BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DAVID B KNIPFEL, Employee

Involving the account of

BADGER CAB INCORPORATED, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93002367MD


Pursuant to the timely petition for review filed in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the appeal tribunal's findings of fact and conclusions of law are supported thereby. The commission therefore adopts the findings and conclusions of the appeal tribunal as its own.

DECISION

The decision of the appeal tribunal is affirmed. Accordingly, the employe's earnings through his affiliation with the employer are not chargeable for benefit purposes and benefits are denied from the employer's account based on the performance of this work. He is required to repay the sum of $305 to the Unemployment Reserve Fund.

Dated and mailed December 2, 1993
132 : CD8872  ET 483.01

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that his services for the employer were performed in employment excluded pursuant to sec. 108.02 (15) (k)18, Stats. In the petition for review, the employe argues that his lease payment was contingent upon income generated through the use of the taxicab. The employe sets forth four examples in an attempt to establish that the lease payment is contingent upon income. However, all examples advanced by the employe rest on the assumption that the more miles he drives the more fares he will obtain. While as a general proposition, the employe might be correct that the more miles driven and the more hours worked may result in a higher income and therefore a higher lease fee, it is not necessarily so. The fact remains that no matter how many miles the employe drives the taxicab nor how many hours he works, the lease payment does not depend upon whether he actually picks up any fares in those miles and hours. The other, arguments advanced by the employe have been previously advanced before the commission and rejected. See Deming v. Badger Cab, LIRC August 27, 1987; Rosine v. Badger Cab, Inc., LIRC, November 4, 1987; Jensen v. Badger Cab, Inc., LIRC January 6, 1989, affirmed, Jensen v. ILHR, Case No. 89-CV-0677 Dane County Circuit Court Branch 8, September 27, 1989.

For the above reasons, and reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc:
Jeff Meyers

Attorney Simon M Karter
Wendel & Center


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