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

STEVEN J IGNASIAK, Employee

SYLVIAS EAGLE XPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03609157MW


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, the employee's base period wages shall be limited to a maximum of ten times the weekly benefit rate based solely on employment by this employer.

Dated and mailed July 30, 2004
ignasst . usd : 132 : 1   VL 1054.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that found as of week 5 of 2003 he was employed by a corporation in which he owned one-fourth or more of the ownership interest, and that his employment was not terminated due to an involuntary cessation of business under Wis. Stat. § 108.04(1)(gm). The employee states that Wis. Stat. § 108.04(1)(gm), refers to dissolution of a corporation due to economic inviability, and "does not state filing dissolution with the Department of Financial Institutions." However, Wis. Stat. § 108.04(1)(gm), does not simply refer to "economic inviability," but to "dissolution of the corporation, due to economic inviability, under ch. 180." The corporation must be dissolved under ch. 180 due to economic inviability.

Wisconsin Statute § 108.04(1)(gm) applies only when the requirements of that section are met at the time the claimant files for unemployment insurance. Demrow v. Demrow Trucking Inc., UI Dec. Hearing No. 97002180MD (LIRC Sep. 25, 1997). At the time the employee began his benefit claim and his benefits were being computed, he had not dissolved the corporation under ch. 180 due to economic inviability. The employee may have made a valid business decision to follow the advice of his attorney and delay filing dissolution papers, but the fact that the employee was relying on the advice of an attorney does not change the outcome in this case. There may be a myriad of reasons to delay filing for corporate or personal bankruptcy, or disposing of assets, or dissolving a corporation under ch. 180. The question remains, however, whether one of the circumstances set forth in Wis. Stat. § 108.04(1)(gm), was met at the time the employee filed for unemployment insurance benefits. In this case, none of the circumstances in Wis. Stat. § 108.04(1)(gm) had occurred by the time the employee filed for benefits in week 5 of 2003. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.



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uploaded 2004/08/09