Division of Employment & Training v. Moen

767 P.2d 1230, 12 Brief Times Rptr. 1849, 1988 Colo. App. LEXIS 444, 1988 WL 141427
CourtColorado Court of Appeals
DecidedDecember 29, 1988
DocketNo. 88CA0281
StatusPublished
Cited by1 cases

This text of 767 P.2d 1230 (Division of Employment & Training v. Moen) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Division of Employment & Training v. Moen, 767 P.2d 1230, 12 Brief Times Rptr. 1849, 1988 Colo. App. LEXIS 444, 1988 WL 141427 (Colo. Ct. App. 1988).

Opinion

HUME, Judge.

Division of Employment and Training, petitioner, seeks review of a final order of the Industrial Claim Appeals Office (Panel) which held that services performed by Grant L. Moen for Western Farm Bureau Life Insurance Company (Western) did not constitute employment for purposes of determining Western’s liability for unemployment compensation tax. We affirm.

Moen performed services as an insurance agent for Western from May 1, 1985, through July 1986. Western paid each agent a commission based on a percentage of premiums received on policies he sold (percentage commissions). In addition, Western also allowed new agents to participate in an optional 24-month finance plan (the Plan), which provided that participating agents were eligible for additional remuneration in the form of a training allowance, if certain requirements were met.

In order to qualify for the training allowance, an agent needed to fulfill two monthly requirements. First, he had to submit three completed customer applications for life insurance policies. Second, he was required to have at least one life insurance policy issued to a customer in each month after the first month of the agent’s association with Western.

If the submission and issuance requirements were met, Western then determined the agent’s actual training allowance using a formula based on his Net Annualized First Year Commission (NAFYC), his contractually chosen base maximum training allowance, and his monthly percentage commissions. The NAFYC represented the cumulative commissions earned by the agent, and was calculated each month as a measure of his efforts.

The Plan schedule set forth a minimum NAFYC which the agent must meet or exceed in order to receive a training allowance, as well as the maximum base training allowance for which the agent had contracted. Over the 24-month period of the Plan, the minimum required NAFYC figure increased monthly, and as it increased, the maximum base training allowance decreased.

Unless the agent’s NAFYC calculated for any given month met the minimum [1232]*1232NAFYC required by the schedule, he did not receive any training allowance for that month. However, if the agent met the minimum required NAFYC, and if he had fulfilled the submission and issuance requirements, then he would be entitled to receive a training allowance. The amount of the actual training allowance entitlement was determined by subtracting one-half of his percentage commissions for a given month from the maximum base training allowance for that month. Thus, the total compensation paid to an agent in any month consisted of his percentage commissions for that month and any monthly training allowance he was eligible to receive.

After a tax liability hearing, the hearing officer concluded that, except for July 1986, Moen had been under covered employment for the duration of his contract with Western pursuant to Colo.Sess. Laws 1983, ch. 83, § 8 — 70—103(11)(Z) at 435; § 8-70-103(1l)(q), C.R.S. (1986 Repl. Vol. 3B); and § 8-70-103(10)(a), C.R.S. (1986 Repl.Vol. 3B). The hearing officer accordingly ordered Western to pay unemployment compensation taxes as Moen’s employer.

On appeal, the Panel concluded that the hearing officer’s ultimate factual findings and conclusions were not supported by the evidence, and reversed the hearing officer’s decision. Based upon its interpretation of the applicable statutory and contractual provisions, the Panel concluded that for tax liability purposes the services performed by Moen were not employment pursuant to Colo.Sess. Laws 1983, ch. 83, § 8 — 70—103(11)(Z) at 435, prior to May 28, 1986, and were not employment after May 28, 1986, pursuant to § 8-70-103(ll)(q), C.R.S. (1986 RepLVol. 3B). In view of these conclusions, the Panel did not consider the hearing officer’s determination that Moen’s services constituted employment under § 8-70-103(10)(a), C.R.S. (1986 Repl. Vol. 3B).

I.

Petitioner contends that the Panel erred as a matter of law in concluding that Moen was not in covered employment prior to May 28, 1986. Petitioner argues that, although Moen’s training allowance was not related to the number of hours he worked, neither was it directly related to his sales or other output and that, therefore, Moen was in covered employment pursuant to Colo.Sess. Laws 1983, ch. 83, § 8-70-103(11X0 at 435, from April 1985 through May 28, 1986. We disagree.

Pursuant to Colo.Sess. Laws 1983, ch. 83, § 8-70-103(ll)(Z) at 435, employment does not include services by an individual as an insurance agent or insurance solicitor if:

“(I) All the remuneration, whether or not paid in cash, for the performance of such services is directly related to sales or other output, including the performance of services, instead of the number of hours worked; and
“(II) The services are performed pursuant to a written contract between such person and the person for whom the services are performed and such contract provides that the person shall not be treated as an employee with respect to such services for federal tax purposes.”

This statute was in effect during Moen’s tenure as a Western agent from May 1985 through May 28, 1986. It was repealed effective May 28, 1986, when § 8-70-103(ll)(q), C.R.S. (1986 RepLVol. 3B) became effective. See Colo.Sess.Laws 1986 ch. 74 at 541, 547.

Petitioner has not contested the Panel’s determination that the requirement of § 8 — 70—103(11)(J )(II) was satisfied by Moen’s written contract with Western. Consequently, the only issue in dispute is whether Moen’s remuneration for the performance of his services during this time frame was “directly related to sales or other output, including the performance of services, instead of the number of hours worked” pursuant to § 8-70-103(ll)(Z )(I). We agree with the Panel that it was.

Here, Moen’s eligibility for, and amount of, the allowance was directly determined by his performance in soliciting applications and selling insurance policies. Ab[1233]*1233sent compliance with his contractual performance requirements, Moen could not qualify for the allowance. If he did fulfill these requirements, Moen’s actual compensation was determined by computing the value of his services rendered to Western during each month. Consequently, because we conclude Moen’s commissions and training allowance fell within the ambit of Colo.Sess.Laws 1983, ch. 83, § 8-70-103(ll)(Z )(I) at 435, we find no error in the Panel’s conclusion that he was not in covered employment prior to May 28, 1986, for tax liability purposes.

II.

Petitioner also contends that the Panel erred in concluding that Moen was not in covered employment after May 28, 1986. Petitioner argues that Moen’s training allowance was a salary, advance, or other type of fixed periodic payment, and therefore, his services were not performed for remuneration solely by way of commission. We again disagree.

Section 8 — 70—103(ll)(q), C.R.S. (1986 RepLVol. 3B), which became effective May 28, 1986, provides that “employment” does not include:

“Service performed by an individual for a person as an insurance agent or an insurance solicitor, if all such service performed by such individual for such person is performed for remuneration solely by way of commission.”

The term “commission” has not been defined in the Colorado Employment Security Act. However, § 8-70-103(ll)(q), C.R.S. (1986 RepLVol.

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Bluebook (online)
767 P.2d 1230, 12 Brief Times Rptr. 1849, 1988 Colo. App. LEXIS 444, 1988 WL 141427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-employment-training-v-moen-coloctapp-1988.