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2016 Florida Statutes

SECTION 141
Collection of contributions and reimbursements.
F.S. 443.141
443.141 Collection of contributions and reimbursements.
(1) PAST DUE CONTRIBUTIONS AND REIMBURSEMENTS; DELINQUENT, ERRONEOUS, INCOMPLETE, OR INSUFFICIENT REPORTS.
(a) Interest.Contributions or reimbursements unpaid on the date due bear interest at the rate of 1 percent per month through December 31, 2014. Beginning January 1, 2015, the interest rate shall be calculated in accordance with s. 213.235, except that the rate of interest may not exceed 1 percent per month from and after the date due until payment plus accrued interest is received by the tax collection service provider, unless the service provider finds that the employing unit has good reason for failing to pay the contributions or reimbursements when due. Interest collected under this subsection must be paid into the Special Employment Security Administration Trust Fund.
(b) Penalty for delinquent, erroneous, incomplete, or insufficient reports.
1. An employing unit that fails to file any report required by the Department of Economic Opportunity or its tax collection service provider, in accordance with rules for administering this chapter, shall pay to the service provider for each delinquent report the sum of $25 for each 30 days or fraction thereof that the employing unit is delinquent, unless the department or its service provider, whichever required the report, finds that the employing unit has good reason for failing to file the report. The department or its service provider may assess penalties only through the date of the issuance of the final assessment notice. However, additional penalties accrue if the delinquent report is subsequently filed.
2.a. An employing unit that files an erroneous, incomplete, or insufficient report with the department or its tax collection service provider shall pay a penalty. The amount of the penalty is $50 or 10 percent of any tax due, whichever is greater, but no more than $300 per report. The penalty shall be added to any tax, penalty, or interest otherwise due.
b. The department or its tax collection service provider shall waive the penalty if the employing unit files an accurate, complete, and sufficient report within 30 days after a penalty notice is issued to the employing unit. The penalty may not be waived pursuant to this subparagraph more than one time during a 12-month period.
c. As used in this subsection, the term “erroneous, incomplete, or insufficient report” means a report so lacking in information, completeness, or arrangement that the report cannot be readily understood, verified, or reviewed. Such reports include, but are not limited to, reports having missing wage or employee information, missing or incorrect social security numbers, or illegible entries; reports submitted in a format that is not approved by the department or its tax collection service provider; and reports showing gross wages that do not equal the total of the wages of each employee. However, the term does not include a report that merely contains inaccurate data that was supplied to the employer by the employee, if the employer was unaware of the inaccuracy.
3. Penalties imposed pursuant to this paragraph shall be deposited in the Special Employment Security Administration Trust Fund.
4. The penalty and interest for a delinquent, erroneous, incomplete, or insufficient report may be waived if the penalty or interest is inequitable. The provisions of s. 213.24(1) apply to any penalty or interest that is imposed under this section.
(c) Application of partial payments.If a delinquency exists in the employment record of an employer not in bankruptcy, a partial payment less than the total delinquency amount shall be applied to the employment record as the payor directs. In the absence of specific direction, the partial payment shall be applied to the payor’s employment record as prescribed in the rules of the department or the state agency providing tax collection services.
(d) Payments for contributions.For an annual administrative fee not to exceed $5, a contributing employer may pay its quarterly contributions due for wages paid in the first three quarters of each year in equal installments if those contributions are paid as follows:
1. For contributions due for wages paid in the first quarter of each year, one-fourth of the contributions due must be paid on or before April 30, one-fourth must be paid on or before July 31, one-fourth must be paid on or before October 31, and one-fourth must be paid on or before December 31.
2. In addition to the payments specified in subparagraph 1., for contributions due for wages paid in the second quarter of each year, one-third of the contributions due must be paid on or before July 31, one-third must be paid on or before October 31, and one-third must be paid on or before December 31.
3. In addition to the payments specified in subparagraphs 1. and 2., for contributions due for wages paid in the third quarter of each year, one-half of the contributions due must be paid on or before October 31, and one-half must be paid on or before December 31.
4. The annual administrative fee assessed for electing to pay under the installment method shall be collected at the time the employer makes the first installment payment each year. The fee shall be segregated from the payment and deposited into the Operating Trust Fund of the Department of Revenue.
5. Interest does not accrue on any contribution that becomes due for wages paid in the first three quarters of each year if the employer pays the contribution in accordance with subparagraphs 1.-4. Interest and fees continue to accrue on prior delinquent contributions and commence accruing on all contributions due for wages paid in the first three quarters of each year which are not paid in accordance with subparagraphs 1.-3. Penalties may be assessed in accordance with this chapter. The contributions due for wages paid in the fourth quarter are not affected by this paragraph and are due and payable in accordance with this chapter.
(e) Adoption of rules.The department and the state agency providing reemployment assistance tax collection services may adopt rules to administer this subsection.
(2) REPORTS, CONTRIBUTIONS, APPEALS.
(a) Failure to make reports and pay contributions.If an employing unit determined by the tax collection service provider to be an employer subject to this chapter fails to make and file any report as and when required by this chapter or by any rule of the Department of Economic Opportunity or the state agency providing tax collection services, for the purpose of determining the amount of contributions due by the employer under this chapter, or if any filed report is found by the service provider to be incorrect or insufficient, and the employer, after being notified in writing by the service provider to file the report, or a corrected or sufficient report, as applicable, fails to file the report within 15 days after the date of the mailing of the notice, the tax collection service provider may:
1. Determine the amount of contributions due from the employer based on the information readily available to it, which determination is deemed to be prima facie correct;
2. Assess the employer the amount of contributions determined to be due; and
3. Immediately notify the employer by mail of the determination and assessment including penalties as provided in this chapter, if any, added and assessed, and demand payment together with interest on the amount of contributions from the date that amount was due and payable.
(b) Hearings.The determination and assessment are final 20 days after the date the assessment is mailed unless the employer files with the tax collection service provider within the 20 days a written protest and petition for hearing specifying the objections. The tax collection service provider shall promptly review each petition and may reconsider its determination and assessment in order to resolve the petitioner’s objections. The tax collection service provider shall forward each unresolved petition to the department for a hearing on the objections. Upon receipt of a petition, the department shall schedule a hearing and notify the petitioner of the time and place of the hearing. The department may appoint special deputies to conduct hearings who shall submit their findings together with a transcript of the proceedings before them and their recommendations to the department for its final order. Special deputies are subject to the prohibition against ex parte communications in s. 120.66. At any hearing conducted by the department or its special deputy, evidence may be offered to support the determination and assessment or to prove it is incorrect. In order to prevail, however, the petitioner must prove that the determination and assessment are incorrect or file full and complete corrected reports. Evidence may also be submitted to rebut the determination by the tax collection service provider that the petitioner is an employer under this chapter. Upon evidence taken before it or upon the transcript submitted to it with the findings and recommendation of its special deputy, the department shall set aside the tax collection service provider’s determination that the petitioner is an employer under this chapter or reaffirm the determination. The amounts assessed under the final order, together with interest and penalties, must be paid within 15 days after notice of the final order is mailed to the employer, unless judicial review is instituted in a case of status determination. Amounts due when the status of the employer is in dispute are payable within 15 days after the entry of an order by the court affirming the determination. However, a determination that an employing unit is not an employer under this chapter does not affect the benefit rights of an individual as determined by an appeals referee or the commission unless:
1. The individual is made a party to the proceedings before the special deputy; or
2. The decision of the appeals referee or the commission has not become final or the employing unit and the department were not made parties to the proceedings before the appeals referee or the commission.
(c) Appeals.The department and the state agency providing reemployment assistance tax collection services shall adopt rules prescribing the procedures for an employing unit determined to be an employer to file an appeal and be afforded an opportunity for a hearing on the determination. Pending a hearing, the employing unit must file reports and pay contributions in accordance with s. 443.131.
(3) COLLECTION PROCEEDINGS.
(a) Lien for payment of contributions or reimbursements.
1. A lien exists in favor of the tax collection service provider upon all the property, both real and personal, of an employer liable for payment of any contribution or reimbursement levied and imposed under this chapter for the amount of the contributions or reimbursements due, together with any interest, costs, and penalties. If any contribution or reimbursement imposed under this chapter or any portion of that contribution, reimbursement, interest, or penalty is not paid within 60 days after becoming delinquent, the tax collection service provider may file a notice of lien in the office of the clerk of the circuit court of any county in which the delinquent employer owns property or conducts or has conducted business. The notice of lien must include the periods for which the contributions, reimbursements, interest, or penalties are demanded and the amounts due. A copy of the notice of lien must be mailed to the employer at the employer’s last known address. The notice of lien may not be filed until 15 days after the date the assessment becomes final under subsection (2). Upon filing, the clerk of the circuit court shall record the notice of lien in a book maintained for that purpose. The amount of the lien, together with the cost of recording and interest accruing upon the amount of the contribution or reimbursement, becomes a lien upon the title to and interest, whether legal or equitable, in any real property, chattels real, or personal property of the employer against whom the notice of lien is issued, in the same manner as a judgment of the circuit court docketed in the office of the circuit court clerk, with execution issued to the sheriff for levy. This lien is prior, preferred, and superior to all mortgages or other liens filed, recorded, or acquired after the notice of lien is filed. Upon the payment of the amounts due, or upon determination by the tax collection service provider that the notice of lien was erroneously issued, the lien is satisfied when the service provider acknowledges in writing that the lien is fully satisfied. A lien’s satisfaction does not need to be acknowledged before any notary or other public officer, and the signature of the director of the tax collection service provider or designee is conclusive evidence of the satisfaction of the lien, which satisfaction shall be recorded by the clerk of the circuit court who receives the fees for those services.
2. The tax collection service provider may subsequently issue a warrant directed to any sheriff in this state, commanding him or her to levy upon and sell any real or personal property of the employer liable for any amount under this chapter within his or her jurisdiction, for payment, 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 the warrant to the service provider with payment. The warrant may only be issued and enforced for all amounts due to the tax collection service provider on the date the warrant is issued, together with interest accruing on the contribution or reimbursement due from the employer to the date of payment at the rate provided in this section. However, if there is a sale of any assets of the employer, priorities under the warrant shall be determined in accordance with the priority established by any notices of lien filed by the tax collection service provider and recorded by the clerk of the circuit court. The sheriff shall execute the warrant in the same manner prescribed by law for executions issued by the clerk of the circuit court for judgments of the circuit court. The sheriff is entitled to the same fees for executing the warrant as for a writ of execution out of the circuit court, and these fees must be collected in the same manner.
3. The lien expires 10 years after the filing of a notice of lien with the clerk of court. An action to collect amounts due under this chapter may not be commenced after the expiration of the lien securing the payment of the amounts owed.
(b) Injunctive procedures to contest warrants after issuance.An injunction or restraining order to stay the execution of a warrant may not be issued until a motion is filed; reasonable notice of a hearing on the motion for the injunction is served on the tax collection service provider; and the party seeking the injunction either pays into the custody of the court the full amount of contributions, reimbursements, interests, costs, and penalties claimed in the warrant or enters into and files with the court a bond with two or more good and sufficient sureties approved by the court in a sum at least twice the amount of the contributions, reimbursements, interests, costs, and penalties, payable to the tax collection service provider. The bond must also be conditioned to pay the amount of the warrant, interest, and any damages resulting from the wrongful issuing of the injunction, if the injunction is dissolved, or the motion for the injunction is dismissed. Only one surety is required when the bond is executed by a lawfully authorized surety company.
(c) Attachment and garnishment.Upon the filing of notice of lien as provided in subparagraph (a)1., the tax collection service provider is entitled to remedy by attachment or garnishment as provided in chapters 76 and 77, as for a debt due. Upon application by the tax collection service provider, these writs shall be issued by the clerk of the circuit court as upon a judgment of the circuit court duly docketed and recorded. These writs shall be returnable to the circuit court. A bond may not be required of the tax collection service provider as a condition required for the issuance of these writs of attachment or garnishment. Issues raised under proceedings by attachment or garnishment shall be tried by the circuit court in the same manner as a judgment under chapters 76 and 77. Further, the notice of lien filed by the tax collection service provider is valid for purposes of all remedies under this chapter until satisfied under this chapter, and revival by scire facias or other proceedings are not necessary before pursuing any remedy authorized by law. Proceedings authorized upon a judgment of the circuit court do not make the lien a judgment of the circuit court upon a debt for any purpose other than as are specifically provided by law as procedural remedies.
(d) Third-party claims.Upon any levy made by the sheriff under a writ of attachment or garnishment as provided in paragraph (c), the circuit court shall try third-party claims to property involved as upon a judgment thereof and all proceedings authorized on third-party claims in ss. 56.16, 56.20, 76.21, and 77.16 shall apply.
(e) Proceedings supplementary to execution.At any time after a warrant provided for in subparagraph (a)2. is returned unsatisfied by any sheriff of this state, the tax collection service provider may file an affidavit in the circuit court affirming the warrant was returned unsatisfied and remains valid and outstanding. The affidavit must also state the residence of the party or parties against whom the warrant is issued. The tax collection service provider is subsequently entitled to have other and further proceedings in the circuit court as upon a judgment thereof as provided in s. 56.29.
(f) Reproductions.In any proceedings in any court under this chapter, reproductions of the original records of the Department of Economic Opportunity, its tax collection service provider, the former Agency for Workforce Innovation, the former Department of Labor and Employment Security, or the commission, including, but not limited to, photocopies or microfilm, are primary evidence in lieu of the original records or of the documents that were transcribed into those records.
(g) Jeopardy assessment and warrant.If the tax collection service provider reasonably believes that the collection of contributions or reimbursements from an employer will be jeopardized by delay, the service provider may assess the contributions or reimbursements immediately, together with interest or penalties when due, regardless of whether the contributions or reimbursements accrued are due, and may immediately issue a notice of lien and jeopardy warrant upon which proceedings may be conducted as provided in this section for notice of lien and warrant of the service provider. Within 15 days after mailing the notice of lien by registered mail, the employer may protest the issuance of the lien in the same manner provided in paragraph (2)(a). The protest does not operate as a supersedeas or stay of enforcement unless the employer files with the sheriff seeking to enforce the warrant a good and sufficient surety bond in twice the amount demanded by the notice of lien or warrant. The bond must be conditioned upon payment of the amount subsequently found to be due from the employer to the tax collection service provider in the final order of the Department of Economic Opportunity upon protest of assessment. The jeopardy warrant and notice of lien are satisfied in the manner provided in this section upon payment of the amount finally determined to be due from the employer. If enforcement of the jeopardy warrant is not superseded as provided in this section, the employer is entitled to a refund from the fund of all amounts paid as contributions or reimbursements 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 COLLECTION OF CONTRIBUTIONS AND REIMBURSEMENTS.
(a) In addition to all other remedies and proceedings authorized by this chapter for the collection of contributions and reimbursements, a right of action by suit in the name of the tax collection service provider is created. A suit may be brought, and all proceedings taken, to the same effect and extent as for the enforcement of a right of action for debt or assumpsit, and all remedies available in such actions, including attachment and garnishment, are available to the tax collection service provider for the collection of any contribution or reimbursement. The tax collection service provider is not, however, required to post bond in any such action or proceedings. In addition, this section does not make these contributions or reimbursements a debt or demand unenforceable against homestead property as provided by Art. X of the State Constitution, and these remedies are solely procedural.
(b) An employer who fails to make return or pay the contributions or reimbursements levied under this chapter, and who remains 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 tax collection service provider in the circuit court of the county in which the employer does business. An employer who fails to make return or pay contributions or reimbursements shall be enjoined from employing individuals in employment until the return is made and the contributions or reimbursements are paid to the tax collection service provider.
(c) Any agent or employee designated by the Department of Economic Opportunity or its tax collection service provider may administer an oath to any person for any return or report required by this chapter or by the rules of the department or the state agency providing reemployment assistance tax collection services, and an oath made before the department or its service provider or any authorized agent or employee has the same effect as an oath made before any judicial officer or notary public of the state.
(d) Civil actions brought under this chapter to collect contributions, reimbursements, or interest, or any proceeding conducted for the collection of contributions or reimbursements from an employer, shall be heard by the court having jurisdiction at the earliest possible date and are 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 tax collection service provider may commence an action in any other state to collect reemployment assistance contributions, reimbursements, penalties, and interest legally due this state. The officials of other states that extend a like comity to this state may sue for the collection of contributions, reimbursements, interest, and penalties in the courts of this state. The courts of this state shall recognize and enforce liability for contributions, reimbursements, interest, and penalties imposed by other states that extend a like comity to this state.
(f) The collection of any contribution, reimbursement, interest, or penalty due under this chapter is not enforceable by civil action, warrant, claim, or other means unless the notice of lien is filed with the clerk of the circuit court as described in subsection (3) within 5 years after the date the contribution, reimbursement, interest, and penalty were due.
(5) PRIORITIES UNDER LEGAL DISSOLUTION OR DISTRIBUTIONS.In the event of any distribution of an 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 or reimbursements then or subsequently due must be paid in full before all other claims except claims for wages of $250 or less to each claimant, earned within 6 months after the commencement of the proceeding, and on a parity with all other tax claims wherever those tax claims are given priority. In the administration of the estate of a decedent, the filing of notice of lien is a proceeding required upon protest of the claim filed by the tax collection service provider for contributions or reimbursements due under this chapter, and the claim must 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 tax collection service provider’s claim, and proceedings shall be conducted in the circuit court for the determination of the validity of the service provider’s claim. Further, the bond of the personal representative may not be discharged until the claim is finally determined by the circuit court. If a bond is not given by the personal representative, the assets of the estate may not be distributed until the final determination by the circuit court. Upon distribution of the assets of the estate, the tax collection service provider’s claim has a class 8 priority as established in s. 733.707(1)(h), subject to the above limitations with reference to wages. In the event of an employer’s adjudication in bankruptcy, judicially confirmed extension proposal, or composition, under the Federal Bankruptcy Reform Act of 1978, as amended, contributions or reimbursements then or subsequently due are entitled to priority as is provided in 11 U.S.C. s. 507(a)(8).
(6) REFUNDS.
(a) Within 4 years after payment of any amount as contributions, reimbursements, interest, or penalties, an employing unit may apply for an adjustment of its subsequent payments of contributions or reimbursements, or for a refund if the adjustment cannot be made.
(b) If the tax collection service provider determines that any contributions, reimbursements, interest, or penalties were erroneously collected, the employing unit may adjust its subsequent payment of contributions or reimbursements by the amount erroneously collected. If an adjustment cannot be made, the tax collection service provider shall refund the amount erroneously collected from the fund.
(c) Within the time limit provided in paragraph (a), the tax collection service provider may on its own initiative adjust or refund the amount erroneously collected.
(d) This chapter does not authorize a refund of contributions or reimbursements properly paid in accordance with this chapter when the payment was made, except as required by s. 443.1216(13)(e).
(e) An employing unit entitled to a refund or adjustment for erroneously collected contributions, reimbursements, interest, or penalties is not entitled to interest on that erroneously collected amount.
(f) Refunds under this subsection and under s. 443.1216(13)(e) may be paid from the clearing account or the benefit account of the Unemployment Compensation Trust Fund and from the Special Employment Security Administration Trust Fund for interest or penalties previously paid into the fund, notwithstanding s. 443.191(2).
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; s. 38, ch. 2003-36; s. 24, ch. 2005-280; s. 35, ch. 2007-106; s. 5, ch. 2010-1; s. 10, ch. 2010-90; s. 20, ch. 2010-138; s. 37, ch. 2011-4; s. 371, ch. 2011-142; s. 10, ch. 2011-235; s. 21, ch. 2012-30; s. 71, ch. 2012-96; s. 113, ch. 2014-17; s. 13, ch. 2014-40; s. 21, ch. 2014-218.
Note.Former s. 443.15.