Virginia Law

Article 4. Computation of Tax Rate.

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.