Summary
In Dailey v. Division of Employment and Industrial Commission, Colo.App., 488 P.2d 243, under facts practically identical to those in the present case, we held the claimant was not entitled to unemployment compensation, since he was not unemployed within the provisions of the Act.
Summary of this case from Huff v. Thrift Indus. BankOpinion
No. 71-081
Decided August 24, 1971.
Unemployment compensation case. Claimant, president and director of a corporation, appealed denial of compensation.
Affirmed
1. UNEMPLOYMENT COMPENSATION — Unemployment Compensation — Officer of Corporation — Not Entitled — During Period — Performs Services. Where an officer of a corporation provides services of any kind to that corporation, he is to be considered an employee of the corporation and is not entitled to unemployment compensation benefits for period during which he continues to be corporate officer and continues to perform services for said corporation.
Review of Order from the Industrial Commission of Colorado
John L. Dailey, pro se.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Harris, Assistant, for respondent Industrial Commission of the State of Colorado (Ex-officio Unemployment Compensation Commission of Colorado)
The claimant was employed as an engineer for Cameron Engineers, Inc. This employment was terminated in June 1970, and claimant applied for unemployment compensation. On the application form the claimant stated that he was president and director of Xisto Building Corporation, a small corporation which owned the building leased by his former employer. Because of his holding such office, the claim for unemployment compensation was denied by the referee, which denial was upheld upon appeal to the Commission. Claimant has appealed to this court.
The issue turns upon C.R.S. 1963, 82-1-3(21), which states:
"'An employee' is any person, including an officer . . . of a corporation, employed by an employing unit, who . . . performs services of any kind for and at the request of an employing unit, whether or not for remuneration."
[1] The statute is clear in stating that where an officer provides services of any kind to a corporation he is to be considered an employee of that corporation and not entitled to unemployment compensation while he continues to be an officer of the corporation and performs services for said corporation.
By letter to the Commission, the claimant admitted that he was an officer of a corporation and that the corporation was an employing unit under the statute. However, he maintains that the statute does not apply to him because of the fact that his position as president of the corporation was a mere formality, and that he was not in an actual sense employed by this particular corporation.
The difficulty with this position is that the referee found that claimant devoted several hours per month to corporate business. This finding is substantiated by the evidence. Claimant admits he aided the corporate treasurer in the necessary accounting required in the dissolution of the corporation, and that he performed services for the corporation as its president, which acts benefited the corporation.
Claimant relies upon Brannaman v. Richlow Manufacturing Co., 106 Colo. 317, 104 P.2d 897. This case does not support his position in that it was decided under the prior statute which defined an employee as one who is paid monetary compensation. Claimant performed at least minimal services designed to benefit the corporation while serving as president of the corporation, and therefore he is not entitled to benefits.
Order affirmed.
JUDGE ENOCH and JUDGE DUFFORD concur.