Virginia Law

A. The Commission may, upon its own motion or upon application of an employing unit, and after not less than 30 days' notice in writing mailed to the last known address of such employing unit and an opportunity for hearing, make findings of fact, and on that basis, determine whether:

1. An employing unit constitutes an employer;

2. Services performed for or in connection with the business of an employing unit constitute employment for such employing unit; or

3. There has been a transfer as defined in § 60.2-536.1.

B. All testimony at any hearing pursuant to this section shall be recorded but need not be transcribed unless a petition for judicial review from such determination is filed in the manner herein prescribed. At such hearing the interests of the Commonwealth may be represented by the Office of the Attorney General. The Commissioner shall have the power to designate a special examiner to hold such hearings, and may authorize and empower such special examiner to decide any matter so heard, in which event the decision of such special examiner shall be the final decision of the Commission under this section, subject to judicial review under subsection C. The Commissioner or his designee shall promptly inform the appropriate attorney for the Commonwealth of any final decision that an employer transferred or attempted to transfer a trade or business for the primary or sole purpose of obtaining a lower unemployment tax rate, or was advised to do so.

C. Judicial review of any such determination made in subsection B may be initiated within 30 days after mailing notice of such findings and determination to the employing unit or, in the absence of mailing, within 30 days after delivering such notice and determination, in the Circuit Court of the City of Richmond. Such judicial review shall be commenced by the filing of a petition, which need not be verified but which shall state the grounds upon which a review is sought. Service of two copies of such petition upon the Commissioner shall be deemed completed service and such petition shall be filed with the clerk of the court within five days after service thereof. With its answer the Commission shall certify and file with the court all documents and papers and a transcript of all testimony taken in the matter, together with its findings of fact and decision therein. In any judicial proceedings under this article, the Commission's findings of facts, if supported by the evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Such actions shall be given preference on the docket over all other cases except cases to which the Commonwealth is a party.

D. An appeal may be taken from the decision of such court to the Court of Appeals, in conformity with Part Five A of the Rules of Supreme Court and other applicable laws. In any such proceedings for judicial review, the Commission shall be represented by the Office of the Attorney General. A determination by the Commission from which no judicial review has been commenced shall be conclusive in any subsequent judicial proceeding involving liability for taxes against the employing unit or its successor under the provisions of subdivision B 1 of § 60.2-210 and of subsection B of § 60.2-523.

Code 1950, §§ 60-58, 60-59; 1968, c. 738, §§ 60.1-70, 60.1-71; 1970, c. 104; 1977, c. 445; 1981, c. 99; 1984, c. 703; 1986, c. 480; 2005, cc. 47, 91; 2012, cc. 65, 161.

A. Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this section. For the purpose of this section, a nonprofit organization is an organization, or group of organizations, described in § 501(c) (3) of the United States Internal Revenue Code which is exempt from income tax under § 501 (a) of that Code.

B. Any nonprofit organization which, pursuant to subdivision 8 of subsection B of § 60.2-210, is or becomes subject to this title shall pay taxes under the provisions of § 60.2-511, unless it elects, in accordance with this subsection, to pay to the Commission for the unemployment fund an amount equal to the amount of regular benefits and of one-half of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, and that is for weeks of unemployment which begin during the effective period of such election.

1. Any nonprofit organization which is or becomes subject to this title may elect to become liable for payments in lieu of taxes for a period of not less than one taxable year beginning with January 1 of each year, provided it files with the Commission a written notice of its election within the thirty-day period immediately following such date.

2. Any nonprofit organization which becomes subject to this title may elect to become liable for payments in lieu of taxes for a period of not less than twelve months beginning with the date on which such subjectivity begins by filing a written notice of its election with the Commission not later than thirty days immediately following the date of the determination of such subjectivity.

3. Any nonprofit organization which makes an election in accordance with subdivision 1 or 2 of this subsection shall continue to be liable for payments in lieu of taxes until it files with the Commission a written notice terminating its election not later than thirty days prior to the beginning of the taxable year for which such termination shall first be effective.

4. Any nonprofit organization which has been paying taxes under this title may change to a reimbursable basis by filing with the Commission, not later than thirty days prior to the beginning of any taxable year, a written notice of election to become liable for payments in lieu of taxes. Such election shall not be terminable by the organization for that and the next year.

5. The Commission may for good cause extend the period within which a notice of election, or a notice of termination, shall be filed and may permit an election to be retroactive but not any earlier than January 1 of the current calendar year.

6. The Commission, in accordance with such regulations as it may prescribe, shall notify each nonprofit organization of any determination which it may make of its status as an employer and of the effective date of any election which it makes and of any termination of such election. Such determinations shall be subject to reconsideration, appeal and review in accordance with the provisions of § 60.2-500.

C. Payments in lieu of taxes shall be made in accordance with the provisions of this subsection, including either subdivision 1 or 2.

1. a. At the end of each calendar quarter, or at the end of any other period as determined by the Commission, the Commission shall bill each nonprofit organization, or group of such organizations, which has elected to make payments in lieu of taxes for an amount equal to the full amount of regular benefits plus one-half of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization.

b. If the final adjudication of a disputed claim finds the claimant totally or partially ineligible for benefits, the nonprofit organization shall be liable for any bill resulting from payments made to the claimant during or prior to the appeal process, whether made by erroneous statutory interpretation, administrative error, or incorrect wage reporting.

2. a. Each nonprofit organization that has elected payments in lieu of taxes may request permission to make such payments as provided in this paragraph. Such method of payment shall become effective upon approval by the Commission.

b. At the end of each calendar quarter, or at the end of such other period as determined by the Commission, the Commission shall bill each nonprofit organization for an amount representing one of the following:

(1) One-tenth of one percent of its total payroll for the preceding calendar year.

(2) Such percentage of its total payroll for the immediately preceding calendar year as the Commission shall determine. Such determination shall be based each year on the average benefit costs attributable to service in the employ of nonprofit organizations during the preceding calendar year.

(3) For any organization which did not pay wages throughout the four calendar quarters of the preceding calendar year, such percentage of its payroll during such year as the Commission shall determine.

c. At the end of each taxable year, the Commission may modify the quarterly percentage of payroll thereafter payable by the nonprofit organization in order to minimize excess or insufficient payments.

d. At the end of each taxable year, the Commission shall determine whether the total of payments for such year made by a nonprofit organization is more or less than the total amount of regular benefits plus one-half of the amount of extended benefits paid to individuals during such taxable year based on wages attributable to service in the employ of such organization. Each nonprofit organization whose total payments for such year are less than the amount so determined shall be liable for payment of the unpaid balance to the fund in accordance with subdivision 3 of this subsection. If the total payments exceed the amount so determined for the taxable year, all or a part of the excess may, at the discretion of the Commission, be refunded from the fund or retained in the fund as part of the payments which may be required for the next taxable year.

3. Payment of any bill rendered under subdivision 1 or 2 of this subsection shall be made not later than thirty days after such bill was mailed to the last known address of the nonprofit organization or was otherwise delivered to it, unless there has been an application for review and redetermination in accordance with subdivision 5 of this subsection.

4. Payments made by any nonprofit organization under the provisions of this subsection shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization.

5. The amount due specified in any bill from the Commission shall be conclusive on the organization unless, not later than thirty days after the bill was mailed to its last known address or otherwise delivered to it, the organization files an appeal with the Commission, setting forth the grounds for such appeal. Proceedings on appeal to the Commission from the amount of a bill rendered under this subsection or a redetermination of such amount shall be in accordance with the provisions of § 60.2-500. The decision of the Commission shall be subject to the provisions of § 60.2-500.

6. Past-due payments of amounts in lieu of taxes shall be subject to the same interest and penalties that, pursuant to § 60.2-519, apply to past-due taxes.

1974, c. 466, § 60.1-89; 1981, cc. 248, 252; 1986, c. 480.

A. In the discretion of the Commission, any nonprofit organization that elects to become liable for payments in lieu of taxes shall be required within thirty days after the effective date of its election (i) to execute and file with the Commission a surety bond approved by the Commission or (ii) to deposit with the Commission money or securities. The amount of such bond or deposit shall be determined in accordance with the provisions of this section.

B. The amount of the bond or deposit required by this section shall be a percentage, determined by the Commission, of the organization's taxable wages paid for employment as defined in subdivision 4 of subsection A of § 60.2-213 for the four calendar quarters immediately preceding the effective date of the election, the renewal date in the case of a bond, or the biennial anniversary of the effective date of election in the case of a deposit of money or securities, whichever date is most recent and applicable. If the nonprofit organization did not pay wages in each of such four calendar quarters, the amount of the bond or deposit shall be as determined by the Commission.

C. Any bond deposited under this section shall be in force for a period of not less than two taxable years and shall be renewed with the approval of the Commission, at such time as the Commission may prescribe, but not less frequently than at two-year intervals as long as the organization continues to be liable for payments in lieu of taxes. The Commission shall require adjustments to be made in a previously filed bond as it deems appropriate. If the bond is to be increased, the adjusted bond shall be filed by the organization within thirty days of the date notice of the required adjustment was mailed or otherwise delivered to it. Failure by any organization covered by such bond to pay the full amount of payments in lieu of taxes when due, together with any applicable interest and penalties provided for in subdivision 6 of subsection C of § 60.2-501, shall render the surety liable on such bond to the extent of the bond, as though the surety was such organization.

D. Any deposit of money or securities made in accordance with this section shall be retained by the Commission in an escrow account until liability under the election is terminated, at which time it shall be returned to the organization, less any deductions as hereinafter provided. The Commission may deduct from the money deposited under this section by a nonprofit organization or sell the securities it has so deposited to the extent necessary to satisfy any due and unpaid payments in lieu of taxes and any applicable interest and penalties provided for in subdivision 6 of subsection C of § 60.2-501. The Commission shall require the organization within thirty days following any deduction from a money deposit or sale of deposited securities under the provisions of this subsection to deposit sufficient additional money or securities to make whole the organization's deposit at the prior level. Any cash remaining from the sale of such securities shall be a part of the organization's escrow account. The Commission may review the adequacy of the deposit made by any organization. If, as a result of such review, it determines that an adjustment is necessary, the organization shall be required to make additional deposit within thirty days of written notice of the determination or the Commission shall return to it such portion of the deposit as it no longer considers necessary, whichever action is appropriate. Disposition of income from securities held in escrow shall be governed by the applicable provisions of the state law.

E. If any nonprofit organization fails to file a bond or make a deposit, or to file a bond in an increased amount or to increase or make whole the amount of a previously made deposit, as provided under this subsection, the Commission may terminate such organization's election to make payments in lieu of taxes and such termination shall continue for not less than the four consecutive calendar quarter period beginning with the quarter in which such termination becomes effective; however, the Commission may extend for good cause the applicable filing, deposit or adjustment period by not more than thirty days.

1974, c. 466, § 60.1-89; 1981, cc. 248, 252; 1986, c. 480.

If any nonprofit organization is delinquent in making payments in lieu of taxes as required under subsection C of § 60.2-501, the Commission may terminate such organization's election to make payments in lieu of taxes as of the beginning of the next taxable year, and such termination shall be effective for that and the next taxable year.

1974, c. 466, § 60.1-89; 1981, cc. 248, 252; 1986, c. 480.

If benefits paid to an individual are based on wages paid by more than one employer and one or more of such employers are liable for payments in lieu of taxes, the amount payable to the fund by each employer that is liable for such payments shall be an amount which bears the same ratio to the total benefits paid to the individual as the total base period wages paid to the individual by such employer bear to the total base period wages paid to the individual by all of his base period employers.

1974, c. 466, § 60.1-89; 1981, cc. 248, 252; 1986, c. 480.

A. Two or more employers that have become liable for payments in lieu of taxes, in accordance with the provisions of § 60.2-501, may file a joint application to the Commission for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. Each such application shall identify and authorize a group representative to act as the group's agent for the purposes of this section. Upon approval of the application, the Commission shall establish a group account for such employers effective as of the beginning of the calendar quarter in which it receives the application and shall notify the group's representative of the effective date of the account. Such account shall remain in effect for not less than two years and thereafter until terminated at the discretion of the Commission or upon application by the group.

B. Upon establishment of the account, each member of the group shall be liable for payments in lieu of taxes with respect to each calendar quarter in the amount that bears the same ratio to the total benefits paid in such quarter that are attributable to service performed in the employ of all members of the group as the total wages paid for service in employment by such member in such quarter bear to the total wages paid during such quarter for service performed in the employ of all members of the group.

C. The Commission shall prescribe such regulations as it deems necessary:

1. With respect to application for establishment, maintenance and termination of group accounts that are authorized by this section;

2. For addition of new members to, and withdrawal of active members from, such accounts; and

3. For the determination of the amounts that are payable under this section by members of the group and the time and manner of such payments.

1974, c. 466, § 60.1-89; 1981, cc. 248, 252; 1986, c. 480.

A. The Commonwealth of Virginia shall have the option to:

1. Treat all of its branches of government and all of its instrumentalities as one employer;

2. Treat each branch of government, judicial, executive, and legislative, as an individual employer; or

3. Treat each of its instrumentalities as an individual employer.

4. The option described herein shall be exercised by the Governor.

B. If the option contained in subdivision 1 of subsection A of this section is exercised, the Commonwealth may elect to finance benefits to its employees by either taxes, as set forth in §§ 60.2-526 through 60.2-533, or payments in lieu of taxes.

C. If the option contained in either subdivision 2 or 3 of subsection A of this section is exercised, each such individual employer may elect to finance benefits to its employees by either taxes, as set forth in §§ 60.2-526 through 60.2-533, or payments in lieu of taxes.

D. If the election to make payments in lieu of taxes is exercised, payments shall be made into the fund in an amount equivalent to the amount of regular and extended benefits paid that is attributable to service in the employ of the Commonwealth. If benefits paid to an individual are based on wages paid by more than one employer and one or more employers are liable for payments in lieu of taxes, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of § 60.2-504.

E. Payments made in lieu of taxes by the Commonwealth into the Unemployment Trust Fund shall be made at such times and in such manner as the Commission may determine and prescribe.

1971, Ex. Sess., c. 235, § 60.1-89.1; 1977, c. 330; 1979, c. 634; 1986, c. 480.

A. Any governmental entity which is an employer by virtue of subdivision 7 of subsection B of § 60.2-210 shall be permitted to join with one or more other governmental entities to form a joint account in accordance with regulations prescribed by the Commission.

B. Each governmental entity which is an employer by virtue of subdivision 7 of subsection B of § 60.2-210 and each joint account formed pursuant to subsection A of this section may elect to finance benefits to its employees by either taxes as set forth in §§ 60.2-526 through 60.2-533, or payments in lieu of taxes. Any such election to make payments in lieu of taxes shall be made in accordance with the provisions of subdivisions 1, 2 and 4 of subsection B of § 60.2-501. Termination of such election to make payments in lieu of taxes shall be made in accordance with subdivision 3 of subsection B of § 60.2-501.

C. If the election to make payments in lieu of taxes is exercised, payments shall be in an amount equivalent to the full amount of regular and extended benefits paid that is attributable to service in the employ of such governmental entity. If benefits paid to an individual are based on wages paid by more than one employer and one or more employers are liable for payments in lieu of taxes, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with the provisions of § 60.2-504. Notwithstanding the provisions of this subsection, if the final adjudication of a disputed claim finds the claimant totally or partially ineligible for benefits, the governmental entity shall be liable for any payment made to the claimant during or prior to the appeal process, whether made by erroneous statutory interpretation, administrative error, or incorrect wage reporting.

D. Payments in lieu of taxes by governmental entities as set forth in this section shall be made at such times and in such manner as the Commission may determine and prescribe by regulation.

1977, c. 330, § 60.1-89.2; 1979, c. 634; 1981, c. 248; 1986, c. 480.

A. As used in this section, unless the context requires a different meaning:

"Employer" includes any Indian tribe for which service in employment as defined under this title is performed.

"Employment" includes service performed in the employ of an Indian tribe, as defined in § 3306(u) of the Federal Unemployment Tax Act (FUTA), provided such service is excluded from "employment" as defined in FUTA solely by reason of § 3306(c)(7) of FUTA, and is not otherwise excluded from "employment" under this title. For purposes of this section, any exclusions from employment in § 60.2-219 that relate to services performed in the employ of state or local government shall be applicable to services performed in the employ of an Indian tribe.

"Tribal units" means subdivisions, subsidiaries, or business enterprises wholly owned by an Indian tribe.

B. Benefits based on service included in the definition of employment as provided in subsection A shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject under this title.

C. Indian tribes or tribal units subject to this title shall pay taxes as set forth in §§ 60.2-526 through 60.2-533 under the same terms and conditions as all other subject employers, unless they elect to pay into the fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe.

D. Indian tribes that elect to make payments to reimburse the fund for benefits paid shall make such election in the same manner and under the same conditions as provided in subsection C of § 60.2-507 pertaining to governmental entities that elect to make payments in lieu of taxes. Indian tribes shall determine if reimbursement for benefits paid will be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units.

E. Indian tribes or tribal units that elect to make payments in lieu of taxes shall be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as nonprofit organizations that have elected to make payments in lieu of taxes as provided in § 60.2-501.

F. At the discretion of the Commission, any Indian tribe or tribal unit that elects to become liable for payments in lieu of taxes shall be required within 30 days after the effective date of its election (i) to execute and file with the Commission a surety bond approved by the Commission or (ii) to deposit with the Commission money or securities on the same basis as nonprofit organizations that are required to post a bond or deposit pursuant to § 60.2-502.

G. Failure of the Indian tribe or tribal unit to make any required payment, including any assessment of interest and penalty, within 90 days of its due date shall cause the Indian tribe to lose the option to make payments in lieu of taxes, as provided in subsection C, for the following tax year unless payment in full is received before tax rates for next tax year are computed.

H. Any Indian tribe that loses the option to make payments in lieu of taxes due to late payment or nonpayment, as described in subsection G, shall have such option reinstated if, after a period of one year, all taxes have been made timely, provided that no taxes, payments in lieu of taxes for benefits paid, penalties or interest remain outstanding.

I. Failure of the Indian tribe or any tribal unit thereof to make required payments, including assessments of interest and penalty, after all collection activities deemed necessary by the Commission have been exhausted, shall cause services performed for such tribe to not be treated as "employment" as provided in subsection A.

J. The Commission may determine that any Indian tribe that loses coverage under subsection I may have services performed for such tribe again included as "employment" as provided in subsection A if all taxes, payments in lieu of taxes, penalties, and interest have been paid.

K. The Commission shall notify the United States Internal Revenue Service and the United States Department of Labor of any termination or reinstatement of coverage made under subsection I or subsection J.

L. Notices of payment and reporting delinquency to Indian tribes or their tribal units shall include information that failure to make full payment within the prescribed time frame:

1. Shall cause the Indian tribe to be liable for taxes under FUTA;

2. Shall cause the Indian tribe to lose the option to make payments in lieu of taxes; and

3. May cause the Indian tribe to be excepted from the definition of "employer," as provided in subsection A, and services in the employ of the Indian tribe, as provided in subsection A, to be excepted from "employment."

M. Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the federal government shall be financed in their entirety by such Indian tribe.

2008, cc. 100, 247.

Any employing unit which is or becomes an employer subject to this title within any calendar year shall be subject to this title during the whole of such calendar year. Any such employing unit shall establish an account with the Commission by the end of the calendar quarter in which it becomes subject to this title.

Code 1950, § 60-82; 1968, c. 738, § 60.1-98; 1986, c. 480; 2020, c. 1261.

A. Except as otherwise provided in this section and § 60.2-510, an employing unit shall cease to be an employer subject to this title as of January 1 of any year subsequent to December 31, 1972, only if:

1. The employer files with the Commission a written application for termination of coverage;

2. The Commission finds that (i) there were no twenty different days, each day being in a different week within the preceding calendar year, or (ii) there were no twenty different days, each day being in a different week within the current calendar year, within which such employing unit employed one or more individuals in employment subject to this title; and

3. The Commission finds that such employing unit did not pay in any calendar quarter in the preceding or current calendar year for service in employment wages of $1,500 or more.

B. Except as otherwise provided in this section and § 60.2-510, an employing unit as defined in subdivisions 1 through 4 of subsection A of § 60.2-213 or § 60.2-214 or § 60.2-215, shall cease to be an employer subject to this title as of January 1 of any year, only if it files with the Commission a written application for termination of coverage and the Commission finds that no services performed for such employing unit constitute employment as defined in subdivisions 1 through 4 of subsection A of § 60.2-213 or § 60.2-214 or § 60.2-215.

C. Any employing unit which is an employer at the end of any calendar year solely by acquisition during such year as provided in subdivision 1 of subsection B of § 60.2-210, shall cease to be an employer subject to this title as of January 1 of the succeeding calendar year without the filing of the written application required of all other employers, if the Commission finds that there were no twenty different days, each day being in a different week within the preceding or current calendar year that such employing unit and its predecessors in title, treated as a single employing unit:

1. Employed one or more individuals subject to this title; and

2. Did not pay in any calendar quarter in the preceding or current calendar year for service in employment wages of $1,500 or more.

D. Whenever any employer, during any completed calendar year, fails to be subject to the payment of taxes solely because no individual has earned wages from such employer during such calendar year, the Commission may, after not less than thirty days' notice in writing mailed to such employer at his last known address, cause such employer to cease to be an employer subject to this title as of January 1 of the calendar year in which such notice is given.

Code 1950, § 60-83; 1956, c. 440; 1968, c. 738, § 60.1-99; 1971, Ex. Sess., c. 235; 1972, c. 764; 1979, c. 636; 1986, c. 480.

A. Any employing unit, not otherwise subject to this title, which files with the Commission its written election to become an employer subject to this title for not less than two calendar years, shall, with the written approval of the Commission, become an employer subject to this title to the same extent as all other employers. Such employer shall be subject as of January 1 of the calendar year for which such election is approved, and shall cease to be subject as of January 1 of any calendar year subsequent to such two calendar years if it has filed with the Commission a written notice to that effect. However, the Commission may, on its own motion, and after ten days' written notice mailed to such employing unit at its last known address, without regard to the two-year calendar period, revoke such written approval. As of the date of such revocation, such employing unit shall cease to be an employer.

B. Any employing unit for which services are performed which do not constitute employment as defined in this title may file with the Commission a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment for all the purposes of this title for not less than two calendar years. Upon the Commission's written approval, such services shall be deemed to constitute employment subject to this title from the date stated in such approval. Such services shall cease to be deemed employment subject thereto as of January 1 of any calendar year subsequent to such two calendar years, only if at least thirty days prior to such January 1 such employing unit has filed with the Commission a written notice to that effect.

Code 1950, § 60-84; 1968, c. 738, § 60.1-100; 1971, Ex. Sess., c. 235; 1974, c. 660; 1977, c. 330; 1986, c. 480.

Taxes, as set forth in this and the succeeding article, shall accrue and become payable by each employer for each calendar year in which he is subject to this title. Such taxes shall be based upon wages payable for employment, as defined in §§ 60.2-212 through 60.2-219, occurring in such calendar year. Such taxes shall become due and be paid by each employer to the Commission for the fund in accordance with such regulations as the Commission may prescribe. Payment of such taxes and the filing of related returns shall be deemed to have been made as of the date of the postmark affixed to such payment and returns by the United States Postal Service, or by receipt given by such representative of the Commission if physical delivery of such payment and related returns is made to an office of the Commission.

Code 1950, § 60-60; 1968, c. 738, § 60.1-72; 1974, c. 466; 1986, c. 480; 1997, c. 137.

A. The Commission is hereby expressly authorized to require the filing of payroll and tax reports, and the payment of the taxes required by § 60.2-511 in monthly, quarterly, semiannual or annual payments as shall be determined by the Commission; however, if the due date for filing of reports or payment of taxes falls on a Saturday, Sunday or legal holiday, the due date shall be extended to the next business day that is not a Saturday, Sunday or legal holiday. Beginning January 1, 2013, employers may file payroll and tax reports, and pay the taxes required by § 60.2-511, annually, in the time, form and manner prescribed by the Commission, if the employment that is the subject of the report of taxes due under this chapter consists exclusively of domestic service in a private home of the employer, as defined in §§ 31.3121 (a)(7)-1, 31.3306 (c)(2)-1, and 31.3401 (a)(3)-1 of the Employment Tax Regulations promulgated pursuant to §§ 3121, 3306, and 3401 of the Internal Revenue Code, as amended. The aggregate amount of taxes shall be fully paid to the Commission on or before January 31 of each year next succeeding the year with respect to employment during which year such taxes are imposed, or in the event the time is extended for filing the return of the taxes imposed by Title IX of the Social Security Act for the year for which such taxes are imposed, then before the expiration of such extension. Taxes due and payable in an amount less than five dollars shall be deemed to be fully paid; however, this does not relieve an employer from filing payroll and tax reports as herein required.

B. Beginning January 1, 2021, all employers shall file quarterly reports on an electronic medium using a format prescribed by the Commission. Waivers will be granted only if the Commission finds this requirement creates an unreasonable burden on the employer. All requests for waiver must be submitted in writing. Beginning January 1, 2021, if any employer who has not obtained a waiver by the date the employer's quarterly report is due, fails, without good cause shown, to file electronically, the Commission shall assess upon the employer a penalty of $75, which penalty shall be in addition to the taxes due and payable with respect to such report and to any penalty assessed under subsection B of § 60.2-513. Penalties collected pursuant to this section shall be paid into the Special Unemployment Compensation Administration Fund established pursuant to § 60.2-314.

C. Notwithstanding the provisions of subsection A, no payroll and tax reports shall be filed with respect to an employee of a state or local agency performing intelligence or counterintelligence functions, if the head of such agency has determined that filing such a report could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.

Code 1950, § 60-61; 1968, c. 738, § 60.1-73; 1981, c. 99; 1984, c. 458; 1986, c. 480; 1993, c. 249; 1996, c. 264; 1997, c. 385; 2007, cc. 426, 638; 2012, c. 316; 2020, c. 1261.

A. If any employing unit fails to file with the Commission any report which the Commission deems necessary for the effective administration of this title within 30 days after the Commission requires the same by written notice mailed to the last known address of such employing unit, the Commission may determine on the basis of such information as it may have whether such employing unit is an employer, unless such determination has already been made. Also, on the basis of such information, the Commission may assess the amount of tax due from such employer and shall give written notice of such determination and assessment to such employer. Such determination and assessment shall be final (i) unless such employer, within 30 days after the mailing to the employer at his last known address or other service of the notice of such determination or assessment, applies to the Commission for a review of such determination and assessment or (ii) unless the Commission, on its own motion, sets aside, reduces or increases the same.

B. If any employer had wages payable for a calendar quarter and fails, without good cause shown, to file any report as required of him under this title with respect to wages or taxes, the Commission shall assess upon the employer a penalty of $100, which shall be in addition to the taxes due and payable with respect to such report.

C. For the purposes of this subsection, "newly covered" refers to the time at which an employer initially becomes subject to liability under the provisions of this title. A newly covered employer shall file by the due date of the calendar quarter in which such employer becomes subject to liability under the provisions of this title. If such employer's report is not filed by that date, and in the absence of good cause shown for the failure to so file, a $100 penalty shall be assessed for each report. Penalties collected pursuant to this section shall be paid into the Special Unemployment Compensation Administration Fund.

Code 1950, § 60-62; 1968, c. 738, § 60.1-74; 1974, c. 466; 1976, c. 708; 1977, c. 445; 1978, c. 238; 1984, c. 458; 1986, c. 480; 1999, c. 79; 2004, c. 495; 2018, c. 227; 2020, c. 1261.

No suit or proceeding for the purpose of establishing liability for taxes under this chapter shall be begun for any period occurring more than three years prior to January 1 of the year within which such suit or proceeding is instituted. However, this section shall not apply in any case of willful attempt in any manner to defeat or evade the payment of any contributions due under this chapter. A proceeding shall be deemed to have been instituted or begun upon the date of issuance of an order by the Commission directing a hearing to be held to determine liability or nonliability, under this chapter, of an employing unit, or upon the date notice of the establishment of liability is mailed to the last known address of the employing unit. The order or notice mentioned herein shall be deemed to have been issued on the date such order or notice is mailed to the last known address of the employing unit.

1968, c. 9, §§ 60-62.1, 60.1-74.1; 1977, c. 445; 1986, c. 480.

Each employer shall pay taxes equal to the following percentages of wages payable by him with respect to employment:

1. Except as otherwise provided in Article 4 (§ 60.2-525 et seq.) of this chapter, 6.2 percent with respect to employment during the calendar year. Wages payable beyond the last pay period in December shall be considered as wages payable in the first pay period of the succeeding year, and included in reports required for the first reporting period of such year.

2. If the Federal Unemployment Tax Act is at any time amended to permit a higher maximum rate of credit against the federal tax now levied under § 3301 of the Internal Revenue Code than the credit that is now permitted under § 3302 of the Internal Revenue Code, to an employer with respect to any state unemployment compensation law whose standard tax rate on payroll under such law is more than 5.4 percent, the standard tax rate for all employers under this title shall, by Commission rule promulgated under § 60.2-111, be increased from 5.4 percent on wages to that percentage on wages which corresponds to the higher maximum rate of credit thus permitted against the federal unemployment tax. Such increase shall become effective on the same date as such higher maximum rate of credit becomes permissible under such federal amendment.

3. If the Federal Unemployment Tax Act is at any time amended to increase the rate of excise tax each employer pays for employing individuals, the Commission may, by rules promulgated under § 60.2-111, increase the rate of taxes under this title to the rate which corresponds to the highest maximum rate of credit permitted against such higher federal unemployment excise tax. Such increase shall become effective on the same date as such higher rate of federal unemployment excise tax becomes effective.

Code 1950, § 60-63; 1950, p. 360; 1956, c. 440; 1968, c. 738, § 60.1-75; 1974, c. 466; 1977, c. 330; 1980, c. 480; 1981, c. 606; 1985, c. 152; 1986, c. 480.

Taxes imposed by this title and payments by employers in lieu of taxes shall not be deducted, in whole or in part, from the wages of individuals employed by any employer.

Code 1950, § 60-65; 1968, c. 738, § 60.1-77; 1972, c. 764; 1986, c. 480.

In the payment of any such taxes, a fractional part of a cent shall be disregarded, unless it amounts to one-half cent or more, in which case it shall be increased to one cent.

Code 1950, § 60-66; 1968, c. 738, § 60.1-78; 1986, c. 480.

A. Any employing unit or any officer or agent of an employing unit or any other person shall be guilty of a Class 1 misdemeanor if it or he:

1. Makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact (i) to prevent or reduce the payment of benefits to any individual entitled thereto, (ii) to avoid becoming or remaining subject to this title or (iii) to avoid or reduce any tax or other payment required from an employing unit under this title; or

2. Willfully fails or refuses (i) to furnish any reports required by this title or (ii) to produce or permit the inspection or copying of records as required hereunder.

B. Each such false statement, representation or failure to disclose a material fact listed in this section, and each day of such failure or refusal shall constitute a separate offense.

Code 1950, § 60-113; 1968, c. 738, § 60.1-130; 1986, c. 480.

Taxes unpaid on the date on which they are due and payable, as prescribed by the Commission pursuant to § 60.2-511, shall bear interest at the rate of one and one-half percent per month from and after such date until payment plus accrued interest is received by the Commission. Interest collected pursuant to this article shall be paid into the Special Unemployment Compensation Administration Fund continued by § 60.2-314.

Code 1950, § 60-77; 1968, c. 738, § 60.1-92; 1982, c. 363; 1986, c. 480.

Any check submitted for payment of taxes due as prescribed by § 60.2-511, which is dishonored by the payer, shall bear a bad check charge of twenty-five dollars. Charges collected pursuant to this section shall be paid into the Special Unemployment Compensation Administration Fund established by § 60.2-314.

1987, c. 114.

If the Commission accepts a form of payment by a means that incurs a charge, the Commission shall add that charge to such payment as described in subsection B of § 2.2-614.1.

1990, c. 687; 2002, c. 719.

No interest shall be assessed against or collected from any employer upon any taxes which accrued against such employer during the period of active service of such employer in the armed forces of the United States. Any proof of such service satisfactory to the Commission shall be sufficient. Any such employer who has already paid to the Commission any interest on taxes which would have been abated under this provision shall be entitled to a refund for the amount of interest so paid upon the filing of an application therefor.

Code 1950, § 60-77.1; 1952, c. 184; 1968, c. 738, § 60.1-93; 1986, c. 480.

If, after notice, any employer defaults in any payment of taxes or payment in lieu of taxes or interest or any penalty assessed pursuant to subsection C of § 60.2-501 and § 60.2-513, the amount due shall be collected by civil action in the name of the Commission. The employer adjudged in default shall pay the fees and costs of such action. Civil actions brought under this article to collect taxes or interest or any penalty from an employer shall be heard by the court at the earliest possible date. Such civil actions may be brought against any officer, employee, or agent of a corporation or partnership in his individual, personal capacity when that person willfully fails to cause the employer to pay the appropriate taxes and he had the authority to do so. No person shall be subject to this section unless it is proved (i) that such person had knowledge of the failure or attempt to make such payment and (ii) that such person had authority to prevent such failure or attempt. In addition to the foregoing remedies the Commission shall have such other remedies as are available to the State Tax Commissioner and county and city treasurers for the collection of taxes generally. The Commission is authorized to compromise, settle and adjust any tax or taxes, including interest, or any penalty assessed against any employer where in the judgment of the Commission the best interests of the Commonwealth will be promoted or served. The Commission may in such cases accept in full settlement of the tax assessed an amount less than that assessed.

Code 1950, § 60-78; 1968, c. 738, § 60.1-94; 1974, c. 466; 1977, c. 445; 1979, c. 634; 1986, c. 480; 1990, c. 687.

When an unsatisfied execution has been returned by an officer, and the employer against whom the judgment has been obtained on which the execution was issued continues in default of payment of taxes, or any portion thereof, such employer may be enjoined from operating and doing business in this Commonwealth until such taxes have been paid. The Circuit Court of the City of Richmond shall have exclusive original jurisdiction to grant such injunction upon the complaint of the Commission. Notice of the time and place when the application for the injunction will be made shall be served on the employer, and a copy of the bill of complaint shall be served with the notice.

Code 1950, § 60-79; 1968, c. 738, § 60.1-95; 1986, c. 480.

A. 1. In the event of any distribution of an employer's assets, taxes, interest and penalty then or thereafter due shall be a lien against such assets, prior to all claims of lien and general creditors. Taxes accruing by reason of an employment for an employer who is a receiver, trustee or other fiduciary shall be a lien against all the assets in the custody or control of such receiver, trustee or other fiduciary, prior and paramount to all other claims of lien and general creditors.

2. Nothing in this article shall be construed in derogation of any prior lien of the Commonwealth or any of its political subdivisions, nor any mortgage, deed of trust or other lien duly perfected prior to the date the taxes or any part thereof first accrued. However, no such lien in favor of the Commonwealth or any of its subdivisions, nor any mortgage, deed of trust or other lien shall in any case be preferred, paramount or prior to the lien for taxes due by any such receiver, trustee or other fiduciary upon payrolls earned in the employment of such receiver, trustee or other fiduciary.

B. 1. Any taxes, interest or penalty imposed by this chapter shall be a lien upon the assets of the business of any employer, subject to this chapter's provisions, who leases, transfers or sells out his business, or ceases to do business. Such employer shall be required, by the next reporting date as prescribed by the Commission, to file with the Commission all reports and pay all taxes due with respect to wages payable for employment up to the date of such lease, transfer, sale or cessation of the business. Such employer's successor in business shall be required to withhold sufficient of the purchase money to cover the amount of the taxes due and unpaid until such time as the former owner or employer produces a receipt from the Commission showing that the taxes have been paid, or produces a certificate from the Commission that no taxes are due.

2. If the purchaser of a business or successor of such employer fails to withhold purchase money or any money due to such employer in consideration of a lease or other transfer and the taxes are due and unpaid after the next reporting date, as set forth in subdivision 1 of this subsection, such successor shall be personally liable to the extent of the assets of the business so acquired for the payment of the taxes accrued and unpaid on account of the operation of the business by the former owner or employer.

3. Whenever the purchaser or successor of such employer files with the Commission a written request for a statement showing the amount of any tax due by such employer, unless such statement is furnished to such purchaser or successor within ninety days from the date such written request was filed, such purchaser or successor shall not be liable for any tax or taxes due by such employer, and the lien created by this section shall thereupon be released and discharged.

Code 1950, § 60-80; 1968, c. 738, § 60.1-96; 1977, c. 445; 1986, c. 480.

A. If within three years after the date on which any taxes or interest are paid an employing unit which paid such taxes or interest applies (i) for adjustment in connection with subsequent tax payments, or (ii) for a refund thereof because such adjustment cannot be made, and the Commission determines that such taxes or interest or any portion thereof was erroneously collected, or within sixty days from the final determination of any change or correction in the liability of the employing unit for any tax payable under this chapter, whichever is later, subject to the availability of Commission records, the Commission shall allow such employing unit to make an adjustment, without interest, in connection with subsequent tax payments by it. If such adjustment cannot be made, the Commission shall refund the amount, without interest, from the fund. For like cause and within the same period, an adjustment or refund may be so made on the Commission's own initiative.

B. Where the Commission finds upon satisfactory proof that any employing unit has erroneously paid to this Commonwealth taxes or interest upon wages earned by individuals in employment in another state, or under the provisions of the Federal Railroad Unemployment Insurance Act, a refund or adjustment shall be made, without interest, and without regard to the due date.

C. Where the Commission finds that an instrumentality of the United States has paid to this Commonwealth taxes or interest upon wages for any year with respect to which this Commonwealth is not certified by the Secretary of Labor of the United States under § 3304 of the Internal Revenue Code, a refund shall be made to such instrumentality, without interest, and without regard to the date of payment.

Code 1950, § 60-81; 1956, c. 440; 1968, c. 738, § 60.1-97; 1986, c. 480; 1989, c. 144; 1994, c. 161.

The Commission, by December 31 every year, shall provide every covered employer with a statement of the employer's benefit charges and taxes for the preceding fiscal year. For any period in which benefit charges are not available, benefit charges shall be calculated as provided in § 60.2-530.

1981, c. 606, § 60.1-40.1; 1986, c. 480; 2003, c. 382.

A. For each calendar year commencing after December 31, 1981, the tax rate of each employer, whose experience rating account has been chargeable with benefits during the most recent twelve completed calendar month period ending on June 30 of the calendar year immediately preceding the calendar year for which a tax rate is being determined, shall be computed as provided in this chapter.

B. Notwithstanding the provisions of subsection A of this section, the tax rate of each employer newly subject to this title, including any nonprofit organization which has elected to become liable for payments in lieu of taxes under the provisions of subsection B of § 60.2-501 and thereafter terminates such election, shall be 2.5 percent, except that at such time as it is eligible for computation as hereinafter provided, the tax rate shall become the computed rate. The Commission shall notify each such employer of his tax rate for such calendar year not later than December 31 immediately preceding such year, but the failure of any such employer to receive such notice shall not relieve him from liability for such tax.

Code 1950, § 60-67; 1952, c. 184; 1954, c. 203; 1956, c. 440; 1960, c. 136; 1968, c. 738, § 60.1-79; 1971, Ex. Sess., c. 235; 1974, c. 466; 1980, c. 406; 1981, c. 606; 1982, c. 370; 1983, c. 16; 1986, c. 480; 1995, c. 323; 1997, c. 298; 1999, c. 313.

A. For each calendar year, the tax rate of each foreign contractor doing business in Virginia shall be the maximum rate allowable by law for three years. At the end of the three-year period, such employer shall be eligible for the computed rate as provided in § 60.2-530.

B. As used in this section, "foreign contractor" means (i) an out-of-state "contractor" as defined in § 54.1-1100 or (ii) an out-of-state "highway contractor" engaged in the type of contracting activities referred to in § 33.2-1106, who does not maintain a principal place of business in Virginia as determined by the Commission, except that such employer need not be a member of any highway contractors association. Such determination by the Commission shall be final and not subject to judicial review.

1982, c. 200, § 60.1-79.1; 1984, c. 468; 1986, c. 480.

A. An individual's "benefit charges" shall be computed in the following manner:

1. For each week benefits are received, a claimant's "benefit charges" shall be equal to his benefits received for such week.

2. For each week extended benefits are received, pursuant to § 60.2-610 or 60.2-611, a claimant's "benefit charges" shall be equal to one-half his benefits received for such week. However, a claimant's "benefit charges" for extended benefits attributable to service in the employ of a governmental entity referred to in subdivisions 1 through 3 of subsection A of § 60.2-213 shall be equal to the full amount of such extended benefit.

3. For each week partial benefits are received, the claimant's "benefit charges" shall be computed (i) in the case of regular benefits as in subdivision 1 of this subsection, or (ii) in the case of extended benefits as in subdivision 2 of this subsection.

B. 1. The employing unit from whom such individual was separated, resulting in the current period of unemployment, shall be the most recent employing unit for whom such individual has performed services for remuneration (i) during 30 days, whether or not such days are consecutive, or (ii) during 240 hours. If such individual's unemployment is caused by separation from an employer, such individual's "benefit charges" for such period of unemployment shall be deemed the responsibility of the last employer for (i) 30 days or (ii) 240 hours prior to such period of unemployment.

2. Any employer charged with benefits paid shall be notified of the charges quarterly by the Commission. The amount specified shall be conclusive on the employer unless, not later than 30 days after the notice of benefit charges was mailed to its last known address or otherwise delivered to it, the employer files an appeal with the Commission, setting forth the grounds for such an appeal. Proceedings on appeal to the Commission regarding the amount of benefit charges under this subsection or a redetermination of such amount shall be in accordance with the provisions of § 60.2-500. The decision of the Commission shall be subject to the provisions of § 60.2-500. Any appeal perfected pursuant to the provisions of this section shall not address any issue involving the merits or conditions of a claimant's separation from employment.

C. No "benefit charges" shall be deemed the responsibility of an employer of:

1. An individual whose separation from the work of such employer arose as a result of a violation of the law by such individual, which violation led to confinement in any jail or prison;

2. An individual who voluntarily left employment in order to accept other employment, genuinely believing such employment to be permanent;

3. An individual with respect to any weeks in which benefits are claimed and received after such date as that individual refused to accept an offer of rehire by the employer because such individual was in training with approval of the Commission pursuant to § 60.2-613;

4. An individual who voluntarily left employment to enter training approved under § 236 of the Trade Act of 1974 (19 U.S.C. § 2296 et seq.);

5. An individual hired to replace a member of the Reserve of the United States Armed Forces or the National Guard called into active duty in connection with an international conflict and whose employment is terminated concurrent with and because of that member's return from active duty;

6. An individual who left employment voluntarily with good cause due to a personal bona fide medical reason caused by a non-job-related injury or medical condition;

7. An individual participating as an inmate in (i) state or local work release programs pursuant to § 53.1-60 or 53.1-131; (ii) community residential programs pursuant to §§ 53.1-177, 53.1-178, and 53.1-179; or (iii) any similar work release program, whose separation from work arose from conditions of release or parole from such program;

8. An individual who was unable to work at his regular employment due to a disaster for which the Governor, by executive order, has declared a state of emergency, if such disaster forced the closure of the employer's business. In no case shall more than four weeks of benefit charges be waived;

9. An individual who leaves employment to accompany his spouse to the location of the spouse's new duty assignment if (i) the spouse is on active duty in the military or naval services of the United States; (ii) the spouse's relocation to a new military-related assignment is pursuant to a permanent change of station order; (iii) the location of the spouse's new duty assignment is not readily accessible from the individual's place of employment; and (iv) the spouse's new duty assignment is located in a state that, pursuant to statute, does not deem a person accompanying a military spouse as a person leaving work voluntarily without good cause; or

10. (Expires July 1, 2028) An individual who has received any overpayment of benefits that the Commission waived the requirement to repay pursuant to subsection A of § 60.2-633.

Code 1950, § 60-68; 1952, c. 184; 1954, c. 203; 1956, c. 440; 1958, c. 36; 1960, c. 136; 1962, cc. 12, 83; 1964, c. 3; 1966, c. 30; 1968, c. 9; 1968, c. 738, § 60.1-80; 1970, c. 104; 1972, c. 764; 1974, c. 466; 1976, c. 708; 1977, c. 330; 1978, c. 493; 1979, c. 634; 1980, c. 463; 1981, cc. 250, 606; 1986, c. 480; 1989, c. 104; 1991, c. 249; 1991, Sp. Sess., c. 9; 1997, c. 202; 2001, c. 721; 2004, cc. 583, 977; 2005, cc. 44, 105; 2009, c. 878; 2014, c. 442; 2024, cc. 746, 772.

A. As used in this section, unless the context requires a different meaning:

"Employer," with regard to the timeliness and adequacy of responses, includes an agent of the employer used by the employer to respond to the Commission on the employer's behalf; however, an employer's agent's failure to respond timely or adequately to requests for information with regard to claims involving the agent's other clients shall not be used in determining whether the employer has established a pattern of failing to respond timely or adequately to written requests for information.

"Erroneous payment" means a payment of benefits under this title made prior to a determination by the Commission that the claimant is not eligible or qualified for the benefits paid.

"Information relating to a claim" means information material to a determination or decision by the Commission relating to the payment of benefits under this title, including separation information and information required by the Commission for the establishment of a claim for compensation and information about wages, days, and hours worked.

"Review period" means the 48 consecutive calendar month period ending on the June 30 that precedes the Commission's next annual calculation of the employer's benefit ratio pursuant to subdivision A 1 a of § 60.2-530.

"Written request" includes a request sent electronically.

B. An employer's account shall not be relieved of charges relating to an erroneous payment if the Commission determines that:

1. The erroneous payment was made because the employer failed to respond timely or adequately to a written request by the Commission for information relating to the claim; and

2. The employer has established a pattern of failing to respond timely or adequately to written requests by the Commission for information relating to claims.

C. For purposes of this section, an employer's response to a written request by the Commission for information relating to a claim shall be deemed not to be:

1. "Adequate" if it fails to provide sufficient material facts to enable the Commission to make a correct determination regarding a claim for benefits; however, (i) a response shall not be deemed inadequate if the Commission failed to request the necessary information or if information is provided in a format other than as requested, provided that the information is capable of being read by the recipient, and (ii) there shall be a rebuttable presumption that an employer that participates in a fact-finding interview or responds fully to the questions set out on the written request for information has provided an adequate response; or

2. "Timely" if it is not made within 10 calendar days after the delivery or mailing of the Commission's request for information.

D. An employer shall be deemed to have established a pattern of failing to respond timely or adequately to written requests for information relating to claims if the Commission determines that the employer has failed to respond timely or adequately to a written request for information relating to a claim on four or more occasions within the applicable review period. The Commission shall not find that an employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims unless the Commission has provided the employer with the notices required pursuant to subsection E.

E. The Commission shall provide the employer with a written notice following the employer's first, second, and third determinations that the employer failed to respond timely or adequately to a written request for information relating to a claim within the applicable review period. Each such notice shall be delivered or mailed to the employer's last known address of agency record and shall advise the employer of the potential implications of the employer's failure to respond timely or adequately to written requests for such information.

F. Upon the Commission's third determination within the applicable review period that an employer failed to respond timely or adequately to a written request for information relating to a claim, the Commission shall assess upon the employer a civil penalty of $75. A copy of the notice of assessment of a civil penalty shall be delivered or mailed to the employer with the notice of the employer's third such failure as required pursuant to subsection E. Civil penalties collected pursuant to this subsection shall be paid into the Special Unemployment Compensation Administration Fund established pursuant to § 60.2-314. The Commission may compromise, settle, and adjust any such penalty as authorized by § 60.2-521.

G. An employer shall not be found to have failed to respond timely or adequately to a written request by the Commission for information relating to a claim if the Commission finds good cause for such failure. The Commission may not find good cause for an employer's failure to respond timely or adequately to such a written request unless the failure is due to compelling and necessitous circumstances beyond the employer's control.

H. If the Commission has determined that an employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims, such determination shall remain in effect until the end of the applicable review period. Any benefit charges for an erroneous payment that the Commission has determined are not to be relieved from the employer's account pursuant to subsection B shall remain chargeable to the employer's account through the period ending on the fourth June 30 following the Commission's determination.

I. The issue of whether an employer's account shall be relieved of charges relating to an erroneous payment, including whether an erroneous payment was made because the employer failed to respond timely or adequately to a written request by the Commission for information relating to the claim, shall be decided in every Commission proceeding arising from an employer's appeal of an award of benefits. Any such decision shall be subject to appeal pursuant to § 60.2-620. Final decisions shall be used in determining whether the employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims, whether the employer is subject to a civil penalty pursuant to subsection F, and whether the Commission has given the notices required pursuant to subsection E.

J. The costs of benefits charged to any governmental entity, Indian tribe, or nonprofit entity that is a reimbursable employing unit under this title shall not include any credits of benefit overpayments actually collected by the Commission if the Commission finds that the overpayment was made because the entity or its agent was at fault for failing to respond timely or adequately to a written request for information relating to a claim and the entity or agent has established a pattern of failing to respond timely or adequately to such requests.

K. If the erroneous payment results from a combined-wage claim, the determination of noncharging for the combined-wage claim shall be made by the paying state. If the response from the employer does not meet the criteria established by the paying state for an adequate or timely response, the paying state shall promptly notify the transferring state of its determination, and the employer shall be appropriately charged.

L. This section applies to erroneous payments established on or after July 7, 2013.

2013, c. 771.

A. As used in this section, unless the context requires a different meaning:

"Employer," with regard to the timeliness and adequacy of responses, includes an agent of the employer used by the employer to respond to the Commission on the employer's behalf; however, an employer's agent's failure to respond timely or adequately to requests for information with regard to claims involving the agent's other clients shall not be used in determining whether the employer has established a pattern of failing to respond timely or adequately to written requests for information.

"Erroneous payment" means a payment of benefits under this title made prior to a determination by the Commission that the claimant is not eligible or qualified for the benefits paid.

"Information relating to a claim" means information material to a determination or decision by the Commission relating to the payment of benefits under this title, including separation information and information required by the Commission for the establishment of a claim for compensation and information about wages, days, and hours worked.

"Review period" means the 48 consecutive calendar month period ending on the June 30 that precedes the Commission's next annual calculation of the employer's benefit ratio pursuant to subdivision A 1 a of § 60.2-530.

"Written request" includes a request sent electronically.

B. An employer's account shall not be relieved of charges relating to an erroneous payment if the Commission determines that the employer has failed to respond timely or adequately to a written request by the Commission for information relating to the claim and the employer has established a pattern of failing to respond timely or adequately to written requests by the Commission for information relating to claims.

C. For purposes of this section, an employer's response to a written request by the Commission for information relating to a claim shall be deemed not to be:

1. "Adequate" if it fails to provide sufficient material facts to enable the Commission to make a correct determination regarding a claim for benefits; however, (i) a response shall not be deemed inadequate if the Commission failed to request the necessary information or if information is provided in a format other than as requested, provided that the information is capable of being read by the recipient, and (ii) there shall be a rebuttable presumption that an employer that participates in a fact-finding interview or responds fully to the questions set out on the written request for information has provided an adequate response; or

2. "Timely" if it is not made within 10 calendar days after the delivery or mailing of the Commission's request for information.

D. An employer shall be deemed to have established a pattern of failing to respond timely or adequately to written requests for information relating to claims if the Commission determines that the employer has failed to respond timely or adequately to a written request for information relating to a claim on three or more occasions within the applicable review period. The Commission shall not find that an employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims unless the Commission has provided the employer with the notices required pursuant to subsection E. The Commission shall include in any written request for information from an employer notice of (i) the deadline to provide a timely response, (ii) the requirement to provide an adequate response, and (iii) the consequences of such employer's failure to provide such timely and adequate response.

E. The Commission shall provide the employer with a written notice following each instance in which the employer fails to respond timely or adequately to a written request for information relating to a claim. Each such notice shall be electronically delivered, including delivery through the Employer Self-Service Tax System website maintained by the Commission, or mailed to the employer and shall advise the employer of the implications of the employer's failure to respond timely or adequately to written requests for such information. The Commission shall (i) provide employers who are not registered for a State Information Data Exchange System E-Response or System Integration Account in Virginia with the option to elect delivery of such notices to a designated mailing address and (ii) ensure such notices are delivered to a physical or electronic mailing address customarily used by the employer's designated attorney or authorized representative for unemployment insurance claim matters.

F. 1. Upon the Commission's second determination within the applicable review period that an employer failed to respond timely or adequately to a written request for information relating to a claim, the Commission shall assess upon the employer a civil penalty of $100. A copy of the notice of assessment of a civil penalty shall be delivered or mailed to the employer with the notice of the employer's second such failure as required pursuant to subsection E. Civil penalties collected pursuant to this subsection shall be paid into the Special Unemployment Compensation Administration Fund established pursuant to § 60.2-314. The Commission may compromise, settle, and adjust any such penalty as authorized by § 60.2-521.

2. Upon the Commission's third determination, and for each subsequent determination, within the applicable review period that an employer failed to respond timely or adequately to a written request for information relating to a claim, the employer shall be considered to have waived all rights in connection with the claim, including participation and appeal rights otherwise available pursuant to Article 5 (§ 60.2-619 et seq.) of Chapter 6, unless the employer demonstrates to the Commission that good cause exists for such failure.

G. An employer shall not be found to have failed to respond timely or adequately to a written request by the Commission for information relating to a claim if the Commission finds good cause for such failure. The Commission may not find good cause for an employer's failure to respond timely or adequately to such a written request unless the failure is due to compelling and necessitous circumstances beyond the employer's control. The Commission shall find good cause for an employer's failure to respond timely or adequately to such a written request if the employer demonstrates that the Commission (i) did not deliver such request to the physical or electronic mailing address specified in writing by the employer for unemployment insurance claim matters or (ii) did not deliver such request to the employer's designated attorney or authorized representative for unemployment insurance claim matters.

H. If the Commission has determined that an employer has established a pattern of failing to respond timely or adequately to written requests for information relating to claims, such determination shall remain in effect until the end of the applicable review period. Any benefit charges for an erroneous payment that the Commission has determined are not to be relieved from the employer's account pursuant to subsection B shall remain chargeable to the employer's account through the period ending on the fourth June 30 following the Commission's determination.

I. The costs of benefits charged to any governmental entity, Indian tribe, or nonprofit entity that is a reimbursable employing unit under this title shall not include any credits of benefit overpayments actually collected by the Commission if the Commission finds that the entity or its agent was at fault for failing to respond timely or adequately to a written request for information relating to a claim and the entity or agent has established a pattern of failing to respond timely or adequately to such requests.

J. If the erroneous payment results from a combined-wage claim, the determination of noncharging for the combined-wage claim shall be made by the paying state. If the response from the employer does not meet the criteria established by the paying state for an adequate or timely response, the paying state shall promptly notify the transferring state of its determination, and the employer shall be appropriately charged.

K. This section applies to erroneous payments established on or after July 7, 2013.

2013, c. 771; 2024, cc. 165, 236.

Any employer's benefit charges for a given calendar year shall be the total of the "benefit charges" which, pursuant to the provisions of § 60.2-528, are deemed to be the responsibility of such employer.

Code 1950, § 60-69; 1954, c. 203; 1962, c. 6; 1964, c. 3; 1968, c. 738, § 60.1-81; 1974, c. 466; 1977, c. 330; 1981, c. 606; 1986, c. 480.

A. 1. The "benefit ratio" of each employer for a given calendar year shall be the percentage, rounded to the nearest one-tenth of a percent, equal to the employer's benefit charges for the 12 consecutive calendar month period ending on June 30 immediately preceding that calendar year, divided by the total of his payroll for the same period except that:

a. For an employer whose account has been chargeable with benefit charges for 48 or more consecutive completed calendar months, the "benefit ratio" shall be the percentage, rounded to the nearest one-tenth of a percent, equal to the employer's benefit charges for the most recent 48 consecutive completed calendar month period ending on June 30 immediately preceding that calendar year, divided by the total of his payrolls for the same period;

b. For an employer whose account has been chargeable with benefit charges for 36 but less than 48 consecutive completed calendar months the "benefit ratio" shall be the percentage equal to the employer's benefit charges for the most recent 36 consecutive completed calendar month period ending on June 30 immediately preceding that calendar year divided by his payroll for the same period; and

c. For an employer whose account has been chargeable with benefit charges for 24 but less than 36 consecutive completed calendar months the "benefit ratio" shall be the percentage, rounded to the nearest one-tenth of a percent, equal to the employer's benefit charges for the most recent 24 consecutive completed calendar month period ending on June 30 immediately preceding that calendar year divided by his payroll for the same period.

2. The term "payroll" as used in this section means the greater of (i) the taxable payroll on which taxes have been paid on or before September 30 immediately following such June 30 or (ii) $1.

B. Where benefit charges are not available for any or all of the periods used to determine an employer's benefit ratio, benefit wages divided by three shall be used in lieu of benefit charges for those periods benefit charges are not available, in combination with benefit charges, where available to determine an employer's benefit ratio.

Code 1950, § 60-70; 1954, c. 203; 1956, c. 440; 1960, c. 136; 1968, c. 738, § 60.1-82; 1977, c. 330; 1981, c. 606; 1986, c. 480; 2014, c. 191.

Subject to the provisions of § 60.2-533, the experience rating tax rate for each employer for the calendar year 1982 and subsequent years shall be the percent in the column corresponding to the employer's benefit ratio, except that if the employer's benefit ratio exceeds 6.2 percent, the column under 6.2 percent shall be the appropriate column, and in the line corresponding to the fund balance factor for the year pursuant to § 60.2-533.

1981, c. 606, § 60.1-84.1; 1986, c. 480; 1987, c. 114; 1988, c. 766; 1995, c. 515.

A. As of January 1 of each year, to all experience rating tax rates established pursuant to § 60.2-531, to all assigned tax rates established pursuant to §§ 60.2-515, 60.2-526, 60.2-527 and 60.2-538, there shall be added the pool cost charges as determined in subsection B of this section.

B. The pool cost charge rate rounded to the nearest one-hundredth of a percent shall be determined as follows:

1. Pool costs for a given calendar year shall be those costs defined in subdivision 2 of this subsection for the thirty-six consecutive calendar month period ending on June 30 immediately preceding that calendar year. The pool cost charge rate shall be pool costs divided by payrolls for such period.

2. Pool costs shall consist of (i) benefit charges which cannot be assigned to an individual employer pursuant to §§ 60.2-210, 60.2-212 through 60.2-219, or subsection C of § 60.2-528, or cannot be charged to an individual employer due to his becoming an inactive account pursuant to § 60.2-210 or § 60.2-509, (ii) the difference in the amount the Commission pays pursuant to subdivision 2 of subsection A of § 60.2-609 and the amount the Commission receives pursuant to subdivision 3 of subsection A of § 60.2-609, and (iii) the difference between the benefit charges of all employers with a maximum experience rating tax rate and the amount of the taxes resulting from applying the maximum experience rating tax rate against the payrolls of the same employers. The term "payrolls" as used in this section shall mean the taxable payroll on which taxes have been paid on or before September 30 immediately following such June 30.

3. When the fund balance factor for the most recent twelve-month period ending on June 30 of the immediately preceding calendar year is greater than fifty percent, interest earned on the balance which shall stand to the credit of the account of the Commonwealth of Virginia in the Unemployment Trust Fund in the treasury of the United States shall be subtracted from pool costs, except that in no instance shall pool costs be less than zero.

1981, c. 606, § 60.1-84.2; 1984, c. 458; 1986, c. 480; 1987, c. 114; 1990, c. 908; 1993, c. 249.

A. As of July 1 of each calendar year, a fund balance factor, rounded to the nearest one-tenth of a percent, shall be determined as follows:

The net assets which shall be compared with the "adequate balance" as determined in subsection B of this section, shall be comprised of the balance which shall stand to the credit of the account of the Commonwealth of Virginia in the Unemployment Trust Fund in the Treasury of the United States; amounts withdrawn therefrom but not expended; employer payments not yet transferred to such account; net employer taxes receivable; and amounts due from claimants and other states, minus payables due to claimants, employers, other funds of the Virginia Employment Commission, and other states. The resulting percent shall be termed the "fund balance factor," except that if the percent determined is less than fifty percent, the fund balance factor shall be fifty percent.

B. As of July 1 of each calendar year, the Commission shall determine the "adequate balance" for the trust fund as follows:

For the twenty-year period ending July 1 of the year of determination, the highest ratios of benefits divided by total wages of three separate consecutive four-quarter periods shall be averaged and multiplied by 1.38 to determine the fund adequacy multiplier. The fund adequacy multiplier shall be multiplied by the total wages for the year in question to determine the "adequate fund balance" for that year.

C. A fund building rate of two-tenths percent shall be added to all experience rating rates established pursuant to § 60.2-531, and to all assigned tax rates established pursuant to §§ 60.2-515, 60.2-526, 60.2-527 and 60.2-538, except that such rate shall not be applied if the fund balance factor determined pursuant to subsection A of this section exceeds fifty percent.

1981, c. 606, § 60.1-85.1; 1986, c. 480; 1993, c. 249; 1996, c. 305; 1997, cc. 530, 674.

As used in this article "tax rate" means the tax or percentage of wages payable by an employer with respect to employment.

Code 1950, § 60-74; 1968, c. 738, § 60.1-87; 1986, c. 480.

A. Except as provided in subsection B, whenever any employing unit in any manner succeeds to or acquires the organization, trade, separate establishment or business, or substantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this title, the succeeding or acquiring unit shall be assigned the experience record of the predecessor. Such record shall be deemed the experience record of the successor solely for rate computation purposes as of July 1 of the year in which the acquisition occurred. Such successor, unless already an employer subject to this title, shall, during the remainder of the current calendar year, be subject to the rate of taxation of the predecessor. If such successor is at the time of the acquisition an employer subject to this title, such successor's rate of tax to which it is then subject shall remain the same until the next determination of rates under this chapter for all employers. When a successor acquires an employing unit by partial acquisition, the predecessor employer shall provide within thirty days of notification by the Commission, information relating to the division of taxable payroll for partial acquisitions. Such information shall be provided on a form supplied by the Commission.

B. Upon written notification to the Commission that it does not desire the experience record of its predecessor, a succeeding or acquiring unit shall not be assigned such record. This notification shall be made to the Commission within sixty days of the later of (i) such acquisition or succession or (ii) the effective date of this section on a form approved by the Commission. Upon receipt thereof, the Commission shall assign the notifying unit the rate of a new employer. If the notification is not received within such sixty-day period, however, the Commission shall assign the succeeding or acquiring unit the experience record of its predecessor. The provisions of this subsection shall not be applicable to any successor that, at the time of the acquisition, was an employer subject to this title.

1979, c. 634, § 60.1-88.01; 1983, c. 13; 1986, c. 480; 1995, c. 515; 1997, c. 409.

A. Any person aggrieved by a decision of the Commission under the provisions of § 60.2-535 shall have the right to review before the Commission. Such review before the Commission shall be instituted by a request filed by the aggrieved party with the Commission within thirty days from the date of mailing of the decision.

B. Any party aggrieved by the Commission decision on review may secure judicial review of any decision pursuant to the provisions of § 60.2-500, such provisions applying mutatis mutandis.

1974, c. 198, § 60.1-88.1; 1981, c. 252; 1986, c. 480; 1999, c. 79.

A. If an employer shall transfer any trade or business to another employer where, at the time of transfer, there is substantially common ownership, management, or control of the trade or business, then the unemployment experience attributable to the transferred business shall also be transferred to, and combined with the unemployment experience attributable to, the employer to whom such business is transferred. If the sole or primary purpose of such transfer is to obtain a lower unemployment tax rate, that employer shall be subject to the penalties established by § 60.2-536.3.

B. If an employer shall transfer any trade or business to a person who is not otherwise an employer at the time of such transfer, and the sole or primary purpose of such transfer is to obtain a lower unemployment tax rate:

1. The unemployment experience of the acquired business shall not be transferred to such person; instead, such person shall be assigned the higher of the transferred business' calculated rate or the new employer rate under § 60.2-526; and

2. Such person shall be subject to the penalties established by § 60.2-536.3.

C. Any person who shall knowingly advise another person to engage in a transfer of any trade or business, where the sole or primary purpose of such transfer is to obtain a lower unemployment tax rate, shall be subject to the penalties established by § 60.2-536.3.

D. The Commission shall establish methods to identify and investigate the transfer or acquisition of a business for purposes of this section.

1. For the purposes of determining whether there is "substantially common ownership, management, or control of two or more employers," the Commission shall consider all relevant facts and circumstances, including the extent of commonality or similarity of: (i) ownership, (ii) any familial relationships, (iii) principals or corporate officers, (iv) organizational structure, (v) day-to-day operations, (vi) assets and liabilities, and (vii) stated business purpose.

2. For the purposes of determining whether a business was transferred solely or primarily to obtain a lower unemployment tax rate, the Commission shall consider the facts and circumstances of the transfer, including: (i) the cost of acquiring the business, (ii) how long such business was continued, and (iii) whether a substantial number of new employees was hired to perform duties unrelated to the business activity conducted prior to the transfer.

2005, cc. 47, 91.

Upon application by an employer who is a party to a transfer or potential transfer of any trade or business, the Commission shall issue an advisory opinion as to whether such transfer constitutes a transfer pursuant to § 60.2-536.1, or is solely or primarily for the purpose of obtaining a lower unemployment tax rate. The application shall be under oath or affirmation, in a form prescribed by the Commission, and shall fully set forth all relevant facts regarding the proposed transfer. The Commission may require such additional information and documentary evidence as deemed necessary for a fair and informed opinion. Such opinion shall be issued within 60 days after the Commission has received all of the information and evidence requested. An employer who proceeds with the transfer of a trade or business in reliance upon a favorable advisory opinion issued under this section shall not subsequently be found to have violated the provisions of § 18.2-204.3, and shall not be subject to the penalties of § 60.2-536.3, provided such employer has made full disclosure of all relevant facts to the Commission. If an employer disagrees with the Commission's advisory opinion, it shall have the right to a hearing and decision pursuant to § 60.2-500, provided that an application for a hearing is filed with the Commission within 30 days from the date the advisory opinion was mailed.

2005, cc. 47, 91.

A. If a person knowingly transfers, or attempts to transfer, any trade or business where the sole or primary purpose is to obtain a lower unemployment tax rate, or if a person knowingly advises another person to engage, or attempt to engage, in such transfer, such person shall be subject, in addition to the criminal penalties set forth in § 18.2-204.3, to the following additional rate of contributions and civil penalty:

1. If the person is an employer, he shall be assigned the highest rate assignable under this chapter for the calendar year during which such violation or attempted violation occurred, and for the next calendar year immediately following such year. However, if the employer is already at such highest rate for that year, or if the amount of increase in the employer's rate would be less than two percent for any such year, then an additional rate of contributions of two percent of taxable wages shall be imposed for such year, which shall be paid into the benefit account of the Unemployment Compensation Fund pursuant to § 60.2-301.

2. If the person is not an employer, he shall be subject to a civil penalty of $5,000, which shall be paid into the Special Unemployment Compensation Administration Fund pursuant to § 60.2-314.

B. Final orders of the Commission with respect to the provisions of § 60.2-536.1 may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Clerk of the Commission. Such orders may be appealed pursuant to § 60.2-500.

2005, cc. 47, 91.

The provisions of §§ 60.2-536.1 through 60.2-536.3 shall be interpreted and applied in such a manner as to meet the requirements contained in Public Law 108-295.

2005, cc. 47, 91.

As used in §§ 60.2-536.1 through 60.2-536.3, unless the context requires a different meaning:

"Knowingly" means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.

"Person" shall have the meaning given such term by § 7701 (a) (1) of the Internal Revenue Code of 1986.

"Trade" or "business" includes the employer's workforce.

"Violates" or "attempts" to violate includes intent to evade, misrepresentation, or willful nondisclosure.

2005, cc. 47, 91.

Notwithstanding the provisions of §§ 60.2-500 through 60.2-536, if § 3303 of the Internal Revenue Code is amended so as to allow an additional credit under § 3302 (b) of the Internal Revenue Code to employers not otherwise eligible for a reduced rate by reason of the lapse of insufficient time since first becoming subject to this title, the Commission, by a regulation promulgated under § 60.2-111, shall fix and determine the tax rate of all such employers at such reduced rate as shall then be permissible under such federal amendment.

Code 1950, § 60-76.1; 1956, c. 440; 1968, c. 738, § 60.1-90; 1986, c. 480.

Notwithstanding the provisions of §§ 60.2-500 through 60.2-537, if on July 31 of any year the taxes or any portion thereof or the interest due thereon for any previous quarter is delinquent and unpaid and has been delinquent and unpaid for ninety days or more, the Commission may issue a notice of delinquency demanding payment. If the amount due is not paid within thirty days after such notice is mailed to the delinquent employer at his last known address, such delinquent employer's rate for the calendar year immediately following the calendar year in which such notice is sent shall not be computed under the provisions of this article, but shall be 6.2 percent.

Code 1950, § 60-76.2; 1956, c. 440; 1960, c. 136; 1968, c. 738, § 60.1-91; 1977, c. 445; 1980, c. 480; 1981, c. 606; 1982, c. 363; 1986, c. 480.