Section 443.141, Florida Statutes 2001
443.141 Collection of contributions.--
(1) PAST DUE CONTRIBUTIONS.--
(a) Interest.--Contributions unpaid on the date on which they are due and payable shall bear interest at the rate of 1 percent per month from and after such date until payment plus accrued interest is received by the division, unless the division finds that the employing unit has or had good reason for failure to pay contributions when due. Interest collected pursuant to this subsection shall be paid into the Special Employment Security Administration Trust Fund.
(b) Penalty for delinquent reports.--
1. Any employing unit which fails to file any reports required by the division in the administration of this chapter, in accordance with rules adopted by the division, shall pay to the division with respect to each such report the sum of $25 for each 30 days or fraction thereof that such employing unit is delinquent, unless the division finds that such employing unit has or had good reason for failure to file such report or reports.
2. Sums collected as penalties under the provisions of subparagraph 1. shall be deposited by the division in the Special Employment Security Administration Trust Fund.
3. A waiver of penalty and interest for delinquent reports may be authorized where impositions of interest or a penalty would be inequitable.
(c) Application of partial payments.--When a delinquency exists in the account of an employer not in bankruptcy, and payment in an amount less than the total delinquency is submitted, the division shall apply such partial payment as the payor directs. In the absence of specific direction, the division shall apply the partial payment to the payor's account as prescribed by rule.
(2) REPORTS, CONTRIBUTIONS, APPEALS.--
(a) Failure to make reports and pay contributions.--If any employing unit determined by the division to be an employer subject to the provisions of this chapter fails to make and file any report as and when required by the terms and provisions of this chapter or by any rule of the division, for the purpose of determining the amount of contributions due by such employer under this chapter, or if any such report which has been filed is deemed by the division to be incorrect or insufficient, and such employer, after having been given written notice by the division to file such report, or a corrected or sufficient report, as the case may be, fails to file such report within 15 days after the date of the mailing of such notice, the division may:
1. Determine the amount of contributions due from such employer on the basis of such information as may be readily available to it, which determination shall be deemed to be prima facie correct;
2. Assess such employer with the amount of contributions so determined; and
3. Immediately give written notice by registered or certified mail to such employer of such determination and assessment including penalties as provided in this chapter, if any, added and assessed, demanding payment of same together with interest as herein provided on the amount of contributions from the date when same were due and payable.
Such determination and assessment shall be final at the expiration of 15 days from the date of the mailing of such written notice thereof demanding payment unless such employer has filed with the division a written protest and petition for hearing specifying the objections thereto. Upon receipt of such petition within the 15 days allowed, the division shall fix the time and place for a hearing and shall notify the petitioner thereof. The division may appoint special deputies with full power to hold hearings hereunder and to submit their findings together with a transcript of the proceedings before them and their recommendations to the division for its final decision and determination. Special deputies shall be subject to the prohibition on ex parte communications as provided in s. 120.66. At any hearing held before the division or its special deputy, as herein provided, evidence may be offered to support such determination and assessment or to prove that it is incorrect. However, at such hearing, the petitioner shall be required to show wherein that it is incorrect or else file full and complete corrected reports. Evidence may also be submitted at such hearing to rebut the determination by the division that the petitioner is an employer under the provisions of this chapter; and, upon evidence taken before it or upon the transcript submitted to it with the findings and recommendation of its special deputy, the division may set aside its determination that the petitioner is an employer under the provisions of this chapter or may reaffirm such determination. The amounts assessed pursuant to a final determination by the division hereunder together with interest and penalties shall be paid within 15 days after notice of such final decision and assessment and demand for payment thereof by the division has been mailed to such employer, unless judicial review is instituted in a case of status determination. Amounts due when the status of the employer is in dispute shall be payable within 15 days of the entry of an order by the court affirming such determination. However, any determination by the division that an employing unit is not an employer under the provisions of this chapter shall not affect the benefit rights of any individual as determined by an appeals referee or the commission, under the provisions of this chapter, unless such individual has been made a party to the proceedings before the division, or unless such determination of the commission or appeals referee has not become final or the employing unit and the division have not been made parties to the proceedings before the appeals referee or the commission.
(b) Appeals.--Subject to the foregoing provisions of this subsection, the division shall by regulation prescribe the manner pursuant to which an employing unit which has been determined to be an employer may file an appeal and be afforded an opportunity for a hearing on such determination. Pending such hearing, the employing unit shall file reports and pay contributions in accordance with s. 443.131.
(3) COLLECTION PROCEEDINGS.--
(a) Lien for payment of contributions.--
1. There is hereby created a lien in favor of the division upon all the property, both real and personal, of any employer who has become liable for the payment of any contribution levied and imposed upon it by this law for the amount of the contributions due and payable under the provisions hereof, together with interest, costs, and penalties; and if any contribution imposed by this chapter or any portion of such contribution or interest or penalty is not paid within 60 days after the same becomes delinquent, the division may thereafter issue a notice of lien under its official seal, which notice of lien may be filed in the office of the clerk of the circuit court of any county in which the delinquent employer owns property or has conducted business, and which notice of lien shall set forth the periods for which the contributions, interest, or penalties are demanded and the amounts thereof, a copy of which notice of lien shall be mailed to the employer at her or his last known address by registered mail. Provided, that notice of lien may be issued and recorded at the expiration of 15 days from the date assessment becomes final under the provisions of subsection (2). Upon presentation of the notice of lien, the clerk of the circuit court shall record it in a book maintained by her or him for that purpose, and thereupon the amount of the notice of lien, together with the cost of recording and interest accruing upon the contribution amount, shall become a lien upon the title to and interest, whether legal or equitable, in any real property, chattels real, or personal property of such employer against whom such notice of lien is issued, in the same manner as a judgment of the circuit court duly docketed in the office of such circuit court clerk with execution duly issued thereon and in the hands of the sheriff for levy; and such lien shall be prior, preferred, and superior to all mortgages or other liens filed, recorded, or acquired subsequent to the time such notice of lien shall have been filed. Upon the payment of the amounts due thereunder, or upon determination by the division that such notice of lien was erroneously issued, the same may be satisfied of record by the division by an acknowledgment under the seal of the division that such lien has been fully satisfied. Such satisfaction need not be acknowledged before any notary or other public officer, and the seal of the division together with the signature of the director shall be conclusive evidence of the satisfaction of the lien, which satisfaction shall be recorded by the clerk of the circuit court who shall receive fees for such services as may be fixed by law for the recording of instruments generally.
2. The division may thereafter issue a warrant directed to all and singular sheriffs in the state, commanding them to levy upon and sell any real or personal property of the employer liable for any amount under this law within their respective jurisdictions, for the payment of the amount thereof, with the added penalties and interest and the costs of executing the warrant, together with the costs of the clerk of the circuit court in recording and docketing the notice of lien, and to return such warrant to the division and to pay to it the money collected by virtue thereof; such warrant shall issue and be enforced for all amounts due the division as of the date of issuance thereof, together with interest accruing on the contribution amount due from the employer to the date of payment at the rate provided herein; however, in the event of sale of any assets of the employer, priorities under the warrant shall be determined in accordance with the priority established by the notice or notices of lien filed by the division and recorded by the clerk of the circuit court. The sheriff shall proceed upon the warrant in all respects with like effect and in the same manner prescribed by law in respect to executions issued out of the office of the clerk of the circuit court upon judgments of the circuit court; and the sheriff shall be entitled to the same fees for her or his services in executing the warrant as under a writ of execution out of the circuit court, such fees to be collected in the same manner.
(b) Injunctive procedures to contest warrants after issuance.--No writ of injunction or restraining order to stay the execution of such warrant shall issue until a bill praying therefor has been filed and reasonable notice of hearing of motion for such injunction has previously been served on the division, nor unless the party applying therefor has previously tendered and paid into the custody of the court the full amount of contributions, interests, costs, and penalties claimed in such warrant or entered into and filed in the court a bond with two or more good and sufficient sureties approved by the court in a sum at least double the amount of such contributions, interests, costs, and penalties, payable to the division, and conditioned to pay the amount of such warrant, interest thereon, and such damages as may be occasioned by the wrongful issuing of the injunction, if the injunction is dissolved, or the bill upon which it may be granted is dismissed. Only one surety shall be required when such bond is executed by a lawfully authorized surety company as surety thereon.
(c) Attachment and garnishment.--Upon the filing of notice of lien as provided in subparagraph (a)1., the division is entitled to remedy by attachment or garnishment as provided in chapters 76 and 77, as for a debt due; and, upon application by the division, such writs shall issue out of the office of the clerk of the circuit court as upon a judgment of the circuit court duly docketed and recorded, and such writs shall be made returnable to the circuit court. However, no bond shall be required of the division as a condition precedent to the issuance of such writs of attachment or garnishment. Issues raised under proceedings by attachment or garnishment shall be tried by the circuit court as upon a judgment thereof in the manner provided in chapters 76 and 77. Further, the notice of lien filed by the division shall be of full force and effect for the purposes of all remedies provided for in this chapter until satisfied as provided in this chapter, and no revival by scire facias or other proceedings shall be necessary prior to the pursuit of any remedy herein provided for, and proceedings authorized as upon a judgment of the circuit court shall not be construed as making of the lien a judgment of the circuit court upon a debt for any purpose except as herein specifically set forth as procedural remedies only.
(d) Third-party claims.--Upon any levy made by the sheriff under the authority of a writ of attachment or garnishment as provided in paragraph (c), third-party claims to property involved shall be tried by the circuit court as upon a judgment thereof and all proceedings shall be authorized on such third-party claims as provided in ss. 56.16, 56.20, 76.21, and 77.16.
(e) Proceedings supplementary to execution.--At any time after a warrant provided for in subparagraph (a)2. has been in the hands of any sheriff of this state and returned unsatisfied, the division may make and file an affidavit in the circuit court affirming such fact and also that such warrant is valid and outstanding and also stating the residence of the party or parties against whom the warrant has been issued; and the division shall thereupon be entitled to have other and further proceedings in the circuit court as upon a judgment thereof as provided in s. 56.29.
(f) Photostats.--In any proceedings in any court under this chapter photostats of original records or microfilm copies of records of the division or the commission shall be primary evidence in lieu of the originals of such records or of the documents which have been transcribed into such records.
(g) Jeopardy assessment and warrant.--If the division has just cause to believe and does believe that the collection of contributions from an employer will be jeopardized by delay, it may assess such contributions immediately, together with interest or penalties when due, whether or not contributions accrued have become due, and may immediately issue a notice of lien and jeopardy warrant upon which proceedings may be had as herein provided for notice of lien and warrant of the division. Within 15 days from the mailing of such notice of lien by registered mail, the employer against whom such notice of lien and warrant is issued may protest the issuance thereof in the same manner provided in paragraph (2)(a), and further proceedings shall be had upon the protest as therein provided. Such protest shall not operate as a supersedeas or stay of enforcement proceedings until and unless the employer has filed with the sheriff seeking to enforce the warrant of the division a good and sufficient surety bond in twice the amount demanded by the notice of lien or warrant conditioned upon payment of the amount subsequently found to be due from the employer to the division by final determination of the division upon protest of assessment. The jeopardy warrant and notice of lien shall be satisfied by the division in the manner heretofore provided upon payment of the amount finally determined to be due from the employer. In the event enforcement of the jeopardy warrant is not superseded as hereinabove provided, the employer shall be entitled to a refund from the fund of all amounts paid as contributions in excess of the amount finally determined to be due by the employer upon application being made as provided in this chapter.
(4) MISCELLANEOUS PROVISIONS FOR ENFORCEMENT OF COLLECTION OF CONTRIBUTIONS.--
(a) Independently of all other remedies and proceedings authorized by this law for the enforcement of and the collection of contributions hereby levied, a right of action by suit in the name of the division is created. Suit may be maintained and prosecuted, and all proceedings taken, to the same effect and extent as for the enforcement of a right of action for debt or assumpsit, and any and all remedies available in such actions, including attachment and garnishment, shall be available to the division for the collection of any contribution accruing hereunder; however, the division shall not be required to post bond in any such action or proceedings; further, nothing herein contained shall be construed as making of such contributions a debt or demand unenforceable against homestead property provided by Art. X of the State Constitution, the above remedies being procedural only.
(b) Any employer failing to make return or to pay the contributions levied under this chapter, and who has not ceased to be an employer as provided in s. 443.121, may be enjoined from employing individuals in employment as defined in this chapter upon the complaint of the division in the circuit court of the county in which the employer may be doing business; and such employer so failing to make return or to pay contributions levied hereunder shall be enjoined from employing individuals in employment until such return shall have been made and the contributions shown to be due thereunder have been paid to the division.
(c) The division or any agent or employee whom it may designate shall have the power to administer an oath to any person in respect to any return or report required by this law or by the rules of the division, and such oath made before the division or any authorized agent or employee shall have the same efficacy as an oath made before any judicial officer or notary public of the state.
(d) Civil actions brought under this chapter to collect contributions and interest thereon or any proceeding had herein for the collection of contributions from an employer shall be heard by the court having jurisdiction thereof at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review of claims for benefits arising under this chapter and cases arising under the Workers' Compensation Law of this state.
(e) The division is authorized to commence action in any other state by and in the name of the division to collect unemployment compensation contributions, penalties, and interest legally due this state. The officials of other states which extend a like comity to this state are authorized to sue for the collection of such contributions, interest, and penalties in the courts of this state. The courts of this state shall recognize and enforce liability for such contributions, interest, and penalties imposed by other states which extend a like comity to this state.
(f) The collection of any contribution, interest, and penalty otherwise due under this chapter shall not be enforceable by civil action, warrant, claim, or other means unless, within 5 years from the date upon which such contribution, interest, and penalty became due and payable as provided by law and by rule of the division, a notice of lien with respect to such contribution, interest, and penalty was filed for record with a clerk of a circuit court as provided in subsection (3).
(5) PRIORITIES UNDER LEGAL DISSOLUTION OR DISTRIBUTIONS.--In the event of any distribution of any employer's assets pursuant to an order of any court under the laws of this state, including any receivership, assignment for the benefit of creditors, adjudicated insolvency, composition, administration of estates of decedents, or other similar proceeding, contributions then or thereafter due shall be paid in full prior to all other claims except claims for wages of not more than $250 to each claimant, earned within 6 months of the commencement of the proceeding, and on a parity with all other tax claims wherever such tax claims have been given priority. In the administration of the estate of any decedent, the filing of notice of lien shall be deemed a proceeding required upon protest of the claim filed by the division for contributions due under this chapter, and such claim shall be allowed by the circuit judge. However, the personal representative of the decedent may by petition to the circuit court object to the validity of the claim of the division, and proceedings shall be had in the circuit court for the determination of the validity of the claim of the division. Further, the bond of the personal representative shall not be discharged until such claim is finally determined by the circuit court; and, when no bond has been given by the personal representative, none of the assets of the estate shall be distributed until such final determination by the circuit court. Upon distribution of the assets of the estate of any decedent, the claim of the division shall have class 8 priority established in s. 733.707(1)(h), subject to the above limitations with reference to wages. In the event of any employer's adjudication in bankruptcy, judicially confirmed extension proposal, or composition, under the 1Federal Bankruptcy Act of 1898, as amended, contributions then or thereafter due shall be entitled to such priority as is provided in s. 64B of that act (U.S.C. Title II, s. 104(b), as amended).
(6) REFUNDS.--If, not later than 4 years after the date of payment of any amount as contributions, interest, or penalties, an employing unit that has paid such contributions, interest, or penalties makes application for an adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because such adjustment cannot be made, and the division determines that such contributions, interest, or penalties or any portion thereof was erroneously collected, the division shall allow such employing unit to make an adjustment thereof without interest in connection with subsequent contribution payment by it, or if such adjustment cannot be made, the division shall refund said amount, without interest, from the fund. For like cause, and within the same period, adjustment or refund may be made on the division's own initiative. However, nothing in this chapter shall be construed to authorize a refund of contributions which were properly paid in accordance with the provisions of this chapter at the time of such payment, except as required by s. 443.036(21)(n)5.; further, refunds under this subsection and under s. 443.036(21)(n)5. may be paid from either the clearing account or the benefit account of the Unemployment Compensation Trust Fund and from the Special Employment Security Administration Trust Fund with respect to interest or penalties which have been previously paid into such fund, the provisions of s. 443.191(2) to the contrary notwithstanding.
History.--s. 15, ch. 18402, 1937; s. 10, ch. 19637, 1939; CGL 1940 Supp. 4151(502); s. 14, ch. 20685, 1941; s. 5, ch. 21982, 1943; s. 5, ch. 24084, 1947; s. 11, ch. 25035, 1949; s. 9, ch. 26879, 1951; s. 12, ch. 28242, 1953; s. 12, ch. 29771, 1955; s. 3, ch. 57-268; s. 24, ch. 57-1; s. 2, ch. 61-119; s. 3, ch. 61-228; s. 4, ch. 65-114; ss. 17, 35, ch. 69-106; s. 11, ch. 71-225; s. 1, ch. 73-283; s. 26, ch. 73-334; s. 1, ch. 77-174; s. 11, ch. 78-95; s. 27, ch. 79-7; s. 76, ch. 79-40; ss. 4, 8, 9, ch. 80-95; s. 6, ch. 80-345; s. 283, ch. 81-259; s. 11, ch. 83-174; s. 3, ch. 84-21; s. 9, ch. 88-289; s. 7, ch. 91-220; s. 4, ch. 92-38; s. 6, ch. 96-411; s. 1064, ch. 97-103; s. 8, ch. 98-149; s. 103, ch. 2000-153.
1Note.--Replaced by the 1978 Bankruptcy Code.
Note.--Former s. 443.15.