Chapter 79 Oregon Laws 2009

AN ACT

HB 2201

Relating to unemployment insurance administration; creating new provisions; and amending ORS 657.044, 657.552 and 657.681.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 657.044 is amended to read:

657.044. (1) As used in this chapter, “employment” does not include service performed for:

(a) A corporation by corporate officers who are directors of the corporation, who have a substantial ownership interest in the corporation and who are members of the same family if the corporation elects not to provide coverage for those individuals. The election shall be in writing and shall be effective on the first day of the [calendar quarter] current calendar quarter or of the calendar quarter preceding the calendar quarter in which the request was submitted.

(b) A limited liability company by a member, including members who are managers, as defined in ORS 63.001.

(2) The provisions of this section do not apply to service performed for:

(a) A nonprofit employing unit;

(b) This state;

(d) An Indian tribe.

(3) As used in this section, “members of the same family” means persons who are members of a family as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren.

SECTION 2. Section 3 of this 2009 Act is added to and made a part of ORS chapter 657.

SECTION 3. (1) In the case of default by an employer, as provided in ORS 657.515, a person described in subsection (2) of this section who, as an officer, member, partner or employee, is under a duty to perform the actions required by employers under this chapter shall be personally liable for amounts due under this chapter. More than one person may be jointly and severally liable under this section.

(2) This section shall apply only to a person who is one or more of the following:

(a) An officer or employee of a corporation;

(b) A member or employee of a limited liability company; or

(c) A partner in or employee of a limited liability partnership.

(3) If the Director of the Employment Department determines that an amount is due under this section, the director shall issue a notice of assessment to the person liable under this section mailed to the person’s last-known address of record with the director.

(4) If the director has reason to believe that the person liable under this section is insolvent, the director may issue a jeopardy assessment as provided by ORS 657.681 (4).

(5) Amounts assessed under this section may be reviewed in the manner provided by ORS 657.681 (5).

SECTION 4. ORS 657.552 is amended to read:

657.552. (1) Except in the case of failure without good cause to file a return, fraud or intent to evade any provision of this chapter or authorized [regulations] rules, every notice of assessment shall be given within four years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued. An employer or person liable under section 3 of this 2009 Act may waive this limitation period or may consent to its extension.

(2) In case of failure without good cause to file a return, every notice of assessment shall be given within eight years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued. An employer or person liable under section 3 of this 2009 Act may waive this limitation period or may consent to its extension.

(3) [No] An action or suit [shall] may not be commenced to collect any amount of contributions, interest or penalties due under assessment unless such action or suit is commenced within three years from the date of the assessment, except in the case of fraud or intent to evade any provision of this chapter or authorized regulations, an action or suit may be commenced at any time.

(4) If the cause of action or suit accrues or has accrued against any employer or person liable under section 3 of this 2009 Act who is out of the state or concealed therein, such action or suit may be commenced within three years after the return of the employer or person into the state, or the time of the concealment of the employer or person has ended.

SECTION 5. ORS 657.681 is amended to read:

657.681. (1) If an employer files a report for the purpose of determining the amount of contributions due under this chapter but fails to pay contributions or interest, the Director of the Employment Department or authorized representative may assess the amount of contributions or interest due on the basis of the information submitted and shall give written notice of the assessment to the employer mailed to the employer’s last-known address of record with the director. In the event that such report is subsequently found to be incorrect additional assessments may be made, subsection (5) of this section to the contrary notwithstanding.

(2) If an employer fails to file a report when required by the director for the purpose of determining the amount of contribution due under this chapter, the director or authorized representative may make an estimate based upon any information of the amount of wages paid for employment in the period or periods for which no report was filed and upon the basis of such estimate shall compute and assess the amount of employer contributions payable by the employer. Written notice of the assessment to the employer shall be mailed to the employer’s last-known address [of the employer] of record with the director.

(3) If the director or authorized representative is not satisfied with a report made by an employer for the purpose of determining the amount of contribution due under this chapter, the director or authorized representative may compute the amount required to be paid upon the basis of facts contained in the report or upon the basis of any information obtainable and may make an assessment of the amount of the deficiency. Written notice of such deficiency assessment to the employer shall be mailed to the employer’s last-known address [of the employer] of record with the director.

(4) If the director or authorized representative has reason to believe that an employer or person liable under section 3 of this 2009 Act is insolvent, or that the collection of any contributions will be jeopardized by delaying collection, the director or authorized representative may thereupon make an immediate assessment of the estimated amount of accrued contributions, noting upon the assessment that it is a jeopardy assessment levied under this subsection, and may proceed to enforce collection immediately, but interest shall not begin to accrue upon such contributions until the due date nor shall court costs be taxed against such employer or person liable under section 3 of this 2009 Act on any action to enforce collection commenced prior to the due date. The director or authorized representative may, in levying the assessment, demand a bond or deposit of such security as is necessary to [insure] ensure collection of the amount of such assessment. Written notice of the assessment to the employer or person liable under section 3 of this 2009 Act shall be mailed to the employer’s or person’s last-known address [of the employer] of record with the director.

(5) All assessments provided for in this section shall finally fix the amount of contributions due and payable unless the employer or person liable under section 3 of this 2009 Act shall within 20 days after the mailing of the notice of assessment apply to the director for a hearing, or unless the director or authorized representative on the motion of the director or authorized representative reviews the same prior to a decision of the administrative law judge thereon pursuant to hearing. An employer or person liable under section 3 of this 2009 Act who fails to apply for a hearing upon an assessment within the time provided or, having applied, fails to appear and be heard after due notice of such hearing, shall be precluded from raising any defense to any action, suit or proceeding brought by the director for the recovery of contributions based upon such assessment which could have been raised in the hearing. The amount of contributions so assessed under this section shall be subject to the penalties and interest provided by ORS 657.515 and 657.663.

SECTION 6. The amendments to ORS 657.044 by section 1 of this 2009 Act apply to elections of coverage by corporations occurring on or after January 1, 2010.

Approved by the Governor May 5, 2009

Filed in the office of Secretary of State May 5, 2009

Effective date January 1, 2010

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