Industrial Claim Appeals Office of the State of Colorado DD
F. K. Sabal, Authorized Representative, Palisade, Colorado,
Cynthia H. Coffman, Attorney General, Evan P. Brennan,
Assistant Attorney General, Denver, Colorado, for Respondent
Industrial Claim Appeals Office
Appearance for Respondent Division of Unemployment Insurance
1 Petitioner, Dos Almas LLC, seeks review of a final order of
the Industrial Claim Appeals Office (Panel). Reversing a
hearing officer's decision, the Panel ruled that, for
unemployment compensation tax rate liability purposes, Dos
Almas is a "successor" employer to WooPig LLC under
the statutory criteria in section 8-76-104(1)(a), C.R.S.
2017. We affirm the Panel's order.
2 The relevant facts are not in dispute. Dos Almas began
operating a restaurant in Palisade after it acquired nearly
all of the assets of WooPig, which previously operated a
different restaurant at the same location. After this
acquisition, Dos Almas submitted a form to the Department of
Labor and Employment (Department), along with a copy of the
asset purchase agreement, applying for an unemployment
compensation insurance account and a determination of
3 Based on these documents, a deputy issued the requested
liability determination in August 2016. In this decision, the
deputy ruled that Dos Almas was a successor employer to
WooPig for unemployment compensation tax rate liability
purposes because it met the requirements of section
8-76-104(1)(a) due to this acquisition.
4 In May 2017, Dos Almas appealed the deputy's decision,
more than eight months after the applicable twenty-day time
limit. See § 8-74-106(1)(a), C.R.S. 2017.
Nevertheless, in July 2017, a hearing officer ruled that good
cause was shown under the applicable regulatory criteria for
permitting this untimely appeal. See Dep't of
Labor & Emp't Reg. 12.1.8, 7 Code Colo. Regs. 1101-2;
see also § 8-74-106(1)(b).
5 Consequently, an evidentiary hearing was held on this
appeal before another hearing officer. At this hearing, the
asset purchase agreement and the application by Dos Almas
were admitted into evidence, and testimony was provided by
the deputy and by one of the owners of Dos Almas.
6 After this hearing, the hearing officer found, consistent
with the owner's testimony, that Dos Almas had purchased
approximately 90% of WooPig's physical and intangible
assets. The hearing officer also made detailed factual
findings concerning specific physical and intangible assets
that Dos Almas had acquired, consistent with the asset
purchase agreement. The hearing officer further found that
Dos Almas did not retain WooPig's employees, and that,
although it hired one of those employees, that employee was
not transferred to Dos Almas as part of the asset sale.
7 Based on these factual findings, the hearing officer ruled
that Dos Almas was not a successor to WooPig under the
statutory criteria. Although the hearing officer acknowledged
that Dos Almas acquired "substantially all" of the
physical and intangible assets of WooPig, the hearing officer
ruled that Dos Almas did not acquire substantially all of the
"total" assets of WooPig because it did not retain
the employees as part of the asset sale.
8 The Division of Unemployment Insurance (Division) appealed
the hearing ...