Colorado Division of Employment v. Accord Human Resources, Inc.

2012 CO 15, 270 P.3d 985, 2012 Colo. LEXIS 104, 2012 WL 610983

• Court: Supreme Court of Colorado
• Decided: February 27, 2012
• Docket: 10SC419
• Status: Published

Opinions

Justice EID

delivered the Opinion of the Court.

{1 Petitioner Accord Human Resources, Inc. ("Accord HR") is a professional employer organization that transacts business in Colorado along with four related entities. In 2004, Accord HR transferred a portion of its Colorado employees to another Accord entity with a lower unemployment tax rate and, in doing so, reduced its unemployment tax burden. Subsequently, the Colorado Division of Employment and Training ("Division") determined that, pursuant to section 8-70-114(1), C.R.S. (2011), it had authority to treat the various Accord entities as one entity for purposes of assessing unemployment taxes, thus erasing any tax advantage that could be gained through the employee transfer. Under this rationale, the Division issued a delinquent tax notice to Accord HR.

T2 Accord HR appealed, and the hearing officer reversed. The hearing officer concluded that each of the five Accord entities was an "employer" entitled to a separate "employer" tax account. The hearing officer further determined that section 8-70-114(1), which provides that "[alll individuals performing services within this state for any employing unit that maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit," applied only to the status of individuals for benefits purposes, not to the status of separate employers for tax purposes. The Division appealed the hearing officer's decision to the Industrial Claim Appeals Office ("ICAO"), which reversed. In its Final Order, the ICAO held that section 8-70-114(1) gave the Division the authority to combine the various employer accounts for the purposes of assessing taxes. On appeal, the court of appeals reversed the ICAO's Final Order and reinstated the hearing officer's decision.

13 We now affirm the court of appeals. We conclude there is nothing in the language of section 8-70-114(1) that gives the Division authority to collapse separate employer accounts into a single employer account for purposes of assessing unemployment taxes. The statute simply states under what cireum-stances individuals will be deemed to be employed by a single employing unit for purposes of paying benefits.

I.

14 Accord HR is a professional employer organization operating in approximately forty-five states, including Colorado. Four other entities related to Accord HR-Accord Human Resources of New York, Inc.; Accord Human Resources of California, Inc.; Accord Human Resources of California II,

Inc.; and Accord Human Resources of Colorado, Inc. ("Accord CO")-also transact business in Colorado.

5 The parties do not dispute that each of the Accord entities was an "employer" as defined by section 8-70-113(1)(a)(II), C.R.S. (2011). In 2004, the Division assigned each of the Accord entities a separate employer account and tax rate, and issued separate Notices of Employer Tax Rate to each of the Accord entities, Accord HR was assigned an unemployment tax rate of 3.82 percent and Accord CO was assigned a rate of 2.52 percent. During the first quarter of 2004, Accord HR transferred between 340 and 481 of its employees, approximately 57 percent of Accord HR employees in Colorado, to Accord CO.¹ Accord CO then paid unemployment taxes on the transferred employees' wages according to the tax rate assigned to Accord CO. As a result of the transfer, Accord HR's unemployment taxes decreased.

1 6 In 2007, the Division issued a Liability Determination (the "Determination") to Accord HR assessing back unemployment taxes and interest. In the Determination, the Division assigned the Accord entities one blended tax rate for all five entities The Division concluded that section 8-70-114(1) authorized the Division to collapse the five Accord entities' accounts and combine their unemployment tax rates. By combining the account numbers and rates of the five Accord entities, the Division calculated that Accord HR owed in exeess of $500,000 in unemployment taxes.

17 Accord HR appealed the Determination. On appeal, a hearing officer reversed the Determination and the Division's assessment of delinquent unemployment taxes. The hearing officer held that each of the Accord entities was an "employer" under seetion 8-70-113(1)(a)(ID), and, therefore, required separate employer accounts and tax rates under section 8-76-108(1)(a), C.R.S. (2011). Furthermore, the hearing officer found that, contrary to the Division's claims, section 8-70-114(1) applied only to the status of individuals for benefits purposes, not to the status of separate employers for unemployment tax purposes. Therefore, the hearing officer held that the Division did not have authority to consolidate the separate employer accounts into a single employer account for unemployment tax purposes.

T8 The Division appealed the hearing officer's decision to the ICAO. The ICAO reversed the decision of the hearing officer and held that section 8-70-114(1) was not limited to benefits determinations but could be applied to employer accounts for the purposes of assessing a tax. In its Final Order, the ICAO found that because there was a connection in ownership, all of the Accord entities were separate establishments of the same employing unit and, thus, the combination was permissible.

19 Accord HR then appealed the ICAOU's Final Order. The court of appeals reversed the ICAO's Final Order and reinstated the hearing officer's decision. The court determined that section 8-70-114(1) did not authorize the Division to collapse separate employer tax accounts into a single account and assess taxes retroactively based on elements of common control or ownership. Because each of the individual Accord entities met the definition of employer under section 8-70-113(1)(a)(I1), the court held that the Division was required to maintain a separate employer tax account for each such entity. We agree and affirm.

II.

110 The Colorado Employment Security Act, sections 8-70-101 to -82-105, C.R.S. (2011) ("CESA"), establishes an unemployment insurance fund ("Fund") financed by employer-paid premiums or taxes. Under CESA, the Division collects taxes from employers for payment into the Fund and pays benefits to eligible, unemployed individuals. CESA bifurcates these duties, with one seetion of CESA providing procedures for the calculation and collection of taxes paid by employers, and another section of CESA providing procedures for the determination of benefits paid to former employees. The distinction between the two sections of CESA is an important one.

111 Benefits are paid from the Fund to individuals who meet the eligibility criteria. §§ 8-78-101, -102, C.R.S. (2011). The benefits sections should be construed liberally in order to further the remedial and beneficent purposes of lightening the burden of unemployment on those who are involuntarily unemployed. § 8-70-102; Colo. Div. of Emp't & Training v. Hewlett, 777 P.2d 704, 706-07 (Colo.1989).

112 In contrast, only an "employer" is required to pay unemployment taxes into the Fund based on the amount of wages paid to current employees and the amount of claims made by former employees. §§ 8-76-102, -108, C.R.S. (2011). Because the payments made by employers are a tax, the taxing section of CESA will be strictly construed. See Cottrell Clothing Co. v. Teets, 139 Colo. 558, 342 P.2d 1016 (1959), Washington Cnty. Bd. of Equalization v. Petron Dev. Co., 109 P.3d 146, 150 (Colo.2005). "When construing tax provisions, we do not extend the statute's operation beyond its clear import, or deprive the taxpayer of a legitimate favorable construction of the statutory or regulatory provision at issue." Washington Cnty. Bd. of Equalization, 109 P.3d at 150.

13 Section 8-76-108(1)(a) states that the Division "shall maintain a separate account for each employer" and credit that account with that employer's taxes. The Division assigns each account an experience rating based on the amount of benefits paid to former employees of the employer. § 8-76-103. The employer's experience rating and the overall wages that an employer pays in Colorado are used in a formula to determine an employer-specific tax rate. §§ 8-76-102, - 108.

Because an employer's overall liability to the Fund is, in part, based on the number of unemployment claims filed against it, it follows that an employer may have a lower tax rate if it has very few or no unemployment claims filed against it. In this case, Accord HR, an entity with a higher tax rate, transferred employees to Accord CO, an entity with a lower rate, thus reducing Accord HR's unemployment tax burden. The Division contends that it had authority under section 8-70-114(1) to combine the various employer accounts held by the Accord entities in order to erase the tax advantage Accord HR obtained by transferring the employees. We disagree.

115 Section 8-70-114(1) provides that "[alll individuals performing services within this state for any employing unit that maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of articles 70 to 82 of this title." § 8-70-114(1) (emphasis added). The Division contends that section 8-70-114(1) authorizes it to combine employer tax accounts into a single "employing unit" account for the calculation of taxes. We find the Division misinterprets section 8-70-114(1) based on its language and terms of art defined by the legislature.

1 16 The relevant statutory term for evaluating unemployment tax liability is "employer," not "employing units." As noted above, only "employers" pay into the Fund, and the Division is required to maintain separate accounts where each "employer|[']s" unemployment taxes are received. Thus, the fact that an "employing unit" operating "separate establishments" shall be deemed a single "employing unit" under section 8-70-114(1) does not advance the Division's argument.

117 The statute's language demonstrates that the legislature intended to draw a distinction between "employing unit," "employer," and "separate establishment." An "employing unit" is an extremely broad term used to describe virtually any individual or organization that employs anyone in the state. § 8-70-114(1)² "Employers" are a subset of "employing units" that meet additional qualifications, such as paying a certain amount of wages. § 8-70-113(1)(a)(ID)³ A "separate establishment" is not defined by the statute, but in context the phrase suggests that an "employing unit" may operate two or more separate establishments but still retain its character as a single "employing unit."

1 18 We have held that "the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings." Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo.2008). As noted above, only "employers," not "employing units," are required to pay taxes, and the Division maintains separate accounts for only "employers," not "employing units." Thus, the fact that an "employing unit" operating "separate establishments" shall be deemed a "single employing unit" does not give the Division authority to combine separate employer accounts into a single employer account. Such a logical leap is not supported by the statute's language.

19 Moreover, section 8-70-114(1) speaks only to how individuals are to be treated for benefit purposes, not to how taxes are to be assessed by the Division. Specifically, the statutory language states that "[alll individuals" who have worked for employing units with separate establishments "shall be deemed to be employed by a single employing unit for all the purposes of article 70 to 82 of this title." § 8-70-114(1). The language of section 8-70-114(1) thus addresses how employees are to be classified for receiving benefits, not on how employers' taxes are to be assessed. See, eg., Giacopelli v. Indus. Comm'n, 622 P.2d 111, 112 (Colo.App. 1980) (where claimant had worked for one hotel and then another, remand was appropriate to determine if both establishments were a "single employing unit" and, if so, whether transfer from one to the other was a "less desirable transfer" qualifying claimant for benefits). The Division stresses that seetion 8-70-114(1)'s classification of individuals as having worked for a single "employing unit" applies "for all purposes." But again, the problem with the Division's argument is that section 8-70-114(1) does not assess taxes with regard to classification of individuals as having worked for single employing units; in other words, tax assessment is not a "purpose" to which section 8-70-114(1) could apply.

120 The Division also argues that it is unwise, from a public policy perspective, to permit an employer to shift employees from an entity with a higher tax rate to one with a lower rate to lower its unemployment tax burden-a practice known as "dumping." The Division notes that, in 2004, Congress passed the SUTA ⁴ Dumping Prevention Act, mandating that states amend their employment compensation laws to prevent this practice. 42 U.S.C. § 508(k) (2006). Colorado adopted such a law in 2005. See § 876-104, CRS. (2011). However, this law was not enacted at the time Accord HR transferred a portion of its Colorado employees to Accord CO, and both parties agree that the new statute does not apply to the case here. We decline the Division's invitation to apply the legislature's policy determination prior to its adoption of applicable statutory language, especially given our background principle that tax statutes are to be construed narrowly. Washington Cnty. Bd. of Equalization, 109 P.3d at 150. Further, we make the common sense observation that had the Division already possessed the authority to combine various employer accounts under section 8-70-114(1), there would have been no reason for the legislature to have acted in 2005. See Leonard v. McMorris, 63 P.3d 323, 331 (Colo. 2003) ("We presume the General Assembly knows the pre-existing law when it adopts new legislation or makes amendments to pri- or acts.").

121 Finally, it is significant that the authority provided to the Division in the 2005 statute is far narrower than the authority it claims to possess under section 8-70-114(1). In this case, the Division takes the position that section 8-70-114(1) permits it to combine employer accounts whenever it can be shown that the entities share common ownership and control.⁵ By contrast, under the 2005 statute, if there has been a transfer of "trade or business" from one employer to another employer that share common ownership, the general rule is that the unemployment experience rating of the predecessor employer is transferred to the successor employer. § 8-76-104(2)(b) (f "an employer transfers all or a portion of its trade or business to another employer and, at the time of the transfer, there is substantially common ownership, management, or control of the two employers, the unemployment experience attributable to the predecessor employer shall be transferred to the successor employer"). The Division may combine employer accounts only if it is shown that the transfer was accomplished for the purpose of avoiding tax lability:

If, following a transfer experience, the division determines that the purpose of the transfer of the trade or business was solely or primarily to obtain a reduced liability for contributions, the division shall combine the experience rating accounts of the employers into a single account and shall assign a single rate to the account.

Id. Therefore, under the 2005 statute, if there has been a transfer of trade or business from one "employer" to another "employer" with substantially common ownership, the experience rating of the predecessor employer transfers to the sue-cessor employer, unless the transfer was accomplished for the purpose of avoiding unemployment taxes, in which case the Division is authorized to combine employer accounts. If we were to adopt the Division's interpretation of section 8-70-114(1), then, we would have to find that the legislature granted broad authority to the Division to combine employer accounts under section 8-70-114(1), and then in 2005 impliedly repealed that authority through new legislation that expressly authorized a far more limited power to combine employer accounts. Given our general relue-tance to find that statutes have been impliedly repealed, Frank M. Hall, Inc. v. Newsom, 125 P.3d 444, 451 (Colo.2005), we decline to adopt such an interpretation in this case.

122 In sum, we conclude there is nothing in the language of section 8-70-114(1) that gives the Division authority to collapse separate employer accounts into a single employer account for purposes of assessing unemployment taxes. The statute simply describes circumstances where individuals will be deemed to be employed by a single employing unit for paying benefits-and nothing more. Applying this reasoning here, section 8-70-114(1) did not provide the Division with the authority to consolidate the various employer accounts held by the Accord entities ⁶ for purposes of assessing taxes.

IIL.

123 For the reasons stated above, we affirm the holding of the court of appeals.

Justice HOBBS dissents. Justice MARQUEZ does not participate.

1 . The record does not contain any findings of fact as to why Accord HR transferred employees to Accord CO.

2 . "Employing unit" is defined as "any individual or type of organization, including any partnership, limited liability partnership, limited liability company, limited liability limited partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or legal representative of a deceased person, who employs one or more individuals performing services within this state." § 8-70-114(1).

3 . Specifically, an "employer" is an employing unit that, after December 31, 1998, either paid wages during any calendar quarter totaling one thousand five hundred dollars or more or employed at least one employee for any portion of a day for twenty weeks during the current or preceding calendar year. § 8-70-113(1)(a)(II).

4 . SUTA stands for State Unemployment Tax Act.

5 . Because we find that section 8-70-114(1) does not give the Division authority to consolidate separate employer accounts under a single employer account for purposes of assessing unemployment taxes, we need not determine whether the Division properly applied principles of common ownership and control in deciding to consolidate the accounts.

6 . The Division also argues that it was error for it to assign each Accord entity a separate employer account in the first instance. Because the Division did not raise this issue below, we do not address it here. Beauprez v. Avalos, 42 P.3d 642, 649 (Colo.2002) (an issue not presented to or raised at the trial court will not be considered on appeal).