16. Procedures/Appeals

Zuber v Ameritech Publishing, Inc – 16.72

Zuber v Ameritech Publishing, Inc
Digest no. 16.72

Section 32a(2)

Cite as: Zuber v Ameritech Publishing Inc, unpublished opinion of the Michigan Employment Security Board of Review, issued January 29, 2004 (Docket No.  2002 BR 171048 (B2003-09495).

Appeal pending: No
Claimant: Kathy L. Zuber
Employer: Ameritech Publishing, Inc.
Docket no.: B2003-09495-171048
Date of decision: January 29, 2004

View/download the full decision

BOARD OF REVIEW HOLDING: A protest or appeal is timely if received before midnight of the deadline date.

FACTS: The determination was issued May 6, 2003. Employer faxed its appeal June 5, 2003 at 4:04 p.m. Central time. The Agency issued a redetermination August 27, 2003. Employer appealed the redetermination by fax on September 26, 2003 at 4:13 p.m. Central time. The Agency stamped employer’s appeal as received on September 29, 2003; there was also a stamp indicating the fax was received September 26.

DECISION: The Agency timely received both the employer’s protest of the determination and the employer’s appeal of the redetermination.

RATIONALE: Claimant asserted the protests were untimely because they were submitted after the close of business. Section 32a states in relevant part that a protest of a determination or an appeal of a redetermination must be filed with the Agency “within 30 days after the mailing or personal service.” The Act does not define the word “day.” Rule 105(2) of the Rules of Practice states: “The calendar day on which compliance is required shall be included in the computation of time.” Webster’s Ninth New Collegiate Dictionary, defines “day” in relevant part: “the mean solar day of 24 hours beginning at mean midnight.” We find the word should be given its ordinary meaning.

If the particular protest or appeal is in fact received on or before the date due, then the protest or appeal will be treated as timely. However, the Board is not mandating the Board or Agency to keep fax machines on 24 hours. Parties assume the risks associated with their choice of media. A party attempting a last minute appeal may find the fax number busy or turned off. Attempt does not equal receipt.

Digest Author: Board of Review (original digest here)
Digest Updated:

02. Employer Liability, Tax Rate, Successorship

MESC v NL Industries (USA), Inc – 2.09

MESC v NL Industries (USA), Inc
Digest no. 2.09

Sections 21, 32a

Cite asMESC v NL Industries (USA), Inc, unpublished opinion of the Oakland County Circuit Court, issued January 5, 1994 (Docket No. 93-459745-AE).

Appeal pending: No
Claimant: N/A
Employer: NL Industries (USA), Inc.
Docket no.: L90-10851-2103
Date of decision: January 5, 1994

View/download the full decision

CIRCUIT COURT HOLDING: Where the MESC fails to issue rate determinations and, instead assigns temporary rates by means of quarterly contribution reports, for a period of years, those so-called temporary rates become final if the employer is not notified of a contribution rate within six months of the computation date (June 30).

FACTS: In 1985, MESC issued determination of successorship. No rate determination was issued, but employer’s quarterly contribution reports showed rate of 2.7%. Sometimes a “T” appeared before the rate. Employer paid the 2.7% rate until October 27, 1989, at which time the MESC issued rate determinations covering 1985-89 of 9.1%, 8.7%, 7.8%, 7.3% and 6.6%. MESC’s position was that the quarterly reports were not rate determinations and not subject to the finality provisions of Section 32a(2). Further, the statute and Administrative Rules do not provide for temporary rates and therefore, the rates shown on the quarterly contribution statements could not become final rates under Section 21(a).

DECISION: Decision of MES Board of Review affirmed. (Later MESC appeal to Court of Appeals withdrawn.)

RATIONALE: Under Section 21(a), employers are entitled to notification of contribution rate no later than six months after the computation date. This notification is mandatory, not discretionary. The computation date under Section 18(a) is June 30 of each year. Therefore, employers must be notified of rate by December 31 of each year. Otherwise the finality provisions of Section 32a(2) apply. A statement of a rate such as that on the quarterly contribution report is a “statement” of a rate determination pursuant to Section 21(a).

Digest Author: Board of Review (original digest here)
Digest Updated: 7/99