STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


TODDLIZ INC.

SNEED & SNEED ENTERPRISES INC.,
WOLF CLEANERS & LAUNDERERS

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 527653 (Toddliz)  Account No. 204715 (Sneed)
Hearing Nos. S9800272MD and S9800276MD


This matter arises out of two Initial Determinations, one issued and mailed on April 28, 1994, and the other issued and mailed on September 6, 1995. The first Initial Determination determined that Toddliz, Inc. (Account No. 527653) was a mandatory total successor to Sneed & Sneed Enterprises, Inc./Wolf Cleaners and Launderers (Account No. 204715) for purposes of the Unemployment Compensation Act. The second Initial Determination determined that Toddliz, Inc. would be assessed for certain delinquent unemployment taxes of its predecessor, Sneed & Sneed Enterprises, Inc.

Pursuant to Wis. Stat. § 108.10 (1), the last days on which appeals from these Initial Determinations could be timely filed were May 19, 1994, and September 27, 1995, respectively. No appeals were filed by those dates, or thereafter, until October 7, 1998, when the Unemployment Insurance Division received a letter from Toddliz, Inc., which was treated as an appeal of both of the Initial Determinations.

Pursuant to Wis. Stat. § § 108.10 (2) and 108.09 (4)(c), hearing was noticed and held on May 19, 1999, before Administrative Law Judge James H. Moe, on the issues of whether the appeals were late for reasons beyond the control of Toddliz. Inc. (1)   On May 19, 1999, ALJ Moe issued two Appeal Tribunal Decisions which held that the appeals of Toddliz, Inc. in both matters had not been timely and that the failure of Toddliz, Inc. to have filed the appeals on a timely basis was not for reasons beyond the control of Toddliz, Inc. On that basis, ALJ Moe ordered the appeals dismissed.

Toddliz, Inc. filed timely petitions for LIRC review of ALJ Moe's decisions dismissing the appeals. On November 24, 1999, the commission issued a consolidated decision which set aside ALJ Moe's decisions and which remanded the matter to the Department of Workforce Development (DWD) for further hearing on the issues of whether the appeals were late for reasons beyond the control of Toddliz. Inc., and provisionally, on the merits of the underlying determinations. Further hearing was thereafter noticed and held before Administrative Law Judge Howard S. Lustig on October 19, 2000. The matter was thereafter returned to the commission.

The commission has considered the petition for review filed by Toddliz, Inc. and the positions reflected in written argument submitted by both Toddliz, Inc. and DWD, and it has reviewed the testimony and evidence presented at the hearings before ALJ Moe on May 19, 1999, and before ALJ Lustig on October 19, 2000, hearing.

Based on its review, the commission agrees with the decision of ALJ Moe, that the appeals of Toddliz, Inc. in these matters were not timely, and that the failure of Toddliz, Inc. to have filed the appeals on a timely basis was not for reasons beyond the control of Toddliz, Inc. The commission therefore makes the following:

ORDER

The Appeal Tribunal Decisions issued by ALJ Moe on May 19, 1999, in Hearing Numbers S9800272MD and S9800276MD, are reinstated. The commission adopts the findings and conclusion in the May 19, 1999, decisions of ALJ Moe as its own findings and conclusions in these matters. Accordingly, the requests for hearing on the merits are dismissed as untimely. No further hearing will be held concerning the issues raised by the appeals of Toddliz, Inc. The department's determinations of April 28, 1994, and September 6, 1995, shall remain in effect.

Dated and mailed February 23, 2001
toddliz.spr : 110 : PC 711

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission believes that the evidence clearly establishes, that the Initial Determinations in this case were mailed to Toddliz, Inc. at the time they were issued, and that they were received by Toddliz, Inc. The commission has held that the fact that an Initial Determination is contained in the department's file with a date indicating it was mailed, and the fact that the department's file does not reflect that the Initial Determination was returned to the department, adequately proves that the determination was mailed. Cline v. Initial Security (LIRC, May 10, 1999).  Because there is a presumption that mail properly addressed is received, the burden then falls on the addressee to prove that it did not receive the determination. Ibid. Thus, the burden was on Toddliz, Inc. to establish that it did not receive these Initial Determinations in due course after they were mailed to it on April 28, 1994, and September 6, 1995. Toddliz, Inc. failed to establish this.

At the hearing held before ALJ Moe in this matter, Thomas (Todd) Sneed, Jr., who was actively involved in operating Toddliz when both the first determination and the second determination were issued, did not deny that the determinations were received. His only explanation as to why the determinations were not timely acted upon was that "back then, we had a couple of office people who opened the mail and filed." While Sneed speculated that the determinations may have been confused with mail that came addressed to his father, Mr. Thomas Sneed, Sr., which was related to the bankruptcy of Sneed & Sneed, the corporation owned by his parents, Mr. Sneed Sr. did not testify and so that speculation remained unconfirmed.

At the second hearing in this matter, held before ALJ Lustig, Todd Sneed testified that he assumed that Toddliz received the April 28, 1994, Initial Determination, and he testified that he would have to say yes to the question of whether Toddliz received the September 6, 1995, Initial Determination. He disclaimed any problem with receipt of mail at that time. Elizabeth Sneed, Todd's sister and also a co-owner of Toddliz, who was the person who had responsibility for opening and dealing with mail at the time, testified that she did not recall receiving the April 28, 1994, Initial Determination, but that she had seen it in the file and that the address which was shown on it for Toddliz, Inc., was correct. She also acknowledged that the address which the September 6, 1995, Initial Determination showed for Toddliz, Inc., was correct.

Having carefully considered all of the evidence presented in this matter the commission is not merely satisfied that Toddliz, Inc. failed to prove that it did not receive the Initial Determinations; it is satisfied that the weight of the evidence established that it did receive them.

Each Initial Determination plainly stated on its face the time limits applicable to any attempt to appeal. However, there is no question, but that the appeals of the Initial Determinations here, were late -- years late.

Although it was given two opportunities to present evidence which would support a contention that the appeals in this matter were late for a reason beyond its control, Toddliz, Inc. has been unable to do so. Toddliz, Inc. has not offered evidence establishing any reason for its failure to timely appeal these Initial Determinations. The commission thus clearly cannot make any finding, that Toddliz, Inc. had a reason beyond its control for not having timely filed the appeals.

The applicable statutes provide, that if after a hearing on the reasons for an appeal being late, it is found that the failure to file the appeal timely was not for a reason beyond the appellant's control, a decision "shall" be issued dismissing the appeal. Wis. Stat. § § 108.09 (2r), 108.09 (4)(c). The commission is thus obliged by the law to dismiss the appeals. The Initial Determinations issued in this matter in 1994 and 1995 must therefore be considered final.

The outcome in this case is regrettable, but it is unavoidable. The commission understands and takes seriously the effect which these Initial Determinations have on Toddliz, Inc., but the commission must also take seriously the requirements of the Unemployment Insurance law concerning the timely filing of appeals of such determinations. These timeliness requirements are not mere "technicalities"; they are an essential part of the entire Unemployment Insurance system. The need for promptness in the determination of and collection of payroll tax liabilities, is as critical to that system as the need for promptness in the payment of benefits when they are due. Because of these needs, it is incumbent on parties who are adversely affect by determinations of the department to bring their appeals forward promptly, and it is fair and reasonable to impose consequences on parties who do not do so.

NOTE: Toddliz, Inc. has asked why Initial Determinations are not sent by way of certified mail. The commission cannot answer that question definitively because the procedures for mailing Initial Determinations are established by the department, not the commission. (2)  The commission would note, however, that in its experience, the use of certified mail can significantly delay an addressee's receipt of an item, because such items are not delivered if no one is available to sign for the item when delivery is attempted. The statutes do not provide for any extension of the period within which to appeal based on the type of mailing used in service. Therefore, use of certified mail could have the effect of significantly limiting a party's available time to appeal. It could be that this consideration is a factor in the department's choice of mailing methods.

cc: Attorney Michael J. Mathis
Bureau of Legal Affairs, DWD


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Footnotes:

(1)( Back ) Because there had been two underlying determinations, two hearing numbers were assigned. Hearing Number S9800272MD arises from the determination that Toddliz, Inc. was a total mandatory successor to the unemployment reserve account of Sneed & Sneed Enterprises, Inc., and Hearing Number S9800276MD arises from the determination assessing Toddliz, Inc. for the delinquent unemployment taxes of Sneed & Sneed Enterprises, Inc.

(2)( Back ) See, Wis. Stat. § 108.10 (5), which provides, "[t]he mailing of determinations and decisions provided in sub. (1) to (4) shall be first class, and may include the use of services performed by the postal department requiring the payment of extra fees".


uploaded 2001/02/26