Larry
Fry Drywall v. Office of UC Tax Assessment Services – Pa. Cmwlth. – April 7, 2015
– unreported memorandum opinion
The
court affirmed the OUCTAS finding that the employer had wrongly considered its
employees to be independent contractors.
The Office assessed the employer ~$36,000 for unpaid UC taxes.
“A
determination regarding the existence of an employer-employee relationship is a
question of law that depends on the unique facts of each case.” Kurbatov v.
Dep’t of Labor & Indus., Office of Unemployment Comp., Tax Servs., 29
A.3d 66, 70 (Pa. Cmwlth. 2011). “[T]here is a presumption in the [UC] Law that
an individual receiving wages is an employee and not . . . engaged in
self-employment.” Training Assocs. Corp. v. Unemployment Comp. Bd. of Review,
101 A.3d 1225, 1234 (Pa. Cmwlth. 2014) (quoting Pasour v. Unemployment Comp.
Bd. of Review, 54 A.3d 134, 137 (Pa. Cmwlth. 2012)).
The [UC
Law] goes very far, and properly so, and places a very heavy burden on the applicant
when it makes payment to anyone who has performed . . . services to excuse or
exempt that payment from the unemployment compensation tax. Few indeed are the
instances where that burden can be met. . . .
Kurbatov, 29 A.3d at 71 (quoting Am.
Diversified Corp. v. Bureau of Employment Sec., Dep’t of Labor & Indus., 275
A.2d 423, 426 (Pa. Cmwlth. 1971)). “This Court . . . emphasized the importance
of an employer supplying evidence to show that a claimant is engaged in
an independent business . . . .” Peidong Jia v. Unemployment Comp. Bd. of
Review, 55 A.3d 545, 549 (Pa. Cmwlth. 2012) (emphasis added).
Here,
the Department found that the employer did not furnish any of the documentation
requested by the Office to establish that its workers were independent
contractors, including any documentation showing that the workers had their own
businesses or were paying UC taxes.
“The test an employer must satisfy to overcome the
presumption of an employment relationship is simply not met here.” Peidong
Jia, 55 A.3d at 549.
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The
opinion, though not reported, may be cited "for its persuasive value, but
not as binding precedent." 210 Pa. Code 69.414.
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