Florida Senate - 2010                                    SB 1736
       By Senator Garcia
       40-01668-10                                           20101736__
    1                        A bill to be entitled                      
    2         An act relating to unemployment compensation; amending
    3         s. 443.131, F.S.; correcting a cross-reference;
    4         amending s. 443.141, F.S.; updating a cross-reference;
    5         amending s. 443.163, F.S.; specifying that the Agency
    6         for Workforce Innovation or its service provider shall
    7         prescribe the form and procedures for electronic
    8         filing; deleting an obsolete provision; amending s.
    9         443.1715, F.S.; specifying that an employer may obtain
   10         employee wage information from the agency or its tax
   11         collection services provider; providing an effective
   12         date.
   14  Be It Enacted by the Legislature of the State of Florida:
   16         Section 1. Paragraph (g) of subsection (3) of section
   17  443.131, Florida Statutes, is amended to read:
   18         443.131 Contributions.—
   21         (g) Transfer of unemployment experience upon transfer or
   22  acquisition of a business.—Notwithstanding any other provision
   23  of law, upon transfer or acquisition of a business, the
   24  following conditions apply to the assignment of rates and to
   25  transfers of unemployment experience:
   26         1.a. If an employer transfers its trade or business, or a
   27  portion thereof, to another employer and, at the time of the
   28  transfer, there is any common ownership, management, or control
   29  of the two employers, the unemployment experience attributable
   30  to the transferred trade or business is shall be transferred to
   31  the employer to whom the business is so transferred. The rates
   32  of both employers shall be recalculated and made effective as of
   33  the beginning of the calendar quarter immediately following the
   34  date of the transfer of the trade or business unless the
   35  transfer occurred on the first day of a calendar quarter, in
   36  which case the rate shall be recalculated as of that date.
   37         b. If, following a transfer of unemployment experience
   38  under sub-subparagraph a., the Agency for Workforce Innovation
   39  or the tax collection service provider determines that a
   40  substantial purpose of the transfer of trade or business was to
   41  obtain a reduced liability for contributions, the experience
   42  rating account of the employers involved shall be combined into
   43  a single account and a single rate assigned to the account.
   44         2. If Whenever a person who is not an employer under this
   45  chapter at the time it acquires the trade or business of an
   46  employer, the unemployment experience of the acquired business
   47  may shall not be transferred to such the person if the Agency
   48  for Workforce Innovation or the tax collection service provider
   49  finds that such person acquired the business solely or primarily
   50  for the purpose of obtaining a lower rate of contributions.
   51  Instead, the such person shall be assigned the new employer rate
   52  under paragraph (2)(a). In determining whether the business was
   53  acquired solely or primarily for the purpose of obtaining a
   54  lower rate of contributions, the tax collection service provider
   55  shall, at a minimum, consider, but not be limited to, the
   56  following factors:
   57         a. Whether the person continued the business enterprise of
   58  the acquired business;
   59         b. How long such business enterprise was continued; or
   60         c. Whether a substantial number of new employees were was
   61  hired for performance of duties unrelated to the business
   62  activity conducted before the acquisition.
   63         3. If a person knowingly violates or attempts to violate
   64  subparagraph 1. or subparagraph 2. or any other provision of
   65  this chapter related to determining the assignment of a
   66  contribution rate, or if a person knowingly advises another
   67  person to violate the law, the person is shall be subject to the
   68  following penalties:
   69         a. If the person is an employer, the employer shall be
   70  assigned the highest rate assignable under this chapter for the
   71  rate year during which the such violation or attempted violation
   72  occurred and for the 3 rate years immediately following the this
   73  rate year. However, if the person’s business is already at the
   74  highest rate for any year, or if the amount of increase in the
   75  person’s rate would be less than 2 percent for such year, then a
   76  penalty rate of contribution of 2 percent of taxable wages shall
   77  be imposed for that such year and the following 3 rate years.
   78         b. If the person is not an employer, such person is shall
   79  be subject to a civil money penalty of up to not more than
   80  $5,000. The procedures for the assessment of a penalty shall be
   81  in accordance with the procedures set forth in s. 443.141(2),
   82  and the provisions of s. 443.141(3) shall apply to the
   83  collection of the penalty. Any such penalty shall be deposited
   84  in the penalty and interest account established under s.
   85  443.211(2).
   86         4. As used in subparagraph 3. For purposes of this
   87  paragraph, the term:
   88         a. “Knowingly” means having actual knowledge of or acting
   89  with deliberate ignorance or reckless disregard for the
   90  prohibition involved.
   91         b. “Violates or attempts to violate” includes, but is not
   92  limited to, intent to evade, misrepresent, or willfully
   93  nondisclose.
   94         5. In addition to the penalty imposed by subparagraph 3.,
   95  any person who violates this paragraph commits a felony of the
   96  third degree, punishable as provided in s. 775.082, s. 775.083,
   97  or s. 775.084.
   98         6. The Agency for Workforce Innovation and the tax
   99  collection service provider shall establish procedures to
  100  identify the transfer or acquisition of a business for the
  101  purposes of this paragraph and shall adopt any rules necessary
  102  to administer this paragraph.
  103         7. As used in For purposes of this paragraph, the term:
  104         a. “Person” has the meaning given to the term by s.
  105  7701(a)(1) of the Internal Revenue Code of 1986.
  106         b. “Trade or business” includes shall include the
  107  employer’s workforce.
  108         8. This paragraph shall be interpreted and applied in such
  109  a manner as to meet the minimum requirements contained in any
  110  guidance or regulations issued by the United States Department
  111  of Labor.
  112         Section 2. Subsection (5) of section 443.141, Florida
  113  Statutes, is amended to read:
  114         443.141 Collection of contributions and reimbursements.—
  116  the event of any distribution of an any employer’s assets
  117  pursuant to an order of any court under the laws of this state,
  118  including any receivership, assignment for the benefit of
  119  creditors, adjudicated insolvency, composition, administration
  120  of estates of decedents, or other similar proceeding,
  121  contributions or reimbursements then or subsequently due must be
  122  paid in full before all other claims except claims for wages of
  123  $250 or less to each claimant, earned within 6 months after the
  124  commencement of the proceeding, and on a parity with all other
  125  tax claims wherever those tax claims are given priority. In the
  126  administration of the estate of a any decedent, the filing of
  127  notice of lien is a proceeding required upon protest of the
  128  claim filed by the tax collection service provider for
  129  contributions or reimbursements due under this chapter, and the
  130  claim must be allowed by the circuit judge. However, the
  131  personal representative of the decedent, however, may, by
  132  petition to the circuit court, object to the validity of the tax
  133  collection service provider’s claim, and proceedings shall be
  134  conducted in the circuit court for the determination of the
  135  validity of the service provider’s claim. Further, the bond of
  136  the personal representative may not be discharged until the
  137  claim is finally determined by the circuit court. If When a bond
  138  is not given by the personal representative, the assets of the
  139  estate may not be distributed until the final determination by
  140  the circuit court. Upon distribution of the assets of the estate
  141  of any decedent, the tax collection service provider’s claim has
  142  a class 8 priority as established in s. 733.707(1)(h), subject
  143  to the above limitations with reference to wages. In the event
  144  of an any employer’s adjudication in bankruptcy, judicially
  145  confirmed extension proposal, or composition, under the Federal
  146  Bankruptcy Reform Act of 1978, 1898, as amended, contributions
  147  or reimbursements then or subsequently due are entitled to
  148  priority as is provided in 11 U.S.C. s. 507(a)(8) s. 64B of that
  149  act (U.S.C. Title II, s. 104(b), as amended).
  150         Section 3. Subsection (1) of section 443.163, Florida
  151  Statutes, is amended to read:
  152         443.163 Electronic reporting and remitting of contributions
  153  and reimbursements.—
  154         (1) An employer may file any report and remit any
  155  contributions or reimbursements required under this chapter by
  156  electronic means. The Agency for Workforce Innovation or the
  157  state agency providing unemployment tax collection services
  158  shall adopt rules prescribing the format and instructions
  159  necessary for electronically filing reports and remitting
  160  contributions and reimbursements to ensure a full collection of
  161  contributions and reimbursements due. The acceptable method of
  162  transfer, the method, form, and content of the electronic means,
  163  and the method, if any, by which the employer will be provided
  164  with an acknowledgment shall be prescribed by the Agency for
  165  Workforce Innovation or its tax collection service provider.
  166  However, an any employer who employed 10 or more employees in
  167  any quarter during the preceding state fiscal year must file the
  168  Employers Quarterly Reports (UCT-6) for the current calendar
  169  year and remit the contributions and reimbursements due by
  170  electronic means approved by the agency or its tax collection
  171  service provider. A person who prepared and reported for 100 or
  172  more employers in any quarter during the preceding state fiscal
  173  year must file the Employers Quarterly Reports (UCT-6) for each
  174  calendar quarter in the current calendar year, beginning with
  175  reports due for the second calendar quarter of 2003, by
  176  electronic means approved by the agency or its tax collection
  177  service provider.
  178         Section 4. Paragraph (b) of subsection (2) of section
  179  443.1715, Florida Statutes, is amended to read:
  180         443.1715 Disclosure of information; confidentiality.—
  182         (b)1. The employer or the employer’s workers’ compensation
  183  carrier against whom a claim for benefits under chapter 440 has
  184  been made, or a representative of either, may request from the
  185  Agency for Workforce Innovation or its tax collection services
  186  provider division records of wages of the employee reported to
  187  the agency or its provider division by any employer for the
  188  quarter that includes the date of the accident that is the
  189  subject of such claim and for subsequent quarters.
  190         1. The request must be made with the authorization or
  191  consent of the employee or any employer who paid wages to the
  192  employee after subsequent to the date of the accident.
  193         2. The employer or carrier shall make the request on a form
  194  prescribed by rule for such purpose by the agency or its service
  195  provider division. Such form shall contain a certification by
  196  the requesting party that it is a party entitled to the
  197  information requested as authorized by this paragraph.
  198         3. The agency or its service provider division shall
  199  provide the most current information readily available within 15
  200  days after receiving the request.
  201         Section 5. This act shall take effect July 1, 2010.

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