Section 113.03. Compromise of employer liability.

 

(1)  Under s. 108.10 (8) , Stats., the department may compromise the liability of any employer as established in any final determination, decision or action, together with any subsequent collection costs, if:

(a) The employer makes a sworn application for the compromise of the employer's liability to the department, including a financial statement if requested, in such form as the department prescribes;

(b) The employer is not a government unit;

(c) The employer is not the debtor in a case under the United States bankruptcy code with respect to any liability under ch. 108 , Stats. , which is not dischargeable in bankruptcy unless:

1. In a case under chapter 7 of the bankruptcy code, there are insufficient assets to pay the liability in full under with the statutory order of distribution; or

2. In a case under chapter 11 or 12 of the bankruptcy code, the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the employer and there are insufficient assets to pay the liability.

(d) With respect to an employer that is a nonprofit organization and whose liability or any part of whose liability was incurred while subject to reimbursement financing status under s. 108.151 (2) , Stats., the employer's assurance of reimbursement has either been applied to the liability or the application for compromise provides for such assurance; and

(e) The department finds that the employer is unable to pay the full amount of the contributions or payments in lieu of contributions, interest, penalties and costs, except, with respect to an employer still in the same business or operation as when the liability sought to be compromised was incurred:

1. The employer's application for compromise must offer payment in an amount not less than the unpaid contributions or unpaid payments in lieu of contributions, including any contributions owed as a successor under s. 108.16 (8) (f) , Stats.;

2. The required payment of all interest, penalties or costs would pose an immediate threat to the financial viability of the employer; and

3. Current contributions or payments in lieu of contributions are being paid.

(2)  If the conditions of sub. (1) are satisfied, the department shall determine the amount that the employer is able to pay and may issue an acceptance of the application for compromise in the determined amount.

(3)  Notwithstanding the exception in sub. (1) (e) , the department may compromise unpaid contributions on wages for domestic service arising under s. 108.02 (13) (d) , Stats., for any time period prior to the effective date of the existence of a fiscal agent or fiscal intermediary under s. 46.27 (5) (i) , Stats.

(4)  Notwithstanding sub. (1) (e) , in determining the amount of the accepted compromise, the department may consider whether:

(a) Any part of any interest liability was incurred as a result of undue delay on the part of the department such that there is valid reason to compromise the interest liability.

(b) In the opinion of counsel for the unemployment compensation division, the employer could have raised valid legal defenses of estoppel or laches against the initial determination(s).

History: Cr. Register, February, 1994, No. 458 , eff. 3-1-94.