computation of time:  In computing any period of time prescribed, calendar days are counted; the date of issuance of a notice is not counted.  The last day of the period is counted unless it is a Saturday, Sunday, or holiday; in which event the period will run until the end of the next day that is not a Saturday, Sunday, or holiday. Holidays are those dates designated by Section 110.117(1) and (2), F.S., and any other day that the offices of the United States Postal Service are closed.

(6) Department:  The Department of Revenue, which pursuant to Section 443.1316, F.S., is designated as the tax collection service provider for the Agency.

(7) Payrolling:  As used in Rule 2.025, F.A.C., “payrolling” refers to a practice which is not authorized by law, whereby payrolls for two or more employers are consolidated for tax purposes with one employer reporting for the other(s), when none of the employers is licensed by the Florida Department of Business and Professional Regulation as an employee leasing company or has been approved by the Department as a common paymaster. 

(8)   Wages:

(a) Gross wages: Total wages for insured employment.

(b) Excess wages: The difference between total wages and taxable wages.

(c) Taxable wages: That portion of an employer’s payroll upon which contributions are due.

Specific Authority 443.1317, FS. Law Implemented 443.036(11), 443.1217, 443.131, 443.1316, 443.141, 443.171 FS. History–New 8-25-92, Amended 12-28-97, 12-23-98, 5-3-99, Formerly 38B-2.022, Amended 1-19-03.

60BB-2.023 General Reporting Information.

(1) Filing date.  The postmark date will be the filing date of any report, protest, appeal or other document mailed to the Agency or Department.  The term “postmark date” includes the postmark date affixed by the United States Postal Service or the date on which the document was delivered to an express service or delivery service for delivery to the Department.  The date of receipt will be the filing date of any report, protest, appeal, or other document faxed to the Agency or Department.  It is the responsibility of each employing unit to maintain a current address of record with the Department.  It is the responsibility of each claimant to maintain a current address of record with the Agency throughout the benefit year or extended benefit period. 

(2) Filing method.  Reports must be filed in the manner prescribed on the reporting form, including the worker’s social security number when required.  Reports filed by electronic means must be in compliance with Chapter 12-24, F.A.C., incorporated by reference.

(3) Reporting Wages Paid.  Wages are considered paid when:

(a) Actually received by the worker; or

(b) Made available to be drawn upon by the worker; or

(c) Brought within the worker’s control and disposition, even if not possessed by the worker.

(4)   Incomplete reports.

(a) Any required report incomplete as to detail in accordance with instructions thereon is not deemed a report and the employer is subject to the penalties imposed by Section 443.141(1)(b), F.S., until the filing of a signed and completed report in a format approved by the Department. 

(b) Notification to employers of incomplete reports will be issued by the Department by letter or by one of the following forms:

1. Form UCTFL06A, Incomplete Report Notice, or

2. Form UCTFL13A, Missing Wage Report.

Both forms are incorporated by reference in Rule 60BB-2.037, F.A.C.

(5) Amended and Corrected Reports.

(a) Amended Reports.  Amended reports must be filed as directed by the Agency or Department or as determined necessary by the employing unit.  The decision of the Agency or Department will prevail when there is disagreement whether an amended report is necessary.

(b) Corrected Quarterly or Annual Reports.  Corrections to quarterly or annual reports must be made on Form UCT-8A, Correction to Employer’s Quarterly or Annual Domestic Report, incorporated by reference in Rule 60BB-2.037, F.A.C.

(6) Extensions of Time for Filing Reports. Pursuant to Sections 443.141(1)(b) and 443.141(2)(a), F.S., when a written request for an extension of time for filing a required report is received prior to the report’s delinquent date, the Department will grant an extension not to exceed 30 days. Reports received within an approved extension period will be considered timely.

Specific Authority 443.1317, FS. Law Implemented 443.131, 443.141, 443.171, FS. History–New 8-25-92, Amended 12-28-97, Formerly 38B-2.023, Amended 1-19-03.

60BB-2.024 Employer Registration Reports and Determinations of Liability.

(1) Employer Registration Report.

(a)   Each employing unit must file an employer registration report with the Department of Revenue on Form DR-1, Application to Collect and/or Report Tax in Florida, incorporated by reference in Rule 60BB-2.037, F.A.C.

(b) The report must include the signature and title of a person legally authorized to act on behalf of the employing unit.

(c) The employer registration report must be filed by the last day of the month immediately following the end of the calendar quarter in which the employing unit commenced operations. Successor employers who wish to transfer employment records must comply with the requirements and time limits in Rule 2.031, F.A.C.

(2) Determination of Liability. Upon determining an employing unit liable for payment of contributions or reimbursements, the Department will issue a written determination, including the effective date of liability and, when applicable, the rate at which the employer must pay contributions pursuant to Section 443.131, F.S.  Specific Authority 443.1317, FS. Law Implemented 443.131, 443.141(2), 443.171(5), FS. History–New 8-25-92, Formerly 38B-2.024, Amended 1-19-03.

60BB-2.025 Reports Required of Liable Employers.

(1) Employer’s Quarterly Reports.

(a) Each contributing and reimbursing employer must file quarterly reports on Form UCT-6, Employer’s Quarterly Report, incorporated by reference in Rule 60BB-2.037, F.A.C. unless the employer solely employs workers who perform domestic services and has been approved by the Department to file reports annually pursuant to Section 443.131(1), Florida Statutes.  Payrolling, as defined in Rule 60BB-2.022, F.A.C., is not permitted.

(b) Each quarterly report must:

1. Be filed with the Department by the last day of the month following the calendar quarter to which the report applies, except for reports filed by electronic means, which are to be filed as provided in Rule 60BB-2.023, F.A.C.  However, an employer reporting for the first time is authorized 15 consecutive calendar days from the notification date of liability to submit reports for previous calendar quarters without incurring penalty charges; and

2. Be filed for each calendar quarter during which the employer was liable, even if no contributions are payable. If there was no employment during the calendar quarter to which the report applies, the report must be completed to so reflect; and

3.  Include wages paid at regular and irregular intervals during the calendar quarter; and

4. Include commissions and bonuses and the cash value of all remuneration paid in any medium other than cash during the calendar quarter.

2)  Reports of Change in Status.

(a) Sale, transfer, cessation, or other disposition of a business or part of a business.  Each liable employer must report any change in status to the Department using Form UCS-3, Employer Account Change Form, incorporated by reference in Rule 60BB-2.037, F.A.C., or by writing to the Department.  The report must be signed by a person with authority to submit such reports and:

1.     Be reported on or before the due date of the next quarterly report; and when applicable:

2. State the name and address of the person, firm or corporation to whom all or part of the business was sold, transferred or otherwise disposed; and

3. Include the name and address of the trustee, receiver, or other official placed in charge of the business when the status change results from bankruptcy, receivership or other similar situation; and

4. Be made by the employer’s court appointed personal representative when the status change results from the death of an employer or, in the event no personal representative is appointed by the heirs succeeding in interest of the employer; and

5. Be made by the former partners or joint adventurers when the change is due to dissolution of a partnership or joint venture.

(b) Other Changes.  Employers must report changes to business name, address, ownership, officers, legal entity status (such as from sole proprietorship to corporation or from partnership to limited liability company) and business operations in the manner required on Form UCS-3, Employer Account Change Form, incorporated by reference in Rule 60BB-2.037, F.A.C., or by writing to the Department.(3) Special Reports.

(a) Employee Leasing Company Reports.               

1.     Client List.  In addition to the information required by Section 443.036(18), F.S., the bi-annual report of each employee leasing company must identify the:

a.                                leasing company’s employer identification number; and

b.                               name of each client that leases employees from the company; and

 

c.                                   name and address of each job site where leased employees work, listed under                                    the name of the respective client; and

d.                                     name and social security number of each leased employee, listed under the respective job site; and

e.                                      total number of clients during the reporting period; and

f.                                       total number of employees leased during the reporting period.

2.     Filing Date.  The bi-annual report due June 30 becomes delinquent on August 1.  The bi-annual report due December 31 becomes delinquent on February 1 of the following year.  Delinquent reports are subject to penalties pursuant to Section 443.141(1)(b), F.S.

(b) Report of Work and Earnings.  During an investigation of eligibility for benefits, an employing unit must, if requested by the Agency or the Department, complete Form UCS-8, Firm’s Statement of Claimant’s Work and Earnings, incorporated by reference in Rule 60BB-2.037, F.A.C.

(c) Independent Contractor Questionnaire.  An employing unit must, if requested by the Agency or the Department, complete Form UCS-6061, Independent Contractor Analysis, incorporated by reference in Rule 60BB-2.037, F.A.C., when additional information is necessary to establish whether workers are employees or independent contractors.

(d) Annual Reporting of Certain Domestic Workers.

1.  Application.  An employer whose employees perform only domestic services may elect to report wages and pay taxes annually instead of quarterly, pursuant to Section 443.131(1), F.S., by completing and filing application Form UCT-7A Application to Select Filing Period for Employers who Employ ONLY Employees who Perform Domestic Services incorporated by reference in Rule 60BB-2.037, F.A.C., with the Department by December 1 of the year preceding the calendar year the annual reporting period will begin.  The Department will issue written notification of approval or denial to the applicant within 30 days after receipt of a completed application.  An employer whose application is approved does not need to resubmit an application for consecutive subsequent years.  An employer whose application is denied will have 20 days from the mailing date of the notification of denial to file a written protest with the Department.  The protest will be governed by the provisions of Rule 60BB-2.035, F.A.C.

2. An employer who is approved must report wages and pay taxes annually by filing Form UCT-7 in accordance with the instructions contained on the form.  However, an employer required to file by electronic means must file Form UCT-7 Annual Report for Employers of Domestic Employees Only by electronic means and concurrently pay taxes by electronic means in accordance with Rules 60BB-2.023(2) and 60BB-2.027(2)(a), F.A.C.

3.  An employer who ceases to qualify for annual reporting and payment or voluntarily discontinues annual reporting and payment or is terminated from the annual reporting and payment program for failure to timely furnish wage information must file with the Department, no later than the last day of the month following the calendar quarter in which the disqualification or termination occurred, all quarterly wage and tax reports due for all completed calendar quarters and pay all amounts due.  Any request to discontinue annual reporting must be submitted in writing to the Department and include the employer’s unemployment tax account number and the date the discontinuation is to be effective.  An employer whose participation has been terminated by the Department will have 20 days from the mailing date of the notice of termination to file a written protest with the Department.  Pending the final resolution of the protest the employer must timely file quarterly reports and pay all taxes due.  The protest will be governed by the provisions of Rule 60BB-2.035, F.A.C.

4.  Reapplication.

a.   An employer who terminates or is disqualified from annual reporting and payment may reapply by completing and filing Form UCT-7A Application to Select Filing Period for Employers who Employ ONLY Employees who Perform Domestic Services with the Department no later than December 1 of the year following disqualification or termination.  Upon re-application, an employer who timely furnished all required wage information and paid taxes due will be reconsidered for annual reporting effective January 1 of the calendar year following re-application.

                        b.   An employer of domestic employees who ceased to participate in annual                                         reporting pursuant to a voluntary written request, may reapply by completing and                                         filing Form UCT-7A with the Department no later than December 1 of the year                                       following disqualification or termination to be considered for annual reporting of                                  wages and paying taxes commencing January 1 of the following year.

Specific Authority 443.1317, FS. Law Implemented 443.036(18), 443.131, 443.141, 443.163, 443.171(5), FS. History–New 8-25-92, Formerly 38B-2.025, Amended 1-19-03.

 

 

60BB-2.026 Determinations to Liable Employers.

(1) Notice of Benefits Paid and Charged, Invoiced, or Credited.  A statement mailed to the employer within 30 days after the end of each calendar quarter will include the name and social security number of each claimant for whom benefits were charged, invoiced, or credited to the employer’s account during the previous calendar quarter.  Notification to contributing employers is provided on Form UCT-1, Notice of Benefits Paid.  Notification to reimbursing employers is provided on Form UCT-29, Unemployment Compensation Reimbursement Invoice.  Both forms are incorporated by reference in Rule 60BB-2.037, F.A.C.

(a) Requests for Redetermination.  The information contained on the notification regarding claimant and employer identity is conclusive and binding unless the employer files a written request for redetermination with the Agency within 20 days of the mailing date of the notification.  Such request will not serve to protest determinations, redeterminations, decisions, or orders issued pursuant to Section 443.151, F.S.

(b) Adjustment of Charges.

1. Contributing Employer.  When the Agency determines benefits charged to an employment record were paid in error or fraudulently obtained, the employment record will be adjusted to remove the erroneous charges.  The credit will be applied to the calendar quarter during which the adjustment is made.  However, when the employer timely protests the tax rate to the Agency or Department, or timely applies for a tax rate adjustment after determining the tax rate was adversely affected by the charge pursuant to Section 443.131(3)(h) F.S., the credit will be applied to the calendar year in which the benefit payments were charged.

2.  Reimbursing Employer:  When the Agency determines benefits billed to a reimbursing employer were paid in error or fraudulently obtained, the amount recouped or recovered from the claimant by the Agency will on a pro rata basis be credited to the reimbursing employer or refunded if the employer has no balance due.

(c) Appeals Regarding Charges to an Employer Account.

1.  Any appeal from a determination or redetermination with respect to the payment of benefits which involves the issue of whether an employer’s account will be charged as provided in Section 443.131(3)(a), F.S., and Rule 60BB-3.018, F.A.C., will be heard and decided by an appeals referee, in accordance with the provisions of Chapter 60BB-5, F.A.C.

2.  When an appeal from a determination or redetermination is filed pursuant to Section 443.151(4)(b), F.S., involving the application of Section 443.101, F.S., the appeals referee will, in the same proceeding, hear and decide any collateral issue with respect to whether benefit payments made pursuant to the decision will be charged to the employer’s account.

(2) Determination of Tax Rate Pursuant to Computation of a Benefit Ratio.  When an employer first becomes eligible for computation of a benefit ratio as provided in Section 443.131(3)(b), F.S., the Department will:

(a)  Notify the employer of the contribution rate by use of Form UCT-20, Unemployment Tax Rate Notice, incorporated by reference in Rule 60BB-2.037, F.A.C., at least 15 days before the end of the calendar quarter for which the rate is effective.

(b)  The rate will be effective for the calendar quarter in which eligibility was established and                  for the remainder of that calendar year.

(3) Determination of Audit Findings.  The Department will notify employers of the results of audit findings on Form UCTFL16F, incorporated by reference in Rule 60BB-2.037, F.A.C.

(4)   Determination of Employment Status.  The Department will issue determinations to notify employers regarding whether services performed by individuals or classes of workers were in statutorily covered employment, were exempt from unemployment insurance coverage, were performed by employees, or were performed by independent contractors.

Specific Authority 443.1317, FS. Law Implemented 443.131(3), 443.1312, 443.1313, 443.141(2)(b), 443.151(3)(c),(d), (4)(b), FS. History–New 8-25-92, Formerly 38B-2.026, Amended 1-19-03.

60BB-2.027 Payment of Contributions.

(1) Remittance with Quarterly Reports.  Payment is to be submitted concurrently with quarterly reports except for payment by electronic means which is to be submitted as provided in paragraph (2)(a) of this rule.  Contributions are payable for each calendar quarter with respect to wages paid during such calendar quarter, except as otherwise provided in this rule and Sections 443.1312-1313, F.S.

(2) Due and Payable Dates.

(a) Except for payments remitted by electronic means, contributions for the quarter ending March 31 are due April 30 and become delinquent on May 1; contributions for the quarter ending June 30 are due July 31 and become delinquent on August 1; contributions for the quarter ending August 31 are due September 30 and become delinquent October 1; contributions for the quarter ending December 31 are due January 31 and become delinquent February 1.  Payments remitted by electronic funds transfer (EFT), Internet, or other electronic means must be in compliance with the rule provisions in Chapter 12-24, F.A.C., incorporated herein by reference, regarding payment by electronic means.

(b) The first contribution payment of an employing unit which becomes an employer must include contributions for the entire period of liability.  Payment is due by the last day of the month following the calendar quarter in which the employing unit:

1. Met the liability provisions of the law, or

2. Elected, with written approval by the Department, to become an employer.

(3) Partial payments.  When an employer has partially paid contributions for any period before the delinquent date, the taxable payroll for such period will be included in the employer’s annual or quarterly payroll in the proportion that contributions paid for the period bear to the contributions due for such period.

Specific Authority 443.1317, FS. Law Implemented 443.121, 443.131, 443.141, 443.171(1), 443.191 FS. History–New 8-25-92, Formerly 38B-2.027, Amended 1-19-03.

60BB-2.028 Delinquent Accounts.

(1) Application of Partial Payments.  When a delinquency exists in the account of an employer not in bankruptcy and payment in an amount less than the total delinquency is remitted, the Department will apply the payment to the delinquency in such manner as the payer directs.  In the absence of specific written directions from the employer, the Department will apply a partial payment to billed quarters of delinquency first to satisfy contributions, next interest, next penalty, next service fee, and then filing fee, in each quarter in full before application of the remainder of such payment to the next earlier quarter of delinquency.  Once payment is applied pursuant to these rules, the application of payment will not be changed unless the Department made an application error.

(2) Billing.  As provided in Section 443.131(3)(g)1., F.S., the term “incurred by” will be applicable only after the indebtedness, determined in accordance with Section 213.24, F.S., has been billed, but unpaid, for at least four (4) consecutive calendar quarters.

(3) Notice of Indebtedness Affecting Tax Rates.

(a) Notice of indebtedness will be mailed on Form UCT-27, Notice of Amount Due, incorporated by reference in Rule 60BB-2.037, F.A.C. The Notice will be mailed at least thirty days prior to the effective date of rating to each employer whose tax rate may be affected.  Such indebtedness must be paid by the last day of the calendar quarter in which notification was mailed.

(b) An employer who is not notified of indebtedness because it was in an inactive status, as defined in Section 443.121(4), F.S., will be notified of the indebtedness when it returns to active status and the indebtedness must be paid within 30 days of the mailing date of the notification.

(4) Waiver of Penalty and Interest. Pursuant to Sections 443.1316 and 443.141(1), F.S., the Department is authorized to waive imposition of interest or penalty when the employer files a written request for waiver establishing that imposition of interest or penalty would be inequitable, however, the Department will not consider a request for waiver of penalty until the employer has filed all reports due for the five years immediately preceding the request for waiver.  Examples of inequity include situations where the delinquency was caused by one of the following factors:

(a) The required report was addressed or delivered to the wrong state or federal agency.

(b) Death or serious illness of the person responsible for the preparation and filing of the report.

(c) Destruction of the employer’s business records by fire or other casualty.

(d) Unscheduled and unavoidable computer down time.

(e) Erroneous information provided by the Agency or Department; failure of the Department to furnish proper forms upon a timely request; or inability of the employer to obtain an interview with a representative of the Department.  In each case, a diligent attempt to obtain the necessary information or forms must have been made by the employer in sufficient time that prompt action by the Department would have allowed the reports to be filed timely.

Specific Authority 443.1317, FS. Law Implemented 443.121(4), 443.131, 443.1312, 443.1313, 443.1315, 443.141, FS. History–New 8-25-92, Amended 12-23-98, Formerly 38B-2.028, Amended 1-19-03.

60BB-2.029 Changing Methods of Financing Benefits - Nonprofit and Public Employers.

(1) A non-profit or public employer will be assigned the applicable initial tax when changing from the reimbursing method to the contributing method of reporting.  Experience as a reimbursing employer will not be used to determine the tax rate.

(2) A non-profit or public employer changing from the reimbursing to the contributing method of financing benefits must continue reimbursing the fund for benefits that are based on wages paid as a reimbursing employer.  The requirement to remit taxes with quarterly reports begins on the effective date of the election to contribute.

(3) When a non-profit or public employer changes from the contributing to the reimbursing method of financing benefits and returns to the contributing method, the employment records in the prior contributing period will be used in computing a benefit ratio.

Specific Authority 443.1317, FS. Law Implemented 443.131, 443.1312, 443.1313, FS. History–New 8-25-92, Formerly 38B-2.029, Amended 1-19-03.

60BB-2.032 Employing Unit Records.

(1) Retention of Records.  Each employing unit will maintain all records pertaining to remuneration for services performed.  Such records must be maintained for a period of five years following the calendar year in which the services were rendered and must also be made available to the Agency or Department upon request.  If the records are maintained outside of Florida, a resident agent must be designated in Florida, through which the records may be obtained by the Agency or the Department.

(2) Record Contents. Records must contain true and accurate information regarding each worker as follows:

(a) Name and social security number; and

(b) Place of employment within the State.  For the purpose of this rule, the place of employment is to be recorded as the county in Florida in which the work was performed.  The place of employment of a worker who performed work in more than one county is to be recorded as the county in Florida which serves as the worker’s base of operation; or, if the worker has no base of operations in Florida, the place of employment is to be recorded as the State of Florida at large; and

(c) Beginning and ending dates of each pay period and dates on which work was performed during each pay period; and

(d) Amount of remuneration paid to each worker for each pay period and dates of payment.  If paid on an hourly or piece rate basis, the records must state for each day the remuneration earned on such basis and the date of payment.  If paid on an hourly basis, the number of hours worked in each pay period must be recorded; and

(e) Date(s) hired, re-hired, and returned to work after temporary separation from work, and the date(s) of separation; and

(f) Special payments of any kind.  All special payments, including bonuses, gifts, prizes, etc., must be recorded separately.  The record must include the amount of money payments, reasonable cash value of other remuneration, the nature of such payments and, if appropriate, the period during which services were performed for such payments; and

(g) The address of each location where payroll records are maintained.

(3) Failure to Maintain Records.  An employing unit that fails to maintain and/or provide required records of employment will be determined liable effective on the date employment first occurred, as established by the Department using the best available information.

(4)  Power of Attorney.  An employing unit may authorize its representative to receive confidential tax records or information by submitting a power of attorney with the Department.  The Department prescribes DOR Form UCT-62, incorporated by reference in Rule 60BB 2.037, F.A.C.

Specific Authority 443.1317, FS. Law Implemented 443.071(2), (3), 443.141(2), 443.171, FS. History–New 8-25-92, Formerly 38B-2.032, Amended 1-19-03.

60BB-2.035 Protests of Liability, Assessment, Reimbursements, and Tax Rate - Special Deputy Hearings.

(1) Filing a Protest. Protests of determinations of liability, assessments, reimbursement requirements, and tax rates are filed by writing to the Department of Revenue in the time and manner prescribed on the determination document.  Upon receipt of a written protest, the Department will issue a redetermination if appropriate.  If a redetermination is not issued, the letter of protest, determination, and all relevant documentation will be forwarded to the Office of Appeals, Special Deputy Section, in the Agency for Workforce Innovation for resolution.(2) Each protest is to contain:

(a) The employer account number assigned to the Petitioner by the Department of Revenue;

(b) The name, address, and telephone number of the Petitioner; the name, address, and telephone number of the Petitioner’s representative, if any, which will be the address for service during the course of the proceeding; and an explanation of how the Petitioner’s substantial interests will be affected by the Department’s determination;

(c)  A statement of when and how the Petitioner received notice of the Department’s determination;

(d) A statement of all disputed issues of material fact. If there are none, the petition should so indicate;

(e) A concise statement of the ultimate facts alleged, including the specific facts the Petitioner contends warrant reversal or modification of the determination;

(f)  A statement of the specific rules or statutes the Petitioner contends require reversal or modification of the determination: and

(g)  A statement of the relief sought by the Petitioner.

(2) Proceedings.  Special deputies will conduct hearings and issue recommended orders to the Director or Director’s designee on protests of determinations of liability, tax rates, assessments, and reimbursement requirements.

(3) Parties.  The Agency through its designee, the Department of Revenue, will be a party respondent in each of the above protests. Where a protest arises from a claim or claims for benefits, the claimant will be joined as a party.

(4) Timely Protest.

(a) 1. Determinations issued pursuant to Sections 443.1216, 443.131, and 443.1312, F.S., will become final and binding unless application for review and protest is filed with the Department within 20 days from the mailing date of the determination.  If not mailed, the determination will become final 20 days from the date the determination is delivered.

2. Determinations issued pursuant to Section 443.141, F.S., will become final and binding unless application for review and protest is filed within 15 days from the mailing date of the determination.  If not mailed, the determination will become final 15 days from the date the determination is delivered.

(b) If a protest appears to have been filed untimely, the Agency may issue an Order to Show Cause to the Petitioner, requesting written information as to why the protest should be considered timely.  If the Petitioner does not, within 15 days after the mailing date of the Order to Show Cause, provide written evidence that the protest is timely, the protest will be dismissed.

(5) Acceptance or denial by the Agency Director or the Director’s designee.

(a) Each application for review of tax rate, assessment, or redetermination issued pursuant to Sections 443.131(3)(i)1., 443.131(4)(b), 443.1312(3), 443.1313, and 443.141(2)(a), F.S., shall be considered by the Director or Director’s Designee.  When the application alleges facts which, if true, would entitle the applicant to a favorable redetermination, the Director or the Director’s designee will grant the application for review; otherwise the application shall be denied.

(b) If a timely application for review is granted, the Agency will conduct an administrative hearing in the matter.

(6) Burden of Proof.  The burden of proof will be on the protesting party to establish by a preponderance of the evidence that the determination was in error.

(7) Hearing.  Hearings will be conducted telephonically or, if in-person, at one of the Agency’s established UC Appeals Office locations in Florida.

(8) Furnishing Documents to the Parties.  Pursuant to Sections 443.171(5), and 443.1715, F.S., the Department will provide to the Special Deputy and to each party documents and official records in its possession regarding the case.

(9) Notice of Hearing.  The special deputy will set the time and place for all hearings and mail written notice to each party’s address of record at least 14 days before a hearing on the merits of the protest, unless otherwise agreed by the parties.

(10) Subpoenas.

(a) Upon written application of any party of record or upon the special deputy’s own motion, the special deputy may issue subpoenas pursuant to Section 443.171(7), F.S., requiring the attendance of witnesses or production of records, files and memoranda at any hearing before a special deputy for the purpose of taking the testimony of such witnesses or inspecting such documents.  The application for subpoena must include the full name and address of the witness for whom the subpoena is to be issued and the time and place for the witness to appear and/or produce documents. Requests for subpoenas duces tecum must describe with particularity the documents to be provided to the special deputy and parties.  Any application for subpoena must be delivered to the office of the special deputy sufficiently in advance of the scheduled date of the hearing to allow service prior to hearing 

 (b) A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is of majority age.  Service may be made by a party’s attorney or representative.  Proof of personal service will be made by certification of the person making service if not served by an officer authorized by law to do so.  If service is made by certified mail, the returned postal service receipt will be proof of service.

(c) Any person subject to a subpoena may, for any of the grounds set forth in Section 120.569(2)(k)1., F.S., file with the special deputy a motion to quash or limit the scope of the subpoena.  The motion must be made sufficiently in advance of the date set for compliance with the subpoena to allow the special deputy to rule on the motion and provide notice to the parties of the ruling.  If the special deputy’s written ruling is not received prior to the date set for compliance, the moving party must appear at the designated time and place prepared to comply with the subpoena.  The moving party will be entitled to an oral ruling on the motion entered into the record at the inception of the hearing.

(d) If a person fails to comply with a subpoena, the party requesting the subpoena may seek enforcement by filing a petition for enforcement pursuant to Section 120.569(2)(k)2., F.S., in the circuit court of the judicial circuit wherein the person in noncompliance resides.

(11) Discovery.  Parties may obtain discovery as provided in Rules 1.280 through 1.410, Florida Rules of Civil Procedure.  Upon request by a party the special deputy is authorized to issue orders to effectuate the purposes of discovery and to prevent delays, including orders shortening the period of time during which discovery is to be performed.

(12) Continuance.  The special deputy may, upon request of a party or upon the special deputy’s own motion, continue a hearing for good cause.

(a) Requests for continuance must state the reasons therefore and be made either in writing prior to the hearing or orally on the record at the hearing.

(b) The special deputy must immediately consider the request for continuance and provide written notice of the ruling to the parties.

1. If granted, the special deputy will so notify the parties in writing.

2. If denied, the appeals referee will so notify the parties in writing and proceed with the hearing as scheduled.

3.  If it does not appear that the parties will receive a mailed ruling prior to the scheduled date of the hearing, the special deputy will nevertheless mail the ruling.  If the request is denied the special deputy will proceed with the hearing.  If the request is granted, the Office of Appeals will attempt to so notify each party by telephone.

4.  If a continuance request is made during the course of a hearing, the special deputy will enter the ruling on the motion into the record and then proceed or adjourn.

5. If subsequent to hearing, but prior to rendition of a Recommended Order, the special deputy decides an additional hearing is necessary, the parties shall be so advised in writing.

(13) Appeals Procedures.  Appeals procedures will be in accordance with Section12.057, F.S., and this rule.

(14) Evidence.

 (a) Oral evidence shall be taken only on oath or affirmation, whether the hearing is conducted by telephone, in-person, or by other means approved by the Agency.

(b) The special deputy will prescribe the order in which testimony will be taken and preserve the right of each party to present evidence relevant to the issues, cross-examine opposing witnesses, impeach any witness and rebut the evidence presented.  The special deputy will restrict the inquiry of each witness to the scope of the proceedings.

(c) Hearsay evidence, whether received in evidence over objection or not, may be used to supplement or explain other evidence, but will not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in Chapter 90, F.S.

(d) The rules of privilege apply to the same extent as in civil actions under Florida law.

(e) Any party wishing to proffer documents at a telephone hearing must deliver a copy of each document to the special deputy and all parties and addresses shown on the Notice of Hearing, in sufficient time for receipt prior to the telephone hearing.  Only documents received by the parties will be considered, unless the right to view the documents is waived.

(15) Recordation.  The proceedings will be recorded by the special deputy. The recording of the testimony will be placed in the official record and preserved at least 180 days from the date of the Final Order.

(16) Non-Appearance of Petitioner.  The failure of the Petitioner to appear at the hearing or to comply with any lawful order will be cause for dismissing the appeal.

 (17) Request to Re-Open Proceedings.  Upon written request of the Petitioner or upon the special.  deputy’s own motion, the special deputy will for good cause rescind a Recommended Order to dismiss the case and reopen the proceedings.  Upon written request of the Respondent or Joined Party, or upon the special deputy’s own motion, the special deputy may for good cause rescind a Recommended Order and reopen the proceedings if the party did not appear at the most recently scheduled hearing and the special deputy entered a recommendation adverse to the party.  The special deputy will have the authority to reopen an appeal under this rule provided that the request is filed or motion entered within the time limit permitted to file exceptions to the Recommended Order.  A threshold issue to be decided at any hearing held to consider allowing the entry of evidence on the merits of a case will be whether good cause exists for a party’s failure to attend the previous hearing.  If good cause is found, the special deputy will proceed on the merits of the case.  If good cause is not found, the Recommended Order will be reinstated.    

(18) Post Hearing Submissions.  Any party initiating correspondence pursuant to items (a) through (e) of this subsection must send a copy of the correspondence to each of the parties whose address is shown on the notice of hearing or was added at the hearing, and indicate that copies were sent.

(a) The parties will have 15 days from the date of the close of testimony to submit written proposed findings of fact and conclusions of law with supporting reasons.  If mailed, the postmark date will be considered the date of submission.  However, no additional evidence will be accepted after the hearing has been closed.

(b) The special deputy will prepare and transmit a Recommended Order including findings of fact and conclusions of law together with the record of the proceedings and the parties’ proposed findings of fact and conclusions of law to the Director or the Director’s designee for decision.  A copy of the Recommended Order will be mailed to all parties of record.

(c) Any party aggrieved by the Recommended Order may file written exceptions to the Director or the Director’s designee within 15 days of the mailing date of the Recommended Order.

(d) Any opposing party may file counter exceptions within 10 days of the mailing of the original exceptions.

(e) A brief in opposition to the counter exceptions may be filed within 10 days of the mailing of the counter exceptions.

(19) Extensions of Time.  Upon application, an extension of time may be granted for submitting proposed findings of fact and conclusions of law, and for submitting exceptions, counter-exceptions, and briefs.  Unless verbally approved on the record during the hearing, a written application for extension of time, including the reason for the request and the amount of time requested, must be received by the special deputy prior to the expiration of the original deadline.

(20) Director’s Order.  The Director or the Director’s designee will make a decision and issue a written order in the matter and serve a copy of the order to the parties by certified mail.

(21) Finality.  Orders of the Director or the Director’s designee will become final when the time has expired for seeking judicial review, provided such review has not been invoked.

 

Specific Authority 443.1317 and 443.171(2), FS. Law Implemented 120.569, 120.57[(1),](2), 443.036(19), (20),(21), 443.131(3), 443.141(2),(3), 443.151,443.171(1),[(6),](7),(8),(9), FS. History–New 8-25-92, Formerly 38B-2.035, Amended 1-19-03.

60BB-2.036 Unemployment Compensation Tax For Indian Tribes.

(1) Each liable Tribe or tribal unit that elects to make reimbursements in lieu of contributions must submit a completed form UCT-28T Indian Tribe Election of Payment Method Under the Unemployment Compensation Law, in accordance with Sections 443.1312 and 443.1315, F.S.  The Tribe or tribal unit must also submit a surety bond. The surety bond must be issued by a bonding company or insurance company authorized by the Department of Insurance to do business in this state.  If the bond is signed by an out-of-state agent it must be countersigned by a Florida resident agent.  The surety bond must be submitted on form UCT-40 within 90 days of the effective date of an Indian tribe or tribal unit’s election to make reimbursements in lieu of contributions.  The bond must be effective as of January 1 of that calendar year.  The Department will not grant final approval of the election application until the bond is timely received and approved.  The bond is to be conditioned upon the Indian tribe or tribal unit’s timely compliance with the payment provisions of Section 443.1315, F.S.  Forms UCT-28T and UCT-40 are hereby incorporated by reference in Rule 2.037, F.A.C., and are available by:

(a)   Writing to the Florida Department of Revenue, Central Registration-Unemployment Tax, Post Office Box 6510, Tallahassee, Florida 32314-6510;

(b)   Faxing a request to the Department of Revenue’s Unemployment Tax Registration Unit at [phone];

(c) Calling the Department of Revenue’s Unemployment Tax Registration Unit at [phone]; or

(d) Dialing the TDD number for the Department of Revenue at [phone] for persons with hearing or speech impairments.

(2) The bond will be duly executed by the principal and the surety.  The amount of the bond will be calculated by determining the average amount of benefits charged to the applicant per quarter during the previous calendar year and multiplying that average by two.  If there is insufficient employer history to determine the average, the amount of the bond will be thirty percent of the number of the applicant’s employees, multiplied by three thousand dollars.  The Department may review the bond annually to determine if there is a need to adjust the face amount.  If the Department determines that the bond amount needs to be increased it will advise the Indian tribe or tribal unit which will have 90 days from the date of notification to increase the amount of the bond.  The Department may seek recovery from the surety on the bond at any time subsequent to the failure of the Indian tribe or tribal unit to pay any bill within 30 days of the mailing date of the bill pursuant to Section 443.1313, F.S.

(3) The bond will be effective until it is canceled.  The surety company must give the Department at least 90 days written notice if it intends to cancel the surety bond.  The cancellation will not be effective until 90 days after the Department receives written notice of the cancellation.  Any cancellation of the bond will not affect any liability incurred or accrued prior to the effective date of the cancellation.  Failure of the Indian tribe or tribal unit to have in effect a surety bond in the amount determined necessary by the Department will cause the Indian tribe or tribal unit to lose the option to make reimbursements in lieu of contributions effective the following calendar year.

Specific Authority 443.1315(7) and 443.1317  FS. Law Implemented 443.1315 FS. History–New 7-29-03.

60BB-2.037 Forms.

(1) The following forms are incorporated into this Chapter by reference.

(a)  Form DR-1, Application to Collect and/or Report Tax in Florida (Rev. 07/06).

(b) LES Form UCS-2A, Questionnaire for Voluntary Election of Unemployment Compensation Coverage (Rev. 09/01).

(c) Form UCS-1S, Report to Determine Succession and Application for Transfer of Experience Rating Records (Rev. 01/06).

(d) Form UCS-2, Voluntary Election to Become an Employer Under the Florida Unemployment Compensation Law (Rev. 08/01).

(e)  Form UCS-3, Employer Account Change Form (Rev. 01/06).

(f)  Form UCS-6, Employers Reciprocal Coverage Election (Rev. 12/00).

(g)  Form UCS-6061, Independent Contractor Analysis (Rev. 11/05).

(h)  Form UCS-70, Application for Common Paymaster (Rev. 08/01).

(i)  Form UCT-1, Notice of Benefits Paid (Rev. 05/03).

(j)  Form UCT-6, Employer’s Quarterly Report (Rev. 01/06).

(k) Form UCT-7, Annual Report for Employers of Domestic Employees Only (Rev. 08/04).

(l) Form UCT-7A, Application to Select Filing Period for Employers who Employ ONLY Employees who Perform Domestic Services (Rev. 06/03).

(m) Form UCT-8A, Correction to Employer’s Quarterly or Annual Domestic Report (UCT-6) (Rev. 05/04).

(n) Form UCT-18, Notice of Tax Lien (Rev. 07/04).

(o) Form UCT-20, Unemployment Compensation Tax Rate Notice (Rev. 01/06).

(p) Form UCT-27, Unemployment Tax Notice of Tax Action (Rev. 09/04).

(q) Form UCT-28T Indian Tribe Election of Payment Method Under the Unemployment Compensation Law (Rev. 08/02).

(r) Form UCT-29, Unemployment Compensation Reimbursement Invoice (Rev. 01/05).

(s)  Form UCT-40 Indian Tribe Unemployment Surety Bond (Rev. 05/03).

(t)    Form UCT-50T, Magnetic Media Reporting Transmittal (Rev. 01/01).

(u)   Form UCTFL06A, Incomplete Report Notice (Rev. 05/01).

(v)   Form UCTFL16F, Notification of Audit Results (Rev. 01/04).

(w) Form UCT-FL13A, Missing Wage Report (Rev. 05/01).

(x)    Form UCT-62, Power of Attorney for Unemployment Tax (Rev. 11/05).

(y) Form UCS-8, Firm’s Statement of Claimant’s Work and Earnings (Rev. 07/03).

(2) Copies of forms. Forms incorporated in this rule are available, by one or more of the following methods:

(a) Writing to the Florida Department of Revenue, Distribution Center, 168A Blountstown Highway, Tallahassee, Florida 32304;

(b) Faxing a request to the Forms Distribution Center at [phone];

(c) Visiting any local Department of Revenue Service Center to personally obtain a copy;

(d) Calling the Forms Request Line Monday-Friday from 8:00 AM to 5:00 PM Eastern Time at [phone] (in Florida only) or [phone];

(e) Downloading selected forms from the Department of Revenue’s Internet site (www.myflorida.com/dor);

(f) Dialing the TDD number for the Department of Revenue at [phone] for persons with hearing or speech impairments.

Specific Authority 443.1317, FS. Law Implemented 443.131, 443.141, and 443.171(5), FS. History–New 1-19-03.

NAME OF PERSON ORIGINATING PROPOSED RULE: John R. Perry, Senior Attorney, 107 East Madison Street, MSC 110, Tallahassee, Florida 32399-4128.
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Mindy K. Raymaker, Deputy General Counsel, 107 East Madison Street, MSC 110, Tallahassee, Florida 32399-7128.
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 19, 2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: April 7, 2006