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


JAMES R WINK, Claimant

HACKFORT VEAL FARM INC, Appellant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000599FL


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 claimant was an employe of the appellant in the applicable base period for benefit eligibility purposes.

Dated and mailed May 14, 1998
winkja.usd : 132 : 6  EE 410

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The appellant maintains in its petition, as it did at the hearing, that the claimant performed services for the appellant as an independent contractor and not as an employe. The appellant argues that the claimant has made it impossible for it to prove that the claimant files self-employment tax returns in 1996 or had a federal identification number. The appellant argues that the claimant did not need a FEIN since he had no other employes "other than his wife and children". The appellant further notes that the claimant was vague regarding the filing status of his 1996 return. However, the commission neither enacts law nor is vested with the authority to ignore the laws that have been enacted. The commission must apply the law as it is written.

In order to find that the claimant performed services for the appellant as an independent contractor it is the appellant's burden to establish either that the claimant holds or has applied for a federal identification number or filed business or self-employment income tax returns with the federal Internal Revenue Service in 1996. The appellant simply failed to establish either condition. While the commission appreciates the argument that the claimant has frustrated the appellant's ability to satisfy its burden by his vague responses regarding his tax returns, a mandatory condition must be met. The commission cannot infer that the claimant filed a self-employment tax return for 1996 based on the appellant's comparison of the tax liability of filing as an independent contractor verses an employe in 1997. The statute in fact requires that the claimant have filed business or self-employment returns in the prior year, or 1996. Thus, the comparison, even if it could form the basis for finding that the claimant filed business or self- employment tax returns, does not establish the benefits to the claimant of doing so based on 1996 income. Since the appellant has not satisfied one of the two mandatory factors contained in Wis. Stat. § 108.02(12)(b)1., it is irrelevant whether the claimant satisfied six or more of the conditions set forth in Wis. Stat. § 108.02(12)(b)2.

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

cc: Kurt K Hehling
Alberts & Heling CPAS LLC


Appealed to Circuit Court.  Affirmed February 9, 1999.

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