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


PEKAY SPECIALTY CONTRACTING, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 469683, Hearing No. S9700390AP


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, Pekay Specialty Contracting Incorporated is liable for unemployment contributions as more particularly set forth in the September 22, 1997 determination.

Dated and mailed August 31, 1998
pekaysp.ssd : 105 : 1  EE 408

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The issue in this case is whether Mr. Spetta performed services for the employer as an employe or as an independent contractor. In order for an individual to be considered an independent contractor, he or she must satisfy one of the two Wis. Stat. § 108.02(12)(b)1 requirements. He or she must either hold or have applied for an employer identification number with the Internal Revenue Service; or he or she must have filed business or self-employment tax returns with the Internal Revenue Service based on such services in the previous year. Mr. Spetta conceded that he had not applied for the employer identification number; nor did he present the necessary business or self-employment tax returns. This is a statutory field; the commission can only apply the statute the legislature has enacted. Since Mr. Spetta does not meet one of the necessary statutory requirements, the administrative law judge properly found that he performed services for the employer as an employe and not as an independent contractor.

The employer raised at hearing the issue of the Department of Workforce Development's treatment of Mr. Spetta when the latter filed a claim for unemployment insurance. According to the employer, the department found against Mr. Spetta on the ground that the latter was self-employed, and the employer asserts that the department now attempts to "have it both ways". On the "side" currently at issue, the tax side, the proceedings are under Wis. Stat. § 108.10. On the "benefit" side, proceedings are pursuant to Wis. Stat. § 108.09. Wisconsin Statutes 108.101(2) and (3) make completely separate the proceedings under the respective statutes. For this reason, it is possible that inconsistent results may obtain on the two sides of the unemployment benefit law. Further, the result in any given case is dependent upon the evidence brought to that particular hearing. For these reasons the employer's point, while potentially valid, yet must fail.

cc:
Attorney Michael Mathis
Enforcements Section


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