BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the contribution liability,
or status, under Chapter 108, Stats., of

MIDWEST SPEEDWAYS, INC., Acct. No. 054693-3 
MIDWEST BLEACHERS, INC., Acct. No. 079152-2
MIDWEST RACING NEWS, INC., Acct. No. 131161-9

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Hearing Nos. S900129-132MW


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 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 named employers are liable for delinquent contributions in the amounts stated in the Initial Determinations in this matter, or are owed contributions paid in the amounts stated on such Determinations.

Dated and mailed August 26, 1991
101 - CD1043  PC 770 PC 749

/s/ Kevin C. Potter, Chairperson

/s/ Pamela I. Anderson, Commissioner

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

In their petition for Commission review, the appellants challenge the Appeal Tribunal's finding that they are estopped from further litigating the "common paymaster" issue because the appellants failed to seek timely judicial review of a previous Commission decision on the issue. The appellants believe the finding is ludicrous. However, a party must file for judicial review of an adverse Commission decision within 30 days after the decision is mailed, sees. 102.23 (1) and108.09 (7)(a), Stats. The time period for filing a petition for judicial review of a Commission decision may only be extended only under exceptional circumstances not present here. See sec. 102.23 (1)(a), Stats. The appellants may see some distinction between the common paymaster issue previously decided in 1989 and the issue they now raise, but they did not clearly explain that distinction in their petition. The common paymaster issue has been fully litigated and is closed.

The appellants further imply that the Appeal Tribunal was overly deferential to the Initial Determination of the Department on the belief that the Department does not make mistakes. However, Appeal Tribunals do reverse a significant number of initial determinations made by the Department. The appellants also place significance on a letter from the Internal Revenue Service which generally states that two of the appellants "are in compliance with filing requirements."  The letter says nothing about the appellants' liability for unemployment compensation contributions under Chapter 108 of the Wisconsin Statutes. Liability for those contributions may not be waived on the basis of the letter the appellants attached to their petition.

Finally, the appellants question the Appeal Tribunal's finding that the Department auditor's calculations of the amount of contributions was reasonable. The Commission's review of the record indicates that the auditor estimated the contribution liability for all three appellants as permitted under sec. 108.21 (3), Stats. An estimation was required in this case because the appellants did not produce certain internal records that the auditor needed to make an exact determination of the three appellants' respective contribution liabilities. Although the Commission cannot guarantee revision, if the appellants provide accurate information which satisfies the auditor, the auditor would probably revise his determination as to contribution liability to reflect the accurate information.

 

NOTE: The appellants filed an appeal in Hearing No. S9000128 MW.  Because the Appeal Tribunal set aside the Department's Initial Determination associated with that hearing number (which was adverse to the appellants), the Commission does not deal with that hearing number on review.

 

cc:
Michael J. Mathis, Attorney
Gayle R. Dvorak, S.C.



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