This opinion is subject to revision upon final publication.
Industrial Claim Appeals Office of the State of Colorado. DD No. 5463-2011.
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS.
Lapin Lapin, P.C., Theresa L. Corrada, Denver, Colorado, for Petitioner.
John W. Suthers, Attorney General, Mary Karen Maldonado, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
No Appearance for Respondent Division of Unemployment Insurance.
by JUDGE ROMÁ N. Dailey and J. Jones, JJ., concur.
ROMÁ N., JUDGE.
[¶1] In this unemployment compensation tax liability case, petitioner, Foundation for Human Enrichment (the Foundation), seeks review of a final order of the Industrial Claim Appeals Office (Panel). The issue on appeal is whether coordinator services performed by twenty-one individuals, who lived and worked out of state, for workshops offered by the Foundation, constituted covered " employment" for tax purposes under the Colorado Employment Security Act (CESA), sections 8-70-101 to 8-82-105, C.R.S. 2013. The Panel concluded that the out-of-state coordinators were covered employees under the CESA and that the Foundation was responsible for paying unemployment compensation taxes for these individuals.
[¶2] We conclude that respondent, the Division of Unemployment Insurance (Division), lacked statutory authority to impose tax liability against the Foundation with regard to the out-of-state coordinators. Consequently, we set aside the Panel's order and remand with instructions to reinstate the hearing officer's original decision determining that the out-of-state coordinators were not covered employees under the CESA for tax purposes.
I. Factual and Procedural Background
A. Tax Audit
[¶3] The Foundation is a nonprofit organization based in Boulder, Colorado, that does outreach to victims of violence, war, and natural disasters. The out-of-state coordinators performed various administrative and clerical services for the Foundation in helping to organize workshops offered by the Foundation in out-of-state locations.
[¶4] The Division conducted an audit of the Foundation and issued a notice of liability, finding that twenty-three workers, classified as coordinators, were in covered employment for purposes of the CESA. The Foundation appealed that decision.
B. Hearing Officer's Original Decision
[¶5] Following a hearing, the hearing officer upheld the Division's ruling as to two workers who worked in Colorado. However, the hearing officer determined that twenty-one workers who lived and provided all their services to the Foundation out of state were not in covered employment for purposes of the CESA.
C. Panel's Initial Order
[¶6] The Division appealed the hearing officer's ruling as to the twenty-one out-of-state coordinators to the Panel. The Panel determined that the out-of-state coordinators were in covered employment under the definition of employment in section 8-70-116, C.R.S. 2013, and set aside the hearing officer's decision concluding otherwise. The Panel remanded for findings under section 8-70-115(1)(b), C.R.S. 2013, regarding whether the out-of-state coordinators were free from ...