STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DOUGLAS P. TICE, Employer
UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 282761, Hearing No. S9800138AP
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, except that it makes the following modifications:
Delete the two paragraphs under the heading "DIRECTION AND CONTROL" on page 8 of the decision, and substitute therefor the following:
Although Osen initially entered the loan solicitation business on an equal footing with Tice, that arrangement quickly changed when Tice was unhappy with the services Osen was performing. Consequently, Tice changed the agreement exercising more control over Osen until Tice finally discharged him. As such, Osen was not free from Tice's direction and control.
Delete the first paragraph on page 10 of the decision and substitute therefor the following:
In this case, no competent evidence was presented to establish that the movers met any of the above factors. On the contrary, evidence in the record tends to establish that the movers were not providing their services in connection with an independently established trade or business. Tice himself testified that the persons he hired as movers did not advertise a moving business and that they worked as employes somewhere else. Both of these factors are strong evidence that they did not engage in moving as an independently established trade or business.
Delete the paragraph on page 13 of the decision which begins with the words, "In summary", and substitute therefor the following:
In summary, Osen and Mills failed to meet seven of the eight factors in Section 108.02(12)(b)(2) of the Wisconsin Statutes and are statutory employes for the relevant period.
DECISION
The decision of the administrative law judge, as modified, is affirmed. Accordingly, Douglas Tice, d/b/a 1st Mortgage and Finance, is liable for payment of unemployment contributions as more particularly set forth in the determination.
Dated and mailed June 30, 1999
ticedou.smd : 110 : ER 451
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
Tice has asked that all penalties and interest be waived, stating he was the one who initiated the contacts with the department which led to the audit. However, the commission does not have the authority to do what Tice asks. Wis. Stat. § 108.22 (1), which provides for interest and tardy filing fees for late payment of contributions, provides no authority in anyone to waive the statutorily- prescribed interest, and it authorizes only the department to waive tardy filing fees, if it is satisfied that the tardy payment or report was late due to circumstances beyond the employer's control. Wis. Stat. § 108.22 (1)(d). Assuming for the sake of argument that the commission as well as the department could direct the waiver of tardy filing fees if it determined that the tardiness was for a reason beyond the employer's control, the commission would not be inclined to direct such a waiver, because the record does not establish that it was beyond Tice's control to have timely addressed the question of the status of the people working for him and to have made the necessary filings.
Tice argues that a department attorney would not allow him to have anybody from outside the State of Wisconsin be subpoenaed. The commission believes that what Tice is referring to, is the fact that the department's attorney mentioned at one point during the hearing that a witness who Tice apparently wanted to have testify could not be subpoenaed because he was a resident of Michigan. This is not a matter of the department (or the department's attorney) "not allowing" a witness. A Wisconsin subpoena cannot compel a person in another state to come here to testify. In addition, there is no reason to believe that the evidence which Tice may have wanted to elicit from such a witness would have made a material difference to the resolution of the issues presented.
Tice attached numerous documents to his petition for review, and stated in it that he was attaching documents he "would have liked to present at the court hearing but wasn't allowed to". However, the commission finds nothing in the synopsis of the hearing which indicates that Tice actually moved for the receipt as exhibits of any documents which were rejected by the administrative law judge. It does appear that at that point Tice mentioned something about some records he had, but the administrative law judge decided that they did not have sufficient probative value to warrant spending the hearing time necessary to go through them. Tice has not clearly explained in his petition for review how any documents which he was allegedly prevented from presenting, would have justified a different result. Review of the file does not persuade the commission that any documents therein would have resulted in an outcome different from that arrived at, which was based in large part on the uncontradicted evidence as to how Tice's business activities were conducted and how the persons providing services as part of Tice's business were dealt with. For those reasons, the commission is not persuaded that there was any sort of error involving the admission of documentary evidence which would warrant reversal or modification.
Based on a careful review of all of the evidence in this case, and after considering the arguments made by Tice in his petition for review, the commission is satisfied that the administrative law judge correctly resolved the issues presented in this case. It is undisputed that all of the persons at issue here performed services for Tice in connection with his operation of his loan soliciting business, and therefore Wis. Stat. § 108.02 (12(a) creates a presumption that they were employes of Tice, unless the evidence established that they met the tests necessary to overcome that presumption. The evidence as to those tests did not so establish; on the contrary, it tended to make it more clear that the persons were performing services as employes.
Furthermore, there is no basis for concluding that the persons at issue were performing their services as employes of 1st Mountain Mortgage Corporation of Michigan. For the reasons described in the decision in the companion case involving the question of Tice's status vis-…-vis 1st Mountain Mortgage Corporation (1), the commission is satisfied that Tice was operating an independent business, and that to the extent he received help and instruction (including help and instruction relative to the persons working under him) from the proprietor of 1st Mountain Mortgage Corporation, he was receiving it as an independent business entity benefiting from consulting services. Therefore, the relationship between 1st Mountain Mortgage Corporation, and the employes providing services to Tice in connection with Tice's business, was clearly not one of employment.
NOTE: The commission had no disagreement with the material findings of fact of the administrative law judge, and it has modified her decision only to better express the commission's understanding of the facts and rationale underlying the decision.
cc:
First Mountain Mortgage Corp
Attorney Peter Zeeh
Enforcements Section
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