WAC 192-350-110   What elements must the department prove to establish "SUTA dumping"?  (1) In order to prove SUTA dumping, the department must prove by a preponderance of the evidence that:

     (a) A business is a successor or partial successor to a predecessor business under WAC 192-350-010; and

     (b) A significant purpose for the transfer of a business was to obtain a lower tax rate under RCW 50.29.063(1).

     (2) A "significant purpose" must be more than an incidental purpose, but may be one of many purposes. The department may show that a significant purpose for the transfer was to obtain a lower tax rate by factors such as:

     (a) Business records, such as corporate minutes or other documents, show that a lower tax rate was considered as part of the decision for the transfer;

     (b) An outside party, such as an accounting firm or tax advisor, recommended the transfer in order to lower the tax rate; or

     (c) The employer knew or should have known that transfer of employees to the successor would lower the tax rate and the actual effect of the transfer was to lower taxes significantly.

     (3) For additional penalties under RCW 50.29.063 (2) or (3), the department must also prove that an employer intended to knowingly evade or knowingly evaded successorship provisions or that a nonemployer knowingly promoted the evasion of successorship provisions. "Knowingly" means having actual knowledge or acting with deliberate ignorance or reckless disregard for the prohibitions. "Knowingly" includes an intent to evade, misrepresentation, or willful nondisclosure.



[Statutory Authority: RCW 50.12.010, 50.12.040, and 50.29.064. 07-23-131, § 192-350-110, filed 11/21/07, effective 1/1/08.]