Rule 300-2-5-.01 - Employer Tax Liability Appeals(1) For the purposes of this rule, "tax liability" shall mean the status of an employing unit as a liable or not liable employer. It shall not mean any specific sum that has been assessed or specific tax rate that has been assigned to an employing unit.(2) Determination of liability.(a) Liability for unemployment insurance taxes shall be based upon the definitions found in the Employment Security Law, primarily to include "employing unit", "employer", "employment", and "wages". Definitions of these same terms from the common law or other state or federal laws shall not be controlling. Likewise, neither the language of a contract, such as an independent contractor agreement, nor a party's belief about the status of a worker shall be controlling. A determination of unemployment insurance tax liability shall be based on the true underlying nature of the relationship between a worker and an entity.(b) Any entity ("employing unit") that remunerates any individual for the performance of personal services in this state shall cooperate with the department for the purposes of determining unemployment insurance tax liability.1. It shall be the duty of any such employing unit to ensure it is either compliant with the unemployment insurance reporting and tax requirements of the law and these rules, or that it is entitled to a specific statutory exemption from such requirements.2. In any administrative proceeding before the department or Office of State Administrative Hearings, an employing unit shall bear the burden of proof to show it is entitled to an exemption from the reporting and tax requirements of the law and these rules.3. If an individual is remunerated by a different entity than the one for whom such personal services are actually performed, the entity remunerating the individual shall have the duty of ensuring compliance with the reporting and tax requirements of the law and these rules. Such entity shall: (i) Cooperate in disclosing to the department:(I) The identity of any entity for whom the individual performed the personal services at issue; and(II) The frequency and nature of the relationship, including any written agreements governing the payment of the wages at issue and any commonality of ownership with any such entity; and(ii) Have the burden of proof to show the services are exempt from unemployment insurance taxes, or, if such services are not exempt, to show liability for the services should be assigned to another entity, whether through the agency provisions of O.C.G.A. Section 34-8-34 or otherwise.4. Failure to cooperate with the department or to meet the burden of proof may result in liability being assigned to the entity remunerating the individual.(c) The determination as to the unemployment insurance tax liability of any employing unit shall be based upon the information contained in a properly executed Form DOL-1 or Form DOL-1A, "Employer Status Report", or Form DOL-1G, "Registration of Governmental Organizations", together with other available information and reports of investigations.1. For the purpose of determining liability of any employing unit as defined in O.C.G.A. Section 34-8-33,"week" means a period of seven (7) consecutive calendar days beginning with the first day of the calendar week and ending at midnight on the last day of such calendar week during a calendar year. If any such week includes December 31 and January 1, the days up to January 1 shall be deemed one calendar week and the days beginning January 1 another such week.2. The employing unit shall be promptly notified of the determination and the reasons thereof.(3) Appeals from a determination of tax liability.(a) Any interested party who claims to be aggrieved by a determination of unemployment insurance tax liability may protest the findings contained in the determination and such protest, in writing, shall be deemed as an appeal from such determination. 1. In addition to appeals from a determination of tax liability, the law or these rules may provide the right to an administrative appeal hearing to protest a specific unemployment insurance tax related determination made by the department. When such a right has been specifically provided in the law or these rules, the protest shall be handled in accordance with the procedures set forth in this rule, unless the law or rules provide that the Commissioner shall preside at the hearing and be the ultimate decision maker.2. There shall be no right to an administrative appeal hearing to protest any unemployment insurance tax determination unless such a right is specifically provided in the law or these rules.3. Neither the Unemployment Insurance Appeals Tribunal nor Board of Review shall have jurisdiction over an appeal of an unemployment insurance tax liability determination.4. The filing of an appeal shall not stop the accrual of penalty or interest on delinquent reports and taxes.(b) The protest shall set forth the specific grounds for the protest and shall be filed with the unit in the department which released the determination within fifteen (15) days of the date of mailing of the tax liability determination. An appeal shall be considered timely filed with the department if it is postmarked or hand delivered within fifteen days of the mailing date of the determination of liability. For purpose of these rules, a postal meter mark will not be considered to be a postmark. Determinations which are appealed via alternative means of delivery such as electronically, private courier, facsimile transmittal, or otherwise in parcels lacking physical evidence of delivery by the U.S. Postal Service shall be deemed filed the date the appeal is received by the department pursuant to Official Code of Georgia Annotated Section 50-13-23.(c) The department shall promptly compile sufficient copies of the record and forward them with the appeal to the Office of State Administrative Hearings (OSAH) where it will be processed in accordance with the Georgia Administrative Procedures Act (O.C.G.A. Section 50-13-1, et seq.).(d) In preparation for a hearing before the Office of State Administrative Hearings, any interested party shall be allowed to examine or review relevant confidential department records in addition to those filed with the record and appeal to the Office of State Administrative Hearings. A written request for such examination or review must be received by the department reasonably in advance of the scheduled hearing. The request must be consistent with the disclosure provisions of the Employment Security Law at O.C.G.A. Section 34-8-120, et seq.(4) Appeals from the employer tax liability determination rendered by the Administrative Law Judge shall be made directly to Superior Court and not to the board of review. The decision of the Administrative Law Judge shall become final and binding thirty (30) days from the date the Administrative Law Judge's final order is dated and filed with the Office of State Administrative Hearings unless, prior to the expiration of the thirty (30) day period, a petition for judicial review is filed with the Superior Court as provided by Official Code of Georgia Annotated Section 50-13-19. No stay shall operate after the expiration of the thirty (30) day appeal rights to Superior Court. The Commissioner shall be a party at interest to such decision. (a) A party at interest who has filed an appeal for judicial review to the Superior Court, may, upon request, be supplied information from the records of the department to the extent necessary for the proper presentation of an appeal to the Superior Court. The request must be consistent with the confidentiality provisions of O.C.G.A. Section 34-8-120, et seq.(b) Service. A petition for judicial review to Superior Court must join the Commissioner as a party at interest in the action. Timely service may be perfected upon the Commissioner either personally or by mail at the Georgia Department of Labor, 148 International Boulevard, N.E., Atlanta, Georgia 30303-1751. Service by any other means shall not be sufficient.Ga. Comp. R. & Regs. R. 300-2-5-.01
O.C.G.A. §§ 34-2-6(a)(4), 34-8-70(b).
Original Rule entitled "Maintenance and Inspection" adopted. F. and eff. May 18, 1965.Repealed: New Rule entitled "Regulations Relating to the Determination of Liability to Employers and Appeals from such Determinations" adopted. F. May 20, 1966; eff. June 8, 1966.Repealed: New Rule entitled "Employer Liability Appeals" adopted. F. Oct. 16, 1974; eff. Nov. 5, 1974.Repealed: New Rule of same title adopted. F. Nov. 4, 1976; eff. Nov. 24, 1976.Repealed: New Rule of same title adopted. F. June 29, 1979; eff. July 19, 1979.Repealed: New Rule of same title adopted. F. Oct. 24, 1983; eff. Nov. 13, 1983.Amended: F. Jan. 9, 1989; eff. Jan. 29, 1989.Repealed: New Rule of same title adopted. F. Aug. 28, 1992; eff. Sept. 17, 1992.Repealed: New Rule entitled "Employer Tax Liability Appeals" adopted. F. Jan. 15, 1998; eff. Feb. 6, 1998, as specified by the Agency.Amended: F. June 25, 1998; eff. July 15, 1998.Amended: F. Oct. 29, 2024; eff. Nov. 18, 2024.