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Title 6 Contributions

Section 570
Payment of contributions
Section 571
Assessment of amount of contributions
Section 572
Notice of liability
Section 573
Collection of contributions in case of default
Section 574
Priority of contributions in insolvency or bankruptcy
Section 575
Maintenance, audit, and report of remuneration and employment records
Section 575-a
Penalties relating to wage information
Section 576
Time limitations
Section 577
General account; subsidiary contribution
Section 578
Non-liability for penalty and interest
Section 581
Experience rating
Section 581-a
Rates of contributions to fund in emergency
Section 581-b
Contributions to the re-employment service fund
Section 581-c
Amnesty program
Section 581-d
Contributions to the interest assessment surcharge fund

Sec. 570. Payment of contributions.

1. Rate. Each employer liable under this article shall pay contributions on all wages paid by him at the rate of five and four-tenths per centum or, if applicable to the employer, at the rate provided by the provisions of sections five hundred seventy-seven and five hundred eighty-one. However, if contributions so established exceed five and four-tenths per centum of wages paid by him which are subject to the federal unemployment tax act, they shall be reduced by that part of such excess, if any, which is caused by the provisions of paragraph (b) of subdivision one of section five hundred eighteen.

Subd. I as amended by L. 1967, Ch. 280, effective April/ 18,1967; L. 1985, Ch. 7 effective March 19, 1985.

2. Time and method of payment. Contributions shall become payable by any employer for wages paid on and after the date on which he becomes liable under this article. All contributions from employers shall be paid at such times and in such manner as the commissioner may prescribe.

 

3. Default. An employer who fails to pay contributions required to be made by him to the fund shall pay interest at the rate of one per centum of the amount of such contributions for each month he is in default. Such interest shall be assessed, collected and paid as part of the payment required to be made by the employer to the fund.

Subd. 3 as renumbered and amended by L. 1953, Ch. 726 effective April/ 14, 1953; further amended by L.1981, Ch. 639 effective January 1, 1982.

4. Fraud. If any part of any deficiency is due to fraud with intent to avoid payment of contributions to the fund, fifty per centum of the total amount of the deficiency, in addition to such deficiency, shall be assessed, collected, and paid in the same manner as if it were a deficiency.

Subd. 4 as renumbered by L. 1953, Ch. 726, effective April 14, 1953.

5. Refunds and credits. If an employer shall make application for a refund of any contribution, interest, or penalty paid by him or for a credit thereof and the commissioner shall determine that such contribution, interest or penalty, or any portion thereof was erroneously collected, the commissioner shall refund said amount or allow a credit therefor. If said refund was created as a result of departmental error then the commissioner shall pay said refund with interest paid at the rate of three-fourths of one per centum of the amount of such contribution, interest and penalty for each month between the time of the erroneous collection and thirty days previous to the date of the refund check, as specified in this subdivision, unless the employer shall have already deducted said amount by way of credit against moneys payable by him into the fund. No refund or credit shall be allowed unless an application therefor shall be made on or before whichever of the following dates shall be the later: (a) one year from the date on which such payment was made; or (b) three years from the last day of the first month following the end of that calendar quarter during which the remuneration was paid which formed the basis for contributions, interest, or penalty claimed to have been erroneously collected. For a like cause and within the same period a refund may be so made or a credit allowed on the initiative of the commissioner. Any credit or refund of interest and penalties erroneously collected, any interest on such credit or refund, and any interest on contributions, interest and penalties erroneously collected, allowed by the commissioner under the foregoing conditions, shall be a charge against the special fund. Any credit or refund of contributions erroneously collected, allowed by the commissioner under the foregoing conditions, shall be a charge against the unemployment insurance fund.

Nothing contained in this subdivision shall require or permit the refund or credit of any contributions due and payable under article eighteen of this chapter as in effect at the time such contributions were paid.

Subd. 5 as amended by L. 1967, Ch. 250, effective April 10, 1967; further amended by L. 1985, Ch. 595 effective January 1, 1986.

6. Agreement to contributions by employees void. No agreement by an employee to pay any portion of the payment made by his employer for the purpose of providing benefits required by this article shall be valid and no employer shall make a deduction for such purpose from the remuneration of any employee.

Subd. 6 as renumbered by L. 1953, Ch. 726 effective April 14, 1953.

7. (a) In addition to amounts otherwise payable under this article, every employer liable for the payment of contributions shall pay contributions of three-tenths per centum on all wages paid by him during the calendar year nineteen hundred seventy-nine. Such contributions shall be credited to the employer's account pursuant to paragraph (d) of subdivision one of section five hundred eighty-one and shall be used only for the purpose set forth below in paragraphs (b) and (c) of this subdivision.

(b) If, on or before the tenth day of November, nineteen hundred seventy-nine, the commissioner determines that the outstanding balance of advances made to the state pursuant to title XII of the federal social security act can be repaid in full to the treasury of the United States for credit to the federal unemployment account in the federal unemployment trust fund, and that after such repayment the state will not require further title XII advances during the remainder of nineteen hundred seventy-nine, he shall cause such repayment to be made.

(c) On or before the first day of July, nineteen hundred seventy-nine, pursuant to 20 CFR 60l.5(f) the governor shall file with the secretary of labor an application for deferral of the tax credit reduction required by section 3302( c ) (2) of the federal unemployment tax act. If such deferral can be obtained by making the repayment to the treasury of the United States required by 20 CFR 60l.5(f)(2)(ii), the commissioner shall cause such repayment to be made. If such deferral cannot be so obtained, it shall be applied for pursuant to 20 CFR 60l.5(f)(2)(i) and, in such event, the amount of such additional contributions due by the thirty-first day of January, nineteen hundred eighty, by reason of paragraph (a) of this subdivision, shall be paid as soon as received to the treasury of the United States to reduce the balance of outstanding title XII advances.

Subd. 7as added by L. 1979, Ch. 353, effective January1, 1979.

Sec. 571. Assessment of contributions due.

If an employer fails to file a quarterly combined withholding, wage reporting and unemployment insurance return as required by paragraph four of subsection (a) of section six hundred seventy-four of the tax law for the purpose of determining the amount of contributions due or for the purpose of determining contribution rates under this article, or if such return when filed is incorrect or insufficient and the employer fails to file a corrected or sufficient return within thirty days after the commissioner requires the same by written notice, the commissioner shall determine the amount of contribution due from such employer and the amount of wages paid by such employer on the basis of such information as may be available and shall give written notice of such determination to the employer. Such determination shall finally and irrevocably fix the amount of contribution and the amount of wages paid for the purpose of computing contribution rates, unless the commissioner shall modify the amounts thereof, as provided under this article, subject, however, to the right to a hearing as hereinafter provided.

§571 as amended by L. 2000, Ch. 5, effective December 31, 2000.

Sec. 572. Notice of liability.

Any employer who has become liable for contributions shall notify the commissioner of such fact immediately and shall give information concerning his operations and persons employed by him.

§572 as amended by L. 1953, Ch. 726, effective April 14, 1953.

Sec. 573. Collection of contributions in case of default.

1. Civil actions. If an employer shall default in any payments required to be made by him to the fund, after due notice, the amount due from him shall be collected by civil action against him brought in the name of the commissioner, and the same, when collected, shall be paid into the fund. Such employer's compliance with the provisions of this article requiring payments to be made to the fund shall date from the time of the payment of said money so collected.

Civil actions brought in the name of the commissioner under this section to collect contributions, interest, or penalties from an employer shall be entitled to preference, conferred by law to actions brought by any state officer as such, upon the calendar of all courts.

2. Warrants. In addition and as an alternative to any other remedy provided by this article and provided that no appeal or other proceeding for review provided by title eight of this article shall then be pending and the time for the taking thereof shall have expired, the commissioner may issue a warrant under his official seal, directed to the sheriff of any county, commanding him to levy upon and sell the real and personal property which may be found within his county of an employer who has defaulted in the payment of any sum determined to be due from such employer for the payment of such sum together with interest, penalties, and the cost of executing the warrant, and to return such warrant to the commissioner and to pay into the fund the money collected by virtue thereof within sixty days after the receipt of such warrant. The sheriff shall within five days after the receipt of the warrant file with the clerk of his county a copy thereof, and thereupon such clerk shall enter in the judgment docket the name of the employer mentioned in the warrant and the amount of the contribution, interest, and penalties for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to and interest in real property and chattels real of the employer against whom the warrant is issued in the same manner as a judgment duly docketed in the office of such clerk. The sheriff shall then proceed upon the warrant in the same manner, and with like effect, as that provided by law in respect to executions issued against property upon judgments of a court of record, and for his services in executing the warrant he shall be entitled to the same fees, which he may collect in the same manner.

In the discretion of the commissioner a warrant of like terms, force, and effect may be issued and directed to any officer or employee of the department of labor who may file a copy of such warrant with the clerk of any county in the state, and thereupon each such clerk shall docket it and it shall become a lien in the same manner and with the same force and effect as herein before provided with respect to a warrant issued and directed to and filed by a sheriff; and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but he shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty.

If a warrant is returned not satisfied in full, the commissioner shall have the same remedies to enforce the amount thereof as if the commissioner had recovered judgment for the same.

 

Sec. 574. Insolvency or bankruptcy.

1. Priority of contributions. In the event of the dissolution, insolvency, composition, or assignment for benefit of creditors of any employer, contributions then and thereafter due from such employer under this article, together with any interest and penalties thereon, shall (1) be on a parity with taxes (other than real property taxes), together with any interest and penalties thereon, due the state of New York or any city thereof and (2) have priority over all other claims, except taxes due the United States and wages due for employment performed within the three months preceding such event. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension proposal, composition, or reorganization under the federal bankruptcy act, contributions then and thereafter due under this article, together with any interest and penalties thereon, shall be entitled to such priority as is provided in such act.

2. Discharge in bankruptcy. If the commissioner was given due notice or had knowledge of the bankruptcy proceedings, the payment of contributions due, together with interest and penalties thereon, which accrued on or before the date of the petition for bankruptcy and which remain unpaid upon the discharge of the employer in bankruptcy by a court of competent jurisdiction, shall not be enforced unless civil action or warrant proceedings are begun not later than two years after the date of such discharge and their total amount is two thousand dollars or more.

§574 as amended by L. 1967, Ch. 207 effective April 10, 1967.

Sec. 575. Maintenance, audit, and report of remuneration and employment records.

1.Requirements. Every employer shall keep a true and accurate record of each person employed by him, the name and social security account number, and the amount of remuneration paid to each, and such other records as are necessary under this article in the manner prescribed by regulations of the commissioner and shall furnish to the commissioner, upon demand, a sworn statement of the same. Such records, together with all other records reflecting or bearing upon them, shall be open to inspection at any time and as often as may be necessary to verify the number of employees, the periods of their employment, and the amount of their remuneration. Every employer shall report information from such records at such time and in such manner as the commissioner may by regulation prescribe. Any employer who shall violate any of the provisions of this section or who shall willfully falsify any record which he is required to maintain or who shall willfully file a false report shall be guilty of a misdemeanor.

Subd.1 as amended by L.1951, Ch. 645 effective June 4, 1951.

Subds. 2 and 3 repealed, L. 2003, Ch.413, effective August 26, 2003.

4. Collection and disposition of penalties. Any penalty pursuant to the provisions of this section shall be assessed, collected, and paid into the fund in the same manner as if it were a deficiency, in accordance with the provisions of this title.

Subd. 4 as renumbered by L. 1954, Ch. 639, effective April 12, 1954; formerly Subd. 5.

Sec. 575-a. Penalties relating to wage information.

In the case of a failure by an employer to provide complete and correct wage reporting information on a quarterly combined withholding, wage reporting and unemployment insurance return required by paragraph four of subsection (a) of section six hundred seventy-four of the tax law, such employer shall, unless it is shown to the commissioner’s satisfaction that there was good cause for such failure to comply, be liable as provided for in subdivisions one and two of this section.

1. When the non-compliance is discovered through an examination of an employer’s records, the employer shall be liable for a penalty in the following amount for each employee who is not included in the return or for whom the required information is not reported accurately:

(a) For the first failure for any calendar quarter in any eight consecutive calendar quarters, one dollar for each employee, not to exceed one thousand dollars;

(b) For the second failure for any calendar quarter in any eight consecutive calendar quarters, five dollars for each employee, not to exceed two thousand dollars;

(c) For any subsequent failure in any calendar quarter in any eight consecutive calendar quarters, twenty-five dollars for each employee, not to exceed five thousand dollars.

2. In those instances where a failure to comply is discovered in relation to a specific claimant’s claim for benefits, the penalty shall be twenty-five dollars for each such occurrence.

3. If such employer provides complete and correct wage reporting information within thirty days after the department sends notice of such failure to the employer, then the penalty provided for by subdivision one of this section shall be abated.

4. The penalties imposed and collected pursuant to this section shall be credited to the special fund established pursuant to section five hundred fifty-two of this article.

§575-a as added by L. 2000, Ch. 5, effective January 1, 2002.

Sec. 576. Time limitations.

1. Determinations of liability for contributions. No determination of liability for contributions pursuant to section five hundred sixty of this article shall be made more than three years after the last day of the calendar year in which the wages on which such liability is based were paid, except as provided in subdivision three of this section.

2. Determinations of amount of contributions. No determination pursuant to section five hundred seventy-one of this article of the amount of contributions due shall be made more than three years after the last day of the calendar year in which the wages on which such contributions are based were paid except as provided in subdivision three of this section.

3. Determinations of liability for and amount of contributions after contest. If an employer contests a determination of liability for contributions, a determination of liability for and the amount of contributions due for the contested period and subsequent periods may be made at any time prior to the latter of the following:

(a) three years after the last day of the calendar year in which the wages on which such contributions are based were paid; or

(b) two years after the last day of the calendar year in which such determination of liability for contributions became final and irrevocable.

Subd.1, 2, and 3 as amended by L.1966, Ch. 49 effective July 1, 1966. Subd. 1& 3 as amended by L. 2013, Ch 57 effective March 29, 2013.

4. Determinations of penalties. No determination of the amount of any penalty imposed for the failure of an employer to submit reports as required by section five hundred seventy-five of this article shall be made more than one year after the last day of the calendar year in which such reports were due.

5. Enforcement of payment of contributions. Payment of contributions due on the basis of wages reported by the employer, and payment of contributions due on the basis of a determination made pursuant to section five hundred seventy-one of this article within the time limit provided in subdivisions two and three of this section may be enforced by civil action or through warrant proceedings only if such action is begun or such warrant is filed within two years after the last day of the calendar year in which such report was received by the commissioner or in which such determination became final and irrevocable.

6. Enforcement of payment of penalties. Payment of penalties may be enforced by civil action or through warrant proceedings only if such action is begun or such warrant is filed within two years after the last day of the calendar year in which the determination of the amount of the penalty became final and irrevocable.

7. Enforcement of payment after extension agreement. If a deferred payment agreement has been entered into by the employer the payment which is the subject of the agreement may be enforced by civil action or through warrant proceedings if such action is begun or such warrant is filed within two years after the last day of the calendar year in which the final payment was due pursuant to such agreement.

8. Fraud. The provisions of this section shall not apply if the employer, with intent to defraud, fails to file prescribed contribution reports or files false reports.

9. Date of determination. For the purpose of this section no determination shall be deemed to have been made until the date upon which notice of such determination is mailed or delivered personally to the employer affected thereby.

§576 as amended by L.1952, Ch. 486 effective July 1, 1952.

Sec. 577. General account; subsidiary contribution.

1. General account. The general account within the fund shall be continued.

(a) This account shall be credited with

(1) all net earnings on moneys in the fund,

(2) moneys credited to this state pursuant to section nine hundred three of the federal social security act,

(3) account balances of employers who have ceased to be liable for contributions under this article and whose accounts are not subject to transfer in accordance with provisions of section five hundred eighty-one, subdivision four covering transfers of accounts,

(4) the proceeds of subsidiary contributions,

(5) all moneys improperly paid to claimants and recovered,

(6) contributions which are paid into the fund more than sixty days after the due date prescribed by regulation of the commissioner, excepting only contributions paid after such sixty days but prior to determination and demand by the commissioner, and

(7) benefits based on wages paid in another state and charged to an employer's account as provided in subdivision five of section five hundred eighty-one.

(8) monies pursuant to section five hundred eighty-one-b of this title.

Subparagraph (8) as added by L. 2000, Ch. 5, effective February 15, 2000.

(9) monies pursuant to section five hundred ninety-four of this article.

Subparagraph (9) as added by L. 2013, Ch. 57, effective October 1, 2013.

(b) This account shall be debited with

(1) moneys used by the commissioner upon an appropriation duly made by the legislature for the administration of the unemployment insurance law as provided in section five hundred fifty, subdivision three,

(2) refunds of subsidiary contributions,

(3) the amounts of negative balances of employers' accounts, as provided in section five hundred eighty-one, subdivision one, paragraph (e),

(4) all moneys paid to claimants which should not have been charged or are not chargeable to any employer's account;

(5) balances set up as provided in subdivision five of section five hundred eighty-one; and

(6) all moneys paid to claimants by reason of the application of paragraph (a) of subdivision twelve of section five hundred ninety of this article which are not reimbursed to the fund by the federal government.

Subparagraph (6) repealed by L. 1971, Ch. 2 effective January 12, 1971. New subparagraph (6) added by L. 1977, Ch. 675 effective January 1, 1978 and as amended by L. 1978, Ch. 254 Effective January 2, 1978. Subd. 1 as amended by L. 1963, Ch. 630 effective April 23, 1963

2. Subsidiary contributions. (i) Employers shall pay a subsidiary contribution based on their rate as specified in the subsidiary contribution schedule as applied to wages paid in the four calendar quarters immediately subsequent to the computation date. The rate of each employer's subsidiary contribution shall be the percentage shown in the column headed by the general account balance as of the computation date and on the same line designating the range of employer account percentages in which an individual employer's account is found. The subsidiary rate for employers who have not been liable for contributions during at least the five completed calendar quarters ending on the computation date shall be the highest percentage for those employers with a positive employer's account percentage.Such subsidiary contribution shall be paid in addition to any other amounts otherwise payable under this article, and shall be assessed and collected in the same manner as the contributions prescribed by section five hundred seventy of this title.The proceeds of the subsidiary contribution shall be deposited in the fund and credited to the general account. (ii) The terms "employer account percentage", "computation date" and "wages" shall have the meaning prescribed pursuant to article eighteen of this chapter.

Employer's Account Percentage

General Account Balance (in millions of dollars)

Less than $0

$0 or more but less than $75

$75 or more but less than $150

$150 or more but less than $225

$225 or more but less than $300

$300 or more but less than $375

$375 or more but less than $450

$450 or more but less than $525

$525 or more but less than $600

$600 or more but less than $650

$650 or more

Less than 0.0% (Negative)

.925%

.825%

.725%

.625%

.525%

.425%

.325%

.225%

.125%

.025%

.000%

0.0% or more but less than 5.5%

.625%

.625%

.625%

.525%

.425%

.325%

.225%

.125%

.025%

.000%

.000%

5.5% or more but less than 7.5%

.625%

.625%

.525%

.425%

.325%

.225%

.125%

.025%

.000%

.000%

.000%

7.5% or more but less than 9%

.625%

.525%

.425%

.325%

.225%

.125%

.025%

.000%

.000%

.000%

.000%

9% or more

.525%

.425%

.325%

.225%

.125%

.025%

.000%

.000%

.000%

.000%

.000%

Subd. 2 as amended by L. 1971, Ch. 48, retroactively effective December 31, 1970; amended by adding paragraph (b) by L. 1989 Ch. 38 effective April 13, 1989. Subd. 2 repealed by L.1998 Ch. 589, effective January 1, 1999 and new Subd. 2 added by L. 1998, Ch. 589, effective January 1,1999. Subd. 2 amended by L. 2003, Ch. 413, effective August 26, 2003.

Sec. 578. Non-liability for penalty and interest.

1. Conditions. The provisions of this section shall apply to employers who failed to discharge obligations under this title because of the bona fide belief that all or some of their employees are covered under the unemployment insurance laws of other states or of the United States, provided they paid pursuant to such laws the contributions required thereunder on all wages of all such employees.

2. Extent. Failure to pay contributions under this title with respect to such employees shall not render any such employer liable for interest provided such contributions are paid within ninety days following the date on which a determination or decision establishing the employer's liability therefor has become final. If such contributions are not paid within ninety days following such date, interest shall be assessed only from such date to the date of payment.

Subd. 2 as amended by L. 1954, Ch. 639 effective April 12, 1954. §579 and 580 repealed by L. 1977, Ch. 675 effective January 1, 1978.

Sec. 581. Experience rating.

1. Meaning of terms. As used in this section:

(a) "Computation date" means December thirty-first of any year.

(b) "Payroll year" means the period beginning on October first of a year and ending on September thirtieth of the next following year.

(c) "Qualified employer" means any employer whose account reflects his or her experience with respect to unemployment throughout not less than the four consecutive completed calendar quarters ending on the computation date and who has paid some remuneration in the payroll year preceding the computation date and filed all contribution returns prescribed by the commissioner for the three payroll years preceding the computation date on or before such date, or has had an amount of contributions due and/or an amount of wages paid determined by the commissioner pursuant to section five hundred seventy-one of this article. If an employer has ceased to be liable for contributions and the employer’s account balance is not subject to transfer under the provisions of subdivision four of this section, such account balance shall be transferred to the general account on the computation date coinciding with or immediately following the date on which the employer’s liability ceased and shall not thereafter be available to such employer in the event that the employer again becomes liable for contributions.

Paragraph (c) as amended by L. 2000, Ch. 5, effective December 31, 2000.

(d) "Employer's account" (1) means an account in the fund reflecting an employer's experience with respect to contribution payments and experience rating charges under this article. The commissioner shall maintain such an account for every employer liable for contributions under this article; but nothing in this article shall be construed to grant any employer or any of his employees prior claims or rights to the amount paid by him into the fund and credited to his employer's account, or to any other account, including the general account, either on his own behalf or on behalf of his employees. All moneys in such fund, from whatever source derived and to whatever account credited, shall be pooled and available to pay benefits to any individual entitled thereto under this article.

(2) Any contributions due but not paid within sixty days of the due date prescribed by regulation of the commissioner shall, when paid, not be credited to an employer's account, but shall be credited to the general account, unless such payment was made prior to determination and demand by the commissioner pursuant to section five hundred seventy-one of this article.

(3) Payments in lieu of contributions equal to benefits charged in the last three months of a calendar year shall be credited to the employer's account as of the computation date occurring in that year if paid within the time prescribed by the commissioner.

(4) Any employer may at any time make payments to his account in the fund in excess of the requirements of this article. Such payments made during the period from April first through March thirty-first of the following year shall be credited to the employer's account as of the computation date occurring within such period.

(5) For the purpose of determining the size of fund index, all payments in lieu of contributions and voluntary, excess contribution payments made by employers shall be included in the fund balance on the computation date next following the date of payments. Such excess contributions shall be irrevocable and not subject to refund or credit after acceptance by the commissioner and deposit in the fund.

Paragraph (d) as amended by L. 1971, Ch. 1027, effective January 1, 1971,

L. 1993, Ch. 226, effective July 6, 1993, and further amended by L. 1998, Ch. 589, effective April 1, 1999.

(e) "Experience rating charge" means a debit to an employer's account reflecting a payment of benefits.

(1) Whenever benefits are paid to a claimant, experience rating charges shall be debited to the appropriate account. The commissioner shall notify each employer not more frequently than monthly as to each experience rating charge which is being made to the employer's account. Such notice shall be a determination of the propriety of such charge and of the payment of benefits on which such charge was based.

(2) Benefits payable to any claimant with respect to the claimant's then current benefit year shall be charged, when paid, to the account of the last employer prior to the filing of a valid original claim in an amount equal to seven times the claimant's benefit rate. Thereafter, such charges shall be made to the account of each employer in the base period used to establish the valid original claim in the same proportion that the remuneration paid by each employer to the claimant during that base period bears to the remuneration paid by all employers to the claimant during that base period except as provided below:

(i) In those instances where the claimant may not utilize wages paid to establish entitlement based upon subdivision ten of section five hundred ninety of this article and an educational institution is the claimant's last employer prior to the filing of the claim for benefits, or the claimant performed services in such educational institution in such capacity while employed by an educational service agency which is the claimant's last employer prior to the filing of the claim for benefits, such employer shall not be liable for benefit charges for the first twenty-eight effective days of benefits paid as otherwise provided by this section. Under such circumstances, benefits paid shall be charged to the general account. In addition, wages paid during the base period by such educational institutions, or for services in such educational institutions for claimants employed by an educational service agency shall not be considered base period wages during periods that such wages may not be used to gain entitlement to benefits pursuant to subdivision ten of section five hundred ninety of this article.

(ii) In those instances where the claimant may not utilize wages paid to establish entitlement based upon subdivision eleven of section five hundred ninety of this article and an educational institution is the claimant's last employer prior to the filing of the claim for benefits, or the claimant performed services in such educational institution in such capacity while employed by an educational service agency which is the claimant's last employer prior to the filing of the claim for benefits, such employer shall not be liable for benefit charges for the first twenty-eight effective days of benefits paid as otherwise provided by this section. Under such circumstances, benefits paid will be charged to the general account. In addition, wages paid during the base period by such educational institutions, or for services in such educational institutions for claimants employed by an educational service agency shall not be considered base period wages during periods that such wages may not be used to gain entitlement to benefits pursuant to subdivision eleven of section five hundred ninety of this article. However, in those instances where a claimant was not afforded an opportunity to perform services for the educational institution for the next academic year or term after reasonable assurance was provided, such employer shall be liable for benefit charges as provided for in this paragraph for any retroactive payments made to the claimant.

(iii) In those instances where the federal government is the claimant's last employer prior to the filing of the claim for benefits and such employer is not a base-period employer, payments equaling the first twenty-eight effective days of benefits as otherwise prescribed by this section shall be charged to the general account. In those instances where the federal government is the claimant's last employer prior to the filing of the claim for benefits and a base-period employer, such employer shall be liable for charges for all benefits paid on such claim in the same proportion that the remuneration paid by such employer during the base period bears to the remuneration paid by all employers during the base period. In addition, benefit payment charges for the first twenty-eight effective days of benefits other than those chargeable to the federal government as prescribed above shall be made to the general account

(iv) In those instances where a combined wage claim is filed pursuant to interstate reciprocal agreements and the claimant's last employer prior to the filing of the claim is an out-of-state employer and such employer is not a base-period employer, benefit payments equaling the first twenty-eight effective days of benefits as otherwise prescribed by this section shall be charged to the general account. In those instances where the out-of-state employer is the last employer prior to the filing of the claim for benefits and a base-period employer such employer shall be liable for charges for all benefits paid on such claim in the same proportion that the remuneration paid by such employer during the base period bears to the remuneration paid by all employers during the base period. In addition, benefit payment charges for the twenty-eight effective days of benefits other than those chargeable to the out-of-state employer as prescribed above shall be made to the general account.

(v) In those instances where the last employer prior to the filing of a valid original claim has paid total remuneration to the claimant during the period from the start of the base period used to establish the benefit claim until the date of the claimant's filing of the valid original claim in an amount less than or equal to six times the claimant's benefit rateand the last employer has substantiated such amount to the satisfaction of the commissioner within ten days of the commissioner's original notice of potential charges to such last employer's account, benefits shall be charged as follows:  benefits payable to the claimant with respect to the claimant's then current benefit year shall be charged, when paid, to the account of such last employer prior to the filing of a valid original claim in an amount equal to the lowest whole number (one, two, three, four, five, or six) times the claimant's benefit rate where the product of such lowest whole number times the claimant's benefit rate is equal to or greater than such total remuneration paid by such last employer to the claimant.  Thereafter, such charges shall be made to the account of each employer in the base period used to establish the valid original claim in the same proportion that the remuneration paid by each employer to the claimant during that base period bears to the remuneration paid by all employers to the claimant during that base period.  Notice of such recalculation of potential charges shall be given to the last employer and each employer of the claimant in the base period used to establish the valid original claim. 

(3) An employer's account shall not be charged, and the charges shall instead be made to the general account, for benefits paid to a claimant after the expiration of a period of disqualification from benefits following a final determination that the claimant lost employment with the employer through misconduct or voluntary separation of employment without good cause within the meaning of section five hundred ninety-three of this article and the charges are attributable to remuneration paid during the claimant's base period of employment with such employer prior to the claimant's loss of employment with such employer through misconduct or voluntary separation of employment without good cause, provided, however, that an employer shall not be relieved of charges pursuant to this subparagraph if an employer or its agent fails to submit information resulting in an overpayment pursuant to section five hundred ninety-seven of this article. 

(4) An employer's account shall not be charged, and the charges shall instead be made to the general account, for benefits paid to a claimant based on base period employment while the claimant was an inmate of a correctional institution and enrolled in a work release program, provided that the employment was terminated solely because the inmate was required to relocate to another area as a condition of parole or the inmate voluntarily relocated to another area immediately upon being released or paroled from such correctional institution.

(5) If an employer who employed the claimant in the four weeks immediately preceding the filing of a valid original claim demonstrates that the employer has continuously employed the claimant without significant interruption and substantially to the same extent and in the same manner as during the weeks immediately preceding the filing of a valid original claim in which the claimant was employed by such employer, the account of such employer shall not be charged with benefits paid to such claimant for any weeks of such continuing employment, and such experience rating charges shall be made to the general account. The provisions set forth in the foregoing sentence shall apply with respect to an employer liable for payments in lieu of contributions, but if the secretary of labor of the United States finds that their application to such employer does not meet the requirements of the federal unemployment tax act, such provisions shall not thereafter apply to such employer, unless and until such finding has been set aside pursuant to a final decision issued in accordance with such judicial review proceedings as may be instituted and completed under the provisions of section thirty-three hundred ten of the federal unemployment tax act.

(6) An employer's account shall not be debited to the extent that the federal government reimburses the fund for benefits paid.

If on any computation date an employer's account registers a negative balance, an amount equivalent to the excess of the negative balance over twenty-one per centum of the employer's payroll in the payroll year preceding such date shall be transferred as a charge to the general account, except that this provision shall not apply to any negative balance, or that portion thereof, which results from benefits charged with respect to which the employer is liable for payments in lieu of contributions.

Paragraph (e) as amended by L. 1971, Ch. 1027, effective January 1, 1971; the third undesignated paragraph of paragraph (e) as amended by L. 1977, Ch. 675, effective January 1, 1978, and further mended by L. 1998, Ch. 589, effective January 1, 1999.

Second undesignated paragraph of paragraph (e) Subd (1), as amended by L. 1963, Ch. 720, effective July 1, 1963; L. 1991, Ch. 241, effective July 1, 1991; L. 1994, Ch.164andCh.165, effective June 7, 1994, and further amended by L. 1998, Ch. 589, effective April 1, 1999.

Paragraph (e) as amended by L. 2007, Ch. 106, effective January 1, 2009.

Paragraph (3) as amended by L. 2013, Ch. 57, effective October 1, 2013.

(f) "Employer's account percentage" means the status of an employer's account on any computation date. It is the balance remaining in the account, after contributions have been credited and experience rating charges have been debited to it, stated as percentage of his average payroll for the last five payroll years preceding the computation date or for all quarters if the employer has been liable for contributions for fewer than twenty-one quarters. Such percentage shall be computed to two decimal places and the remaining fraction if any, disregarded. If, however, the number of consecutive completed calendar quarters ending on the computation date during which the employer has been liable for contributions hereunder is twenty-one or less the employer's account percentage, if it is positive, shall be multiplied by that figure assigned to the employer designated as "employer's benefit equalization factor" which is listed below on the same horizontal line on which the number of quarters of employer liability appears, and the product resulting therefrom shall constitute the employer's account percentage.

Number of quarters of employer liability

Employer's benefit equalization factor

5

3.00

6

2.50

7

2.05

8

1.75

9

1.55

10

1.40

11

1.25

12

1.12

13

1.04

14 through 21

1.00

Paragraph (f) as amended by L. 1971, Ch. 565 and Ch. 566, effective December 31, 1972; and L. 1986, Ch. 522, effective December 31, 1986, and further amended by L. 1998, Ch. 589, effective January 1, 1999.

(g) "Size of fund index" means the lesser of the following two percentages: (1) the percentage obtained by dividing the moneys in the fund as of a computation date by the total of all payrolls for the payroll year preceding such date; or (2) the percentage obtained by dividing such moneys by the average of the totals of all payrolls for the five consecutive payroll years preceding such date. Such percentage shall be computed to one decimal place and the remaining fraction, if any, disregarded.

Paragraph (g) as amended by L. 1998, Ch. 589, effective January 1, 1999.

(h) "Payroll" means all wages paid by an employer to his employees.

Subd. 1 as amended by L. 1963, Ch. 630 effective April 23, 1963.

2. Rates of contribution. (a) Each qualified employer's rate of contribution shall be the percentage shown in the column headed by the size of the fund index as of the computation date and on the same line with his or her negative or positive employer's account percentage, except that if within the three payroll years preceding the computation date any part of a negative balance has been transferred from any employer's account as a charge to the general account pursuant to the provisions of paragraph (e) of subdivision one of this section such employer's rate of contribution shall be the maximum contribution rate as shown in the column headed by the size of fund index;

Employer's NEGATIVE
Account Percentage

Size of Fund Index

Less than 0%

0% but less than 0.5%

0.5% but less than 1.0%

1.0% but less than 1.5%

1.5% but less than 2.0%

2.0% but less than 2.5%

2.5% but less than 3.0%

3.0% but less than 3.5%

3.5% but less than 4.0%

4.0% but less than 4.5%

4.5% but less than 5.0%

5.0% or more

21.0% or more

8.9

8.7

8.5

8.3

8.1

7.3

6.9

6.5

6.2

6.1

6.0

5.9

20.5% or more but less than 21.0%

8.8

8.6

8.4

8.2

8.0

7.2

6.8

6.4

6.1

6.0

5.9

5.8

20.0% or more but less than 20.5%

8.7

8.5

8.3

8.1

7.9

7.1

6.7

6.3

6.0

5.9

5.8

5.7

19.5% or more but less than 20.0%

8.6

8.4

8.2

8.0

7.8

7.0

6.6

6.2

5.9

5.8

5.7

5.6

19.0% or more but less than 19.5%

8.5

8.3

8.1

7.9

7.7

6.9

6.5

6.1

5.8

5.7

5.6

5.5

18.5% or more but less than 19.0%

8.4

8.2

8.0

7.8

7.6

6.8

6.4

6.0

5.7

5.6

5.5

5.4

18.0% or more but less than 18.5%

8.3

8.1

7.9

7.7

7.5

6.7

6.3

5.9

5.6

5.5

5.4

5.3

17.5% or more but less than 18.0%

8.2

8.0

7.8

7.6

7.4

6.6

6.2

5.8

5.5

5.4

5.3

5.2

17.0% or more but less than 17.5%

8.1

7.9

7.7

7.5

7.3

6.5

6.1

5.7

5.4

5.3

5.2

5.1

16.5% or more but less than 17.0%

8.0

7.8

7.6

7.4

7.2

6.4

6.0

5.6

5.3

5.2

5.1

5.0

16.0% or more but less than 16.5%

7.9

7.7

7.5

7.3

7.1

6.3

5.9

5.5

5.2

5.1

5.0

4.9

15.5% or more but less than 16.0%

7.8

7.6

7.4

7.2

7.0

6.2

5.8

5.4

5.1

5.0

4.9

4.8

15.0% or more but less than 15.5%

7.7

7.5

7.3

7.1

6.9

6.1

5.7

5.3

5.0

4.9

4.8

4.7

14.5% or more but less than 15.0%

7.6

7.4

7.2

7.0

6.8

6.0

5.6

5.2

4.9

4.8

4.7

4.6

14.0% or more but less than 14.5%

7.5

7.3

7.1

6.9

6.7

5.9

5.5

5.1

4.8

4.7

4.6

4.5

13.5% or more but less than 14.0%

7.4

7.2

7.0

6.8

6.6

5.8

5.4

5.0

4.7

4.6

4.5

4.4

13.0% or more but less than 13.5%

7.3

7.1

6.9

6.7

6.5

5.7

5.3

4.9

4.6

4.5

4.4

4.3

12.5% or more but less than 13.0%

7.2

7.0

6.8

6.6

6.4

5.6

5.2

4.8

4.5

4.4

4.3

4.2

12.0% or more but less than 12.5%

7.1

6.9

6.7

6.5

6.3

5.5

5.1

4.7

4.4

4.3

4.2

4.1

11.5% or more but less than 12.0%

7.0

6.8

6.6

6.4

6.2

5.4

5.0

4.6

4.3

4.2

4.1

4.0

11.0% or more but less than 11.5%

6.9

6.7

6.5

6.3

6.1

5.3

4.9

4.5

4.2

4.1

4.0

3.9

10.5% or more but less than 11.0%

6.8

6.6

6.4

6.2

6.0

5.2

4.8

4.4

4.1

4.0

3.9

3.8

10.0% or more but less than 10.5%

6.7

6.5

6.3

6.1

5.9

5.1

4.7

4.3

4.0

3.9

3.8

3.7

9.5% or more but less than 10.0%

6.6

6.4

6.2

6.0

5.8

5.0

4.6

4.2

3.9

3.8

3.7

3.6

9.0% or more but less than 9.5%

6.5

6.3

6.1

5.9

5.7

4.9

4.5

4.1

3.8

3.7

3.6

3.5

8.5% or more but less than 9.0%

6.4

6.2

6.0

5.8

5.6

4.8

4.4

4.0

3.7

3.6

3.5

3.4

8.0% or more but less than 8.5%

6.3

6.1

5.9

5.7

5.5

4.7

4.3

3.9

3.6

3.5

3.4

3.3

7.0% or more but less than 8.0%

6.2

6.0

5.8

5.6

5.4

4.6

4.2

3.8

3.5

3.4

3.3

3.2

6.0% or more but less than 7.0%

6.1

5.9

5.7

5.5

5.3

4.5

4.1

3.7

3.4

3.3

3.2

3.1

5.0% or more but less than 6.0%

6.0

5.8

5.6

5.4

5.2

4.4

4.0

3.6

3.3

3.2

3.1

3.0

4.0% or more but less than 5.0%

5.9

5.7

5.5

5.3

5.1

4.3

3.9

3.5

3.2

3.1

3.0

2.9

3.0% or more but less than 4.0%

5.6

5.4

5.2

5.0

4.8

4.2

3.8

3.4

3.1

3.0

2.9

2.8

2.0% or more but less than 3.0%

5.5

5.3

5.1

4.9

4.7

4.1

3.7

3.3

3.0

2.9

2.8

2.7

1.0% or more but less than 2.0%

5.4

5.2

5.0

4.8

4.6

4.0

3.6

3.2

2.9

2.8

2.7

2.6

Less than 1.0%

5.2

5.0

4.8

4.6

4.4

3.8

3.4

3.0

2.7

2.6

2.5

2.4

Employer's POSITIVE
Account Percentage

Size of Fund Index

Less than 0%

0% but less than 0.5%

0.5% but less than 1.0%

1.0% but less than 1.5%

1.5% but less than 2.0%

2.0% but less than 2.5%

2.5% but less than 3.0%

3.0% but less than 3.5%

3.5% but less than 4.0%

4.0% but less than 4.5%

4.5% but less than 5.0%

5.0% or more

Less than 1.0%

4.1

3.9

3.7

3.5

3.3

2.9

2.5

2.1

1.9

1.8

1.7

1.6

1.0% or more but less than 2.0%

4.0

3.8

3.6

3.4

3.2

2.8

2.4

2.0

1.8

1.7

1.6

1.5

2.0% or more but less than 3.0%

3.9

3.7

3.5

3.3

3.1

2.7

2.3

1.9

1.7

1.6

1.5

1.4

3.0% or more but less than 4.0%

3.8

3.6

3.4

3.2

3.0

2.6

2.2

1.8

1.6

1.5

1.4

1.3

4.0% or more but less than 5.0%

3.7

3.5

3.3

3.1

2.9

2.5

2.1

1.7

1.5

1.4

1.3

1.2

5.0% or more but less than 5.5%

3.6

3.4

3.2

3.0

2.8

2.4

2.0

1.6

1.4

1.3

1.2

1.1

5.5% or more but less than 5.75%

3.5

3.3

3.1

2.9

2.7

2.3

1.9

1.5

1.3

1.2

1.1

1.0

5.75% or more but less than 6.0%

3.4

3.2

3.0

2.8

2.6

2.2

1.8

1.4

1.2

1.1

1.0

0.9

6.0% or more but less than 6.25%

3.3

3.1

2.9

2.7

2.5

2.1

1.7

1.3

1.1

1.0

0.9

0.8

6.25% or more but less than 6.5%

3.2

3.0

2.8

2.6

2.4

2.0

1.6

1.2

1.0

0.9

0.8

0.7

6.5% or more but less than 6.75%

3.1

2.9

2.7

2.5

2.3

1.9

1.5

1.1

0.9

0.8

0.7

0.6

6.75% or more but less than 7.0%

3.0

2.8

2.6

2.4

2.2

1.8

1.4

1.0

0.8

0.7

0.6

0.5

7.0% or more but less than 7.25%

2.9

2.7

2.5

2.3

2.1

1.7

1.3

0.9

0.7

0.6

0.5

0.4

7.25% or more but less than 7.5%

2.8

2.6

2.4

2.2

2.0

1.6

1.2

0.8

0.6

0.5

0.4

0.3

7.5% or more but less than 7.75%

2.7

2.5

2.3

2.1

1.9

1.5

1.1

0.7

0.5

0.4

0.3

0.2

7.75% or more but less than 8.0%

2.6

2.4

2.2

2.0

1.8

1.4

1.0

0.6

0.4

0.3

0.2

0.1

8.0% or more but less than 8.25%

2.5

2.3

2.1

1.9

1.7

1.3

0.9

0.5

0.3

0.2

0.1

0.0

8.25% or more but less than 8.5%

2.4

2.2

2.0

1.8

1.6

1.2

0.8

0.4

0.2

0.1

0.0

0.0

8.5% or more but less than 8.75%

2.3

2.1

1.9

1.7

1.5

1.1

0.7

0.3

0.1

0.0

0.0

0.0

8.75% or more but less than 9.0%

2.2

2.0

1.8

1.6

1.4

1.0

0.6

0.2

0.0

0.0

0.0

0.0

9.0% or more but less than 9.25%

2.1

1.9

1.7

1.5

1.3

0.9

0.5

0.1

0.0

0.0

0.0

0.0

9.25% or more but less than 9.5%

2.0

1.8

1.6

1.4

1.2

0.8

0.4

0.0

0.0

0.0

0.0

0.0

9.5% or more but less than 9.75%

1.9

1.7

1.5

1.3

1.1

0.7

0.3

0.0

0.0

0.0

0.0

0.0

9.75% or more but less than 10.0%

1.8

1.6

1.4

1.2

1.0

0.6

0.2

0.0

0.0

0.0

0.0

0.0

10.0% or more but less than 10.25%

1.7

1.5

1.3

1.1

0.9

0.5

0.1

0.0

0.0

0.0

0.0

0.0

10.25% or more but less than 10.5%

1.6

1.4

1.2

1.0

0.8

0.4

0.0

0.0

0.0

0.0

0.0

0.0

10.5% or more 

1.5

1.3

1.1

0.9

0.7

0.3

0.0

0.0

0.0

0.0

0.0

0.0

Paragraph (a) as amended by L. 1985, Ch. 7 effective March 19, 1985 and repealed by L. 1998, Ch. 589, effective January 1, 1999. Paragraph (a) added by L.1998, Ch. 589, effective January 1, 1999. Repealed, and new paragraph (a) added by L. 2000, Ch. 5, effective January 1, 2001. Paragraph (a) amended by L. 2003, Ch. 413, effective August 26, 2003 and further amended by L. 2013, Ch. 57, effective January 1, 2014.

(aa) (i) If a qualified employer, with a minimum of seventeen quarters of liability, has an account percentage which is negativeon any computation date and the total wages paid by such employer in the preceding payroll year, is greater than or equal to eighty percent of the previous three payroll year's average total wages paid by the employer, then such employer's account percentage for the subsequent year shall be improved by four percentage points for purposes of determining the employer's rate of contribution. However, in no event shall the resulting rate of contribution after such adjustment be less than 6.1 percent. Such adjustment to the employer's account percentage shall be applicable only to the employer's current rate of contribution and the application of such adjustment shall be redetermined annually.

(ii)The terms "qualified employer", "employer's account percentage", "computation date", "wages", "payroll year" and "rate of contribution" shall have the meaning prescribed pursuant to article eighteen of this chapter .

Paragraph (aa) as added by L. 1998, Ch. 589, effective January 1, 1999 and amended by L. 2003, Ch. 413, effective August 26, 2003.

(b) Penalty for failure to file required returns. (1) In the case of a failure by an employer to file a quarterly combined withholding wage reporting and unemployment insurance return required by paragraph four of subsection (a) of section six hundred seventy-four of the tax law, there shall be imposed a penalty of five percent of the amount of contributions required to be shown on such return (including the amount of any assessment or modification made pursuant to this section) if the failure is for not more than one month with an additional five percent penalty for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate.

(2) The penalty provided for failure to file a return under this paragraph shall not be less than one hundred dollars for each occurrence.

(3) For purposes of this paragraph, the amount of contributions required to be shown on such return shall be reduced by the amount of any part of the contributions due which is paid on or before the date the return is required to be filed and by the amount of any credit to the contributions due which may be claimed upon such return.

(4) For other penalties relating to failure to file the quarterly combined withholding, wage reporting and unemployment insurance return, see paragraph one of subsection (v) of section six hundred eighty-five of the tax law.

(5) The penalties imposed and collected pursuant to this paragraph shall be credited to the unemployment insurance control fund established pursuant to section five hundred fifty-two-b of this article.

Paragraph (b) as amended by L. 1985, Ch. 7 effective March 19, 1985, and further amended by L. 1998, Ch. 589 effective January 1, 1999. Repealed, and new paragraph (b) added by L. 2000, Ch. 5, effective January 1, 2002.

(c) The rate for any employer who has not qualified under the provisions of paragraph (c) of subdivision one of this section solely because he has not been liable for contributions during at least the five completed calendar quarters ending on the computation date, or because he has not paid any remuneration in the payroll year preceding the computation date, shall be equal to the rate which applies pursuant to paragraph (a) of this subdivision to an employer who has a positive account percentage of less than one per centum, except that the rate for such employer shall in no event exceed three and four-tenths per centum.

Paragraph (c) as amended by L. 1998, Ch. 589, effective January 1, 1999.

(d) The rates established in accordance with the provisions of this subdivision shall apply with respect to wages paid in the four consecutive calendar quarters immediately following the computation date.

Paragraph (e) as amended by L. 1977, Ch. 675 effective January 1, 1978, and amended by L. 1984, Ch. 765 effective January 1, 1985, and repealed by L. 1998, Ch. 589, effective January 1, 1999. Paragraph (1) repealed by L. 1998, Ch. 589, effective January 1, 1999.Paragraph (g) repealed by L. 1983, Ch. 415, effective June 30, 1983. Subd. 2 as amended by L. 1972, Ch. 208, effective May 2, 1972.

3. Joint accounts. Any two or more qualified employers engaged in the same or a related trade, occupation, profession or enterprise, or having a common financial interest may apply to the commissioner to establish a joint account or to merge their several individual accounts in a joint account. The commissioner shall prescribe rules and regulations for the establishment, maintenance and dissolution of joint accounts. A joint account shall be maintained as if it constituted a single employer's account. Rules established by the commissioner pursuant to the provisions of this subdivision shall be promulgated only after notice and public hearing.

Subd. 3 as amended by L. 1955, Ch. 141, effective March 21, 1955.

4. Transfers of accounts. (a) Where an employer subsequent to July first, nineteen hundred fifty-one, transfers his or its organization, trade or business in whole or in part, the transferee shall take over and continue the employer's account, including its balance and all other aspects of its experience under this article, in proportion to the payroll or employees assignable to the transferred organization, trade or business determined for the purpose of this article bythe commissioner. The account taken over by the transferee shall remain chargeable with respect to benefits basedon employment in the transferred organization, trade or business, and all such employment shall be deemedemployment performed for the transferee.

(b) The rate of contribution applicable to the accounts of the transferee and the transferring employer with respect to the calendar year in which the transfer occurred shall be respectively determined or redetermined as of the computation date in the preceding calendar year, and such rates shall apply from the date of the transfer to the end of the calendar year in which the transfer occurred. The rate of contribution applicable to the accounts of the transferee and the transferring employer with respect to the calendar year following the calendar year in which the transfer occurred shall be respectively determined or redetermined as of the computation date in the same calendar year. The commissioner shall allocate to the transferee's account for each period in question the proportion of the transferring employer's payroll, which the commissioner determines to be properly assignable to the organization, trade or business transferred.

(c) No transfer shall be deemed to have occurred if the commissioner on his own motion or on application of anyinterested party finds that all of the following conditions exist:

(1) the transferee has not assumed any of the transferring employer's obligations, and

(2) the transferee has not acquired any of the transferring employer's good will, and

(3) the transferee has not continued or resumed the business of the transferring employer either in the same establishment or elsewhere, and

(4) the transferee has not employed substantially the same employees as those the transferring employer had employed in connection with the organization, trade, business, or part thereof transferred.

(d) No transfer shall be deemed to have occurred unless either the transferring employer or the transferee has givennotice of the transfer to the commissioner prior to the termination of the calendar year following the calendar year in which the transfer occurred.

Paragraph (d) as added by L. 1952, Ch. 728. effective April 15, 1952.

5. Interstate transfer of experience. An employer who transfers all or a segregable part of his operations from another state to this state shall be deemed to be a qualified employer within the meaning of this section as of the computation date next following the transfer, provided:

(a) that he has paid wages subject to the federal unemployment tax act for eighteen consecutive completed calendar quarters immediately preceding the computation date;

(b) that he notifies the commissioner of the transfer of operations prior to the computation date;

(c) that he certifies to the commissioner all information with respect to the transferred operations which the commissioner determines to be necessary; and

(d) that he certifies to the commissioner at such times as the commissioner prescribes all information which the commissioner determines to be necessary with respect to benefits paid subsequent to the transfer and prior to each computation date on the basis of wages paid in such other state.

Wages, remuneration, contributions and benefits resulting in experience rating charges in connection with the transferred operations shall be deemed to have been paid in this state for the purposes of this section.

In computing such employer's balance applicable to the transferred operations, the commissioner shall consider only the fourteen most recently elapsed calendar quarters prior to the computation date. Any balance set up under this subdivision shall be debited to the general account; and benefits subsequently paid based on wages paid in such other state shall be charged to the employer's account and credited to the general account.

6. Corrections and modifications. Corrections or modifications of an employer's payroll, experience rating charges, or any other pertinent factor shall not be taken into account for the purpose of a determination or redetermination of the employer’s contribution rate, unless such corrections or modifications were established on or before the computation date; except that they shall be taken into account whenever established if the employer filed false returns with intent to defraud or, with respect to payroll, failed to file returns prior to the computation date such that an amount of contributions due from such employer and/or an amount of wages paid by such employer was required to be determined by the commissioner pursuant to section five hundred seventy-one of this article and such corrections or modifications result in a rate higher than the contribution rate determined by the commissioner or, with respect to experience rating charges, if they result from a referee, appeal board, or court decision.

Subd. 6 as amended by L.1974, Ch.12 effective February 19, 1974, and further amended by

L. 2000, Ch. 5, effective December 31, 2000.

7. Certain transfers. Notwithstanding any other provision of law, the following shall apply regarding assignment of rates and transfers ofexperience:

(a)(1) If an employer transfers its organization, trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is at least ten percent common ownership, management or control of the two employers, then the unemployment experience attributable to the transferred organization, trade or business shall be transferred to the employer to whom such organization, trade or business is so transferred. In addition to the provisions of this subdivision, the transfer provisions of paragraphs (a), (b) and (d) of subdivision four of this section shall apply to such transfers. For purposes of this subdivision "organization, trade or business" shall include the employer's workforce.

(2) If, following a transfer of experience under subparagraph one of this paragraph, the commissioner determines that a substantial purpose of the transfer of the organization, trade or business was to obtain a reduced liability for contributions, then the experience rating accounts of the employers involved shall be combined into a single account and a single rate shall be assigned to such account.

(b) Whenever a person is not an employer liable for contributions under this article at the time it acquires the organization, trade or business of an employer, the unemployment experience of the acquired business shall not be transferred to such person if the commissioner finds that such person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, such person shall be assigned a rate in accordance with paragraph (c) of subdivision two of this section. In determining whether the organization, trade or business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the commissioner shall evaluate factors that include, but are not limited to the following:

(1) the cost of acquiring the organization, trade or business;

(2) whether the person continued the business enterprise of the acquired business;

(3) how long such business enterprise was continued; or

(4) whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.

(c)(1) If a person knowingly violates or attempts to violate paragraphs (a) or (b) of this subdivision, then such person shall be liable for the greater penalty of ten percent of such person's total taxable wages in the last completed payroll year or ten thousand

dollars. Any such penalty shall be deposited in the control fund established under section five hundred fifty-two-b of this article.

(2) If a person knowingly advises another person to violate or attempt to violate paragraph (a) or (b) of this subdivision, then such advisor shall be subject to a civil penalty of ten thousand dollars. Any such penalty shall be deposited in the control fund established under section five hundred fifty-two-b of this article.

(3) For purposes of this subdivision, the term "knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.

(4) For purposes of this subdivision, the term "violates or attempts to violate" includes, but is not limited to, intent to evade, misrepresentation or wilful nondisclosure.

(5) In addition to the penalties imposed by subparagraphs one and two of this paragraph, any violation of this subdivision shall be a class E felony and is punishable by a term of imprisonment as prescribed in section 70.00 of the penal law.

(d) The commissioner shall establish procedures to identify the transfer or acquisition of a business for purposes of this subdivision.

(e) For purposes of this subdivision the term "person" has the meaning given such term by section 7701 (a)(1) of the Internal Revenue Code of 1986, and shall also include an employer as defined in this article.

Subd. 7 as added by L. 2005, Ch. 391, effective January 1, 2006.

§581 as added by L. 1951, Ch. 645 effective June 4, 1951.

Sec. 581-a. Rates of contributions to fund in emergency.

1. Notwithstanding the provisions of section five hundred eighty-one of this chapter to the contrary, all employers whose employees received payments due to a layoff caused by flood conditions shall not have included in their experience rating charges the amounts so paid to the employees from the fund for the period of from June twenty-third, nineteen hundred seventy-two through June twenty-third, nineteen hundred seventy-three. Application for permission to exclude such payments shall be made to the commissioner on or before the first day of October, nineteen hundred seventy-three, and the provisions of subdivision six of section five hundred eighty-one of this chapter shall not apply hereto.

2. Notwithstanding the provisions of section five hundred eighty-one of this chapter to the contrary, all employers whose employees received payments due to the waiver of the waiting period pursuant to the provisions of subdivision nine of section five hundred ninety of this chapter shall not have included in their experience rating charges the amounts so paid to the employees from the fund for such waived waiting period during the snow and energy emergency of January and February, nineteen hundred seventy-seven. Application for permission to exclude such payments shall be made to the commissioner on or before the first day of October, nineteen hundred seventy- seven, and the provisions of subdivision six of section five hundred eighty-one of this chapter shall not apply hereto.

3. The provisions of this section shall apply to an employer liable for payments in lieu of contributions, but if the secretary of labor of the United States finds that their application to such employer does not meet the requirements of the Federal Unemployment Tax Act, such provisions shall be inoperative with respect to such employer, unless and until such finding has been set aside pursuant to a final decision issued in accordance with such judicial review proceedings as may be instituted and completed under the provisions of section thirty-three hundred ten of the Federal Unemployment Tax Act.

§581-a as added by L. 1973, Ch. 971 effective June 22, 1973 and amended by L. 1977, Ch. 617 effective August 1, 1977.

Sec. 581-b. Contributions to the re-employment service fund.

Each eligible employer that is liable for contributions under this article shall each calendar quarter make an additional contribution to the re-employment service fund in an amount equal to seventy-five one-thousandths of a percent (0.075%) of its quarterly taxable payroll. In any particular calendar year when contributions paid into the re-employment service fund by all eligible employers equals thirty-five million dollars, any further contributions for the remainder of such year shall be credited to the general account pursuant to section five hundred seventy-seven of this title.

§581-b as added by L. 1998, Ch. 589, effective January 1,1999, and amended by L. 2000, Ch. 5, effective February 15, 2000.

Sec. 581-c. Amnesty program.

1. Notwithstanding the provisions of any other law to the contrary, there is hereby established a three month amnesty program as described in this section, to be administered by the commissioner, to be effective for the period commencing October first, nineteen hundred ninety-eight and ending December thirty first, nineteen hundred ninety-eight, for all eligible employers as described in this section, owing any contribution imposed by section five hundred seventy-seven or five hundred eighty-one of this title.

2. Such amnesty shall apply to contribution liabilities for the contributions set forth in subdivision one of this section ("designated contributions") for contribution periods ending or transactions or uses occurring on or before December thirty-first, nineteen hundred ninety-five.

3. For purposes of this section an "eligible employer" shall mean any individual, partnership, corporation, limited liability company, joint stock company or any other company, society, association or business or any other person as described in this chapter, who or which has contribution liability with regard to one or more of the designated contributions for the period of time described in subdivision two of this section.

4. The amnesty program established in this section shall provide that upon application by an eligible employer, and upon payment, which shall either accompany such application or be made within the time stated on a bill issued by the commissioner to such employer, of the amount of a contribution liability under one or more of the designated contributions with respect to which amnesty is sought, plus related interest, and the commissioner shall waive any applicable penalties. In addition, no civil, administrative or criminal action or proceeding shall be brought against such an eligible employer relating to the contribution liability covered by such waiver. Failure to pay, all such contributions, plus related interest, shall invalidate an amnesty granted pursuant to this section.

5. An otherwise eligible employer, who or which certifies on an application for amnesty, that making payment of the full amount of the liability for which amnesty is sought at the time such application is made would create a severe financial hardship for such employer, shall retain eligibility for amnesty if, (a) fifty percent or more of the amount due as computed by such employer is paid with such application or within the time stated on a bill issued by the commissioner, and (b) the balance due, including interest, is paid, in no more than two installments on or before May fifteenth, nineteen hundred ninety-eight or the date prescribed therefor on a bill issued by the commissioner.

6. Amnesty shall not be granted to any contributor who is a party to any criminal investigation being conducted by an agency of the state or any political subdivision thereof or is a party to any civil or criminal litigation which is pending on the date of the employer's application in any court of this state or the United States relating to any action or failure to act which is the basis for the penalty with respect to which amnesty is sought. A civil litigation shall be deemed not to be pending on the date of the application if the employer withdraws from such litigation prior to the granting of amnesty.

7. Amnesty contribution return forms shall be in a form prescribed by the commissioner and shall provide for specifications by the applicant of the contribution liability with the respect to which amnesty is sought. The applicant shall also provide such additional information as required by the commissioner. Amnesty shall be granted only with respect to contribution liabilities specified by the employer on such forms. Any return or report filed under the amnesty program established in this section is subject to verification and assessment as provided by law. If the applicant files a false or fraudulent contribution return or report, or attempts in any manner to defeat or evade a contribution under the amnesty program, amnesty may be denied or rescinded.

8. No refund shall be granted or credit allowed with respect to any penalty paid prior to the time the employer applies for amnesty pursuant to subdivision four of this section.

9. Unless the commissioner on his or her own motion redetermines the amount of contribution due, including applicable interest, no refund shall be granted or credit allowed with respect to any contributions, including applicable interest paid under this program.

10. The commissioner may promulgate regulations, issue forms and instructions and take any and all other actions necessary to implement this section. The commissioner shall publicize the amnesty program provided for in this section so as to maximize public awareness of and participation in such program.

11. For purposes of this section, the amnesty contribution return forms and other documents filed by employers shall be deemed to be reports and returns subject to the disclosure prohibitions of section five hundred thirty-seven of this article.

12. Where an employer against whom or which a penalty is assessed, was eligible for a waiver thereof under the amnesty program provided for pursuant to this section but did not make timely application for such waiver, such penalty shall be augmented by an amount equal to five percent of the amount of such penalty.

13. For purposes of accounting for moneys and revenues received under the amnesty program established pursuant to this section, the commissioner shall report the gross revenue collected under each contribution pursuant to the amnesty program. Such report shall be on a monthly basis, commencing the first day of the month after the amnesty program is established and ending on the last day of the month immediately prior to the issuance of the final report required pursuant to subdivision fourteen of this section. Such reports shall include information concerning gross revenue collected under each contribution and the year or other applicable period for or during which the liability was incurred.

14. On or before January thirty-first, two thousand, the commissioner shall submit a report to the chairman of the assembly ways and means committee, the ranking minority member of the assembly ways and means committee, the chairman of the senate finance committee, the ranking minority member of the senate finance committee and the director of the division of the budget regarding the amnesty program established pursuant to this section. The report shall contain the following information:

(a) the number of cases in which requests for penalty and interest penalty waivers were made;

(b) the number of cases in which requests for penalty plus interest waivers were approved;

(c) the amount of contribution and interest due in all approved and unapproved cases;

(d) the amount of penalty and interest penalty waived in all approved cases;

(e) the gross revenue collected and the year or other applicable period for or during which the liability incurred;

(f) the amount of money spent on advertising, notification and out-reach activities, by each activity;

(g) the amount paid by the department for services and expenses related to the establishment of the amnesty program;

(h) an estimate of the amount of revenue foregone as a result of diverting staff of the department from regular work responsibilities to work on the amnesty program;

(i) an estimate of the amount of revenue received during the period of amnesty program provided for in this section which would have otherwise been received at a later date; and

(j) an estimate of the set revenue generated from the amnesty program.

Sec. 581-c as added by L. 1998, Ch. 589, effective January 1, 1999.

 

Sec. 581-d. Contributions to the interest assessment surcharge fund.

1. Each employer that is liable for contributions under this article shall pay an assessment to the commissioner at a rate established annually by the commissioner sufficient to pay interest due on advances from the federal unemployment account under Title XII of the Social Security Act (42 U.S. Code Sections 1321 to 1324) during any period that such interest will accrue. The rate shall be applied to wages as defined in section five hundred eighteen of this article effective as of the beginning of the first calendar quarter of the year such interest becomes due. The commissioner shall establish the necessary procedures for payment of such assessments. The amounts received by the commissioner based on such assessments shall be paid over and credited to the interest assessment surcharge fund. At such time that the commissioner determines that this assessment is no longer necessary, any amount remaining from such assessments, after all such federal interest charges have been paid, shall be deposited into the unemployment insurance trust fund and credited to employer accounts. Such credits shall be determined based on the percentage of each employer's wages to the total statewide wages of the payroll year and credited to each employer's account as of the computation date of the year prior to which such assessment shall no longer be levied. The provisions of law applicable to the collection of contributions shall apply to the collection of such assessments.

2.The commissioner shall notify the chairpersons of the senate finance committee and the assembly ways and means committee of the amount being assessed on employers and the procedures for payment of such assessments no later than thirty days prior to the application of the interest assessment surcharge. On a quarterly basis the commissioner shall provide the chairpersons of the senate finance committee and the assembly ways and means committee the assessment rate that shall be applied to wages as well as the amount of any previous advances and the estimated amount of future monthly advances from the federal unemployment account under Title XII of the Social Security Act (42 U.S. Code Sections 1321 to 1324) for the calendar year, the amount of interest due and the amount of interest paid for the calendar year.

Sec. 581-d as added by L. 2003, Ch.62, effective April 1, 2003. In effect until December 31, 2013.

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