Texas Workforce Commission Rule 13 Tax Coverage Hearings
(40 TAC 815.113)
The purpose of Rule 13 tax hearings is to afford employing units a hearing in any case involving tax liability or any question relating to contributions or reimbursements. Procedurally, the hearings are similar to those conducted pursuant to the Texas Payday Law and Texas Child Labor Law. Upon conclusion of the hearing, the attorney prepares a proposed decision for the Commissioners' consideration. The proposal includes a statement of facts, conclusions, and decision. The Commissioners of the Texas Workforce Commission consider and decide the cases at the regularly scheduled docket meetings.
A request for a Commission Rule 13 tax hearing must also be in writing. It should be sent to the local Texas Workforce Commission Tax Office that is responsible for your employing unit tax account.
Commission Rule 13
|Section 815.113 Commission Hearings Involving Coverage and Contributions or Reimbursements.|
|(a)||In all situations not specifically provided for in the Act or in the rules of the Agency, a hearing may, at the discretion of the Commission, be afforded an employing unit upon its written request, in any case involving tax liability or any question relating to contributions or reimbursements. Hearings under this section shall continue to be termed Rule 13 Hearings. The written request for hearing may be filed by hand delivery, mail, common carrier, facsimile (fax) transmission, or other method approved by the Agency in writing, at a local tax office or the Texas Workforce Commission, 101 East 15th Street, Austin, Texas 78778-0001.|
|(b)||The Commission may on its own motion set a hearing to secure the facts to establish the status of any individual or employing unit under any section of the Act.|
|(c)||The Commission may designate a representative to preside over the hearing. Hearings shall be conducted by telephone conference call unless the supervisor of the hearing officers or the supervisor's designee determines that an in-person hearing is necessary. The hearings will be scheduled and, if an in-person hearing, held at a place designated by the supervisor of the hearings officers or the supervisor's designee in accordance with paragraphs (1)-(3) of this section and the applicable provisions in this chapter.|
|(d)||The Commission, following each hearing, shall issue a decision, which shall resolve the questions involving tax liability or any question relating to contributions or reimbursements which arose at the hearing. Copies of written decisions of the Commission shall be furnished the parties to the hearings.|
|(e)||(e) A decision of the Commission shall become final 30 days after the date of mailing unless, within the 30 day-period, the proceeding is either reopened by a Commission order or by a party to the proceeding filing a written motion for reconsideration in accordance with the provisions of subsection §815.17(g) of this chapter (relating to General Rules for Both Appeal Stages). The motion for reconsideration is sent to the address listed in the decision. A decision is not binding on a person who was not a party to a proceeding conducted under this section.|
Instructions for Rule 13 Telephone Hearings
|1.||Special Hearings Department staff attorneys conduct informal fact-finding hearings on tax liability questions under the authority of Texas Workforce Commission Rule 13 (40 TAC 815.113). The Special Hearings Attorney will explain the law and the hearing procedures before the hearing begins, and will then give each side a chance to ask questions. Following this hearing, TWC's three Commissioners and their staff will review the testimony and documents presented at the hearing. A written decision based on the weight of the evidence will be issued pursuant to the Texas Unemployment Compensation Act [Recodified effective September 1, 1993, Title 4, Subtitle A, Labor Code, Vernon's Texas Code Annotated].|
|2.||Telephone Hearing: This hearing will be conducted by telephone. Select a quiet location to call from. If you are calling from a public pay phone, check to be sure that the telephone you are using can receive incoming calls; many public phones cannot.|
|3.||Telephone Call-In Instructions: The date and time for the hearing is shown on the Notice of Hearing. On the scheduled day and time, you should place a call to the Special Hearings Department at the telephone number given on the Notice of Hearing. Please call promptly at the time scheduled.
Give your telephone number. When you call, tell the clerk the telephone number that you are calling from. The Special Hearings Attorney will call you back at that telephone number to establish a telephone conference call. The Special Hearings Attorney will then ask for the telephone numbers where your witnesses and representative, if any, can be reached.
Set Aside Enough Time For The Hearing.
|4.||Interpreters: Participants requiring interpreter services for foreign language or communication disabilities should notify the Special Hearings Department as soon as possible. Specify the language needed. The TWC provides qualified interpreters.|
|5.||Representative: The Special Hearings Attorney will help parties develop the facts in the case so a representative is not required. However, you may have an attorney or another person represent you, at your own expense.|
|6.||Witnesses: At the hearing, you may present witnesses to provide relevant information to support your position. Choose witnesses with direct, firsthand information about the issue or issues in the case. When appropriate, the Special Hearings Attorney may limit unnecessary testimony or may exclude witnesses whose testimony is needlessly repetitive. Arrange to have your witnesses available throughout the hearing.|
|7.||Documents: Your choice of documents to present depends, in part, on the issues in your case. Plan to present a copy of every document supporting your position.
Send copy to Special Hearings Attorney: You must promptly mail or fax a copy of every document you want to present in the hearing to the Special Hearings Attorney in plenty of time to allow the attorney the opportunity to review the documents before the hearing. Send the documents by mail or fax as explained in item 15.
Send copy to the Other Side: Promptly mail or deliver the same documents you send to the Special Hearings Attorney to the other side at that party's address as shown on the notice of hearing.
Keep one copy of each document for yourself, and have it with you during the hearing.
|8.||Affidavits: One document sometimes presented is an "affidavit," a sworn, notarized statement by a person unavailable to give testimony in person at the hearing. While an affidavit may be useful in some situations, it is a poor substitute for live testimony as it is not as persuasive as live testimony.|
|9.||Subpoenas: After identifying the witnesses you need, request their voluntary participation in the hearing. Witnesses who refuse to participate voluntarily may be compelled by subpoena. A subpoena may also be useful to compel the production of essential documents. The Special Hearings Attorney decides whether to issue a subpoena.
If you believe a subpoena is necessary to obtain a witness or document for your case, submit a written request to the Special Hearings Attorney as soon as possible. In your request, it is important to:
|10.||Postponement Requests: Notify the Special Hearings Department in writing immediately if there is a scheduling conflict with the hearing. Postponement requests must be in writing (sent by mail or fax) and must set forth the reason(s) for the request.
The Special Hearings Department will postpone or reschedule the hearing only for compelling and unavoidable circumstances. After reviewing the request, the Special Hearings Department will inform the employer, the Tax Department, and the witnesses, if any, of its postponement decision.
|11.||Non-Appearance: Failure to appear without notice and explanation on the scheduled date and time will be treated by the Special Hearings Department as a default. The final Tax Department determination stands and becomes the Commission's decision in this case.|
|12.||Withdrawal of Hearing Request: To request a withdrawal, the employer must mail or fax the written withdrawal request to the Special Hearings Department.|
|13.||Resolution Prior To Hearing: At any time before the scheduled hearing date, an employer may attempt to resolve the case by meeting with the accounts examiner and/or hearing coordinator from the Tax Department to discuss the matter; however, the Special Hearings Department will not be involved in any of these discussions prior to the hearing. If an employer can provide additional information, especially information specifically requested by the Tax Department, it is possible that these new facts may result in an adjustment to the Tax Department's original determination. It is also possible, in some cases, for an employer to be offered an installment payment plan to facilitate liquidation of unpaid taxes, interest, and/or penalties. If an agreement is reached prior to the hearing, the Tax Department will adjust its original determination according to that agreement and process applicable changes to the employer's tax account.|
|14.||Questions: If you have additional questions about the procedures used in a tax liability hearing, please contact the Special Hearings Attorney. Basic rules of fairness prevent the Special Hearings Attorney from discussing the facts or merits of a specific case unless everyone involved can participate. If your question is about matters other than the facts, you can reach the Special Hearings Attorney at: 1 (800) 687-4243.
Because the Special Hearings Department and the Tax Department are not connected in any way, it is unlikely the Special Hearings Attorney will be able to answer specific tax questions. Hold your questions about tax matters until the actual hearing or direct them to the TWC Tax Department or your local tax office.
|15.||Mail or Fax Instructions: Letters or documents may be faxed to the Special Hearings Department at:
(512) 463-9318Letters or documents may be mailed to the Special Hearings Department at the following address:
Attention: (Name of Special Hearings Attorney)Important: Your letter, or documents, whether sent by mail or fax, also must include the employer's TWC tax account number.
Special Hearings Department
Texas Workforce Commission
101 E. 15th Street
Austin, Texas 78778-0001
Employer Appeal of Rule 13 Decisions
|If you disagree with this Commission tax liability decision issued under Commission Rule 13, you have three methods of appeal available:|
|1.||Motion for Reconsideration with the Commission.
Commission Rule 815.113(j) provides that any decision of the Commission shall become final thirty (30) days after the date of mailing thereof, unless, within such thirty (30) days, the appeal is reopened by Commission order or a party to the appeal files a written Motion for Reconsideration.
A Motion for Reconsideration may be filed by writing directly to Special Hearings Department, Texas Workforce Commission, 101 E. 15th Street, Austin, Texas 78778-0001. The Motion for Reconsideration will not be granted unless each of the following three criteria is met: (1) there must be an offering of new evidence which was unavailable at the initial hearing; (2) there must be a compelling reason why the evidence was not presented earlier; and (3) there must be a specific explanation of how consideration of the evidence would change the outcome of the case. All three criteria must be included in the Motion for Reconsideration.
There are two ways that an employer may obtain judicial review of a Rule 13 decision under the provisions of the Texas Unemployment Compensation Act [Recodified effective September 1, 1993, Title 4, Subtitle A, Labor Code, Vernon's Texas Code Annotated]. However, decisions of the Commission issued under Rule 13 are not subject to judicial review under the Texas Administrative Procedure, Texas Government Code, Sec. 2001.224.
It is not necessary to file a Motion for Reconsideration with the Commission before seeking judicial review of this Commission decision.
|2.||Employer civil suit for a refund or adjustment of unemployment taxes paid.
The employer may pay contributions that result from the Rule 13 decision and then pursue a court appeal. Section 213.072 of the Texas Unemployment Compensation Act provides that an employer may make application to the Commission for a refund or adjustment of contributions previously paid, if such application is made within three years of the date the contributions allegedly were due. Under this section, if the employer's application for a refund or adjustment is denied by the Commission, the employer may bring civil suit against the agency within one year of the date of such denial. Such suit is by trial de novo in a court of competent jurisdiction in Travis County, Texas.
|3.||Commission civil suit for delinquent unemployment taxes.
The Texas Unemployment Compensation Act provides that if, after notice, the employer fails or refuses to pay unemployment contributions imposed by the Commission Tax Department as a result of a Rule 13 decision, the Commission may bring suit against the employer for collection of the contributions in a district court in Travis County, Texas.
Effective September 1, 1989, the Commission is also allowed to make administrative assessments to collect unpaid unemployment contributions, plus penalties. An administrative assessment is served on the employer and becomes final unless it is appealed to a district court in Travis County, Texas, within 30 days from the date it is served. An assessment that becomes final has the same effect as a district court judgment. See generally, Sections 213.031 - 213.036 of the Act, as amended.