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

VERNON OLSON & SONS INC, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 141522, Hearing No. S0200050EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, Vernon Olson & Sons, Inc. has no delinquent tax contribution liability.

Dated and mailed January 2, 2004
olsonve . ssd : 105 : 3  EE 405  PC 770

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION


The commission has affirmed the appeal tribunal decision in this case, for the following reasons. The evidence establishes that the employer had a corporate officer exclusion form appropriate for the time period in which the employer asserts it submitted it to the Department of Workforce Development. The form was filled out and, while the employer could not specifically remember sending the specific form in question to the department, he testified that it was employer's practice to do so. The employer's evidence overall was competent to establish that the employer in fact mailed the form.

At this point, there are two competing presumptions, and the outcome of the case depends upon which one is given greater effect. The administrative law judge gave greater weight to the statutory presumption that mail placed into the postal stream is properly delivered. The department asks that greater effect be given to the regularity of the department's administration (such that, absent finding a copy of the election in the department's files, the employer would not be deemed to have filed the election form). Given the documentary and other evidence the employer presented, the commission believes greater weight should be given to the statutory presumption of delivery of the election document. From this point, the election form is properly deemed filed with the department.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: 
Attorney Peter Zeeh
Gregory A. Frigo, Bureau of Legal Affairs, Madison, WI 53708


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uploaded 2004/01/05