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

HULL & WILLIQUETTE LTD, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 273609, Hearing No. S0400090MD


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 appellant's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed December 30, 2004
hullwil . ssd : 115 : 4  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION


On November 25, 2003, the department issued a Proposed Audit Adjustment Report. The cover letter to this proposed report, which was addressed to the appellant, stated that, "You will receive an Initial Determination (ID) from the Department in six to eight weeks. The ID is the official notification of the audit results and it will contain your appeal rights." (emphasis in original)

The appellant's accountant responded to the department's proposed report by letter dated December 8, 2003.

The department determination at issue here was dated and mailed on December 15, 2003. This determination stated on its face the following:

This form is a determination of unemployment insurance taxes, interest, penalties and other special assessments, due or overpaid for only the periods listed below. This determination may be appealed within 21 days after the 'Date Mailed.' Appeal procedures and an explanation of 'Description Codes' are on the reverse side.

On its face, this determination also stated that the appeal period ended on January 5, 2004.

In a handwritten letter dated January 14, 2004, and received by the department's accounting unit on January 16, 2004, the appellant's accountant disputed two bills received from the department resulting from the findings of the audit. In this letter, the accountant referred the department to his letter of December 8, 2003.

In a letter dated March 4, 2004, the appellant's accountant stated, "This is a late appeal to the audit..."

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000).

It was certainly within the control of the appellant's shareholder who originally received the determination, and of the appellant's accountant to whom the determination was forwarded, to read the determination and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The appellant argues that the December 8, 2003, letter should suffice as an appeal to the determination. However, this letter was authored, sent, and received prior to the date that the determination was issued. As the commission noted in McVicar v. Accelerated Broadband, Inc., UI Hearing No. 02202143MD (LIRC Jan. 29, 2003), it is impossible to appeal a determination before it has been issued, and nothing submitted prior to the date of issue can be considered an appeal to the determination. This reasoning is even more persuasive here where the appellant was placed on notice in the department's November 25, 2003, correspondence that a department determination, which would be the official notification of the audit results and which would contain appeal instructions, would be issued in six to eight weeks.

The appellant addresses only the merits of the substantive issue in its petition, not the procedural issue before the commission.

cc:
Donald W Brown
Attorney Peter W Zeeh



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