Section 108.22. Timely reports, notices and payments.

 

(1)  

(a) Except as provided in par. (cm) , if any employer, other than an employer which has ceased business and has not paid or incurred a liability to pay wages in any quarter following the cessation of business, is delinquent in making by the assigned due date any payment to the department required of it under this chapter, the employer shall pay interest on the delinquent payment at that monthly rate that annualized is equal to 9 percent or to 2 percent more than the prime rate as published in the Wall Street Journal as of September 30 of the preceding year, whichever is greater, for each month or fraction thereof that the employer is delinquent from the date such payment became due. If any such employer is delinquent in filing any quarterly report under s. 108.205 (1) by the assigned due date, the department may assess a tardy filing fee to the employer for each delinquent quarterly report in the amount of $100 or $20 per employee, as reported on the employer's most recent quarterly report, whichever is greater, or, if the report is filed within 30 days after the date that the department assesses a tardy filing fee, in the amount of $50. If the department cannot determine the number of the employer's employees from the employer's most recent quarterly report, the department may reasonably estimate the number of the employer's employees for purposes of this paragraph.

(ac) In addition to any fee assessed under par. (a) , the department may assess an employer or employer agent that is subject to the reporting requirement under s. 108.205 (2) and that fails to file its report in the manner and form prescribed under that subsection a penalty of $20 for each employee whose information is not reported in the manner and form prescribed under s. 108.205 (1m) (b) or (2) .

(ad)

1. An employer agent that is subject to the reporting requirements under s. 108.17 (2g) and that fails to file a contribution report in accordance with s. 108.17 (2g) may be assessed a penalty by the department in the amount of $25 for each employer whose report is not filed electronically in the manner and form prescribed by the department.

2. An employer that is subject to the reporting requirements under s. 108.17 (2b) and that fails to file a contribution report in accordance with s. 108.17 (2b) may be assessed a penalty by the department in the amount of $25 for each report that is not filed in accordance with s. 108.17 (2b) .

(ae) For purposes of par. (ac) , the number of employees employed by an employer is the total number of employees employed by the employer at any time during the reporting period.

(af) In addition to the fee assessed under par. (a) , the department may assess an employer or employer agent that is subject to a requirement to make contributions by means of an electronic funds transfer under s. 108.17 (7) and that pays contributions by any method inconsistent with s. 108.17 (7) a penalty of the greater of $50 or an amount equal to one-half of one percent of the total contributions paid by the employer or employer agent for the quarter in which the violation occurs.

(am) The interest, penalties, and tardy filing fees levied under pars. (a) , (ac) , (ad) , and (af) shall be paid to the department and credited to the administrative account.

(b) If the due date of a report or payment under s. 108.15 (5) (b) , 108.151 (5) (f) or (7) , 108.155 , 108.16 (8) , 108.17 , or 108.205 would otherwise be a Saturday, Sunday, or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday, or legal holiday under state or federal law.

(c) Any report or payment, except a payment required by s. 108.15 (5) (b) , 108.151 (5) (f) or (7) , or 108.155 , to which this subsection applies is delinquent, within the meaning of par. (a) , unless it is received by the department, in the form prescribed by law or rule of the department, no later than its due date as determined under par. (b) . Any payment required by s. 108.15 (5) (b) , 108.151 (5) (f) or (7) , or 108.155 is delinquent, within the meaning of par. (a) , unless it is received by the department, in the form prescribed by law, no later than the last day of the month in which it is due.

(cm) In limited circumstances as prescribed by rule of the department, the department may waive or decrease the interest charged under par. (a) or s. 108.17 (2c) (c) .

(d) The tardy payment fee or filing fee may be waived by the department if the employer later files the required report or makes the required payment and satisfies the department that the report or payment was tardy due to circumstances beyond the employer's control.

(e) Any notice filed under s. 108.15 (3) (a) or (b) , 108.151 (3) (a) , or 108.152 (2) (a) or assurance filed under s. 108.151 (2) (a) or (4) (a) 2. is timely if it is received by the department by December 31 or, if mailed, is either postmarked no later than that due date or is received by the department no later than 3 days after that due date.

(f) Any notice of assurance filed under s. 108.151 (2) (c) is timely if it is received by the department by its due date or, if mailed, is either postmarked no later than that due date or is received by the department no later than 3 days after that due date.

(1m)  If an employer owes any contributions, reimbursements, or assessments under s. 108.15 , 108.151 , 108.155 , or 108.19 (1m) , interest, fees, or payments for forfeitures or other penalties to the department under this chapter and fails to pay the amount owed, the department has a perfected lien upon the employer's right, title, and interest in all of its real and personal property located in this state in the amount finally determined to be owed, plus costs. Except where creation of a lien is barred or stayed by bankruptcy or other insolvency law, the lien is effective when the department issues a determination of the amount owed under s. 108.10 (1) and shall continue until the amount owed, plus costs and interest to the date of payment, is paid. If a lien is initially barred or stayed by bankruptcy or other insolvency law, it shall become effective immediately upon expiration or removal of such bar or stay. The perfected lien does not give the department priority over lienholders, mortgagees, purchasers for value, judgment creditors, and pledges whose interests have been recorded before the department's lien is recorded.

(1r)  If any employing unit or any individual who is found personally liable under sub. (9) fails to pay to the department any amount found to be due it in proceedings pursuant to s. 108.10 , provided that no appeal or review permitted under s. 108.10 is pending and that the time for taking an appeal or review has expired, the department or any authorized representative may offset the amount against a federal tax refund as provided in 26 USC 6402 (f).

(2)  

(a)

1. If any employing unit or any individual who is found personally liable under sub. (9) fails to pay to the department any amount found to be due it in proceedings pursuant to s. 108.10 , provided that no appeal or review permitted under s. 108.10 is pending and that the time for taking an appeal or review has expired, the department or any authorized representative may issue a warrant directed to the clerk of circuit court for any county of the state.

2. The clerk of circuit court shall enter in the judgment and lien docket the name of the employing unit or individual mentioned in the warrant and the amount of the contributions, interest, costs and other fees for which the warrant is issued and the date when such copy is entered.

3. A warrant entered under subd. 2. shall be considered in all respects as a final judgment constituting a perfected lien upon the employing unit's or individual's right, title and interest in all real and personal property located in the county where the warrant is entered.

4. The department or any authorized representative may thereafter file an execution with the clerk of circuit court for filing by the clerk of circuit court with the sheriff of any county where real or personal property of the employing unit or individual is found, commanding the sheriff to levy upon and sell sufficient real and personal property of the employing unit or individual to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue thereof within 60 days after receipt of the warrant.

(b) The clerk of circuit court shall accept, file and enter each warrant under par. (a) and each satisfaction, release, or withdrawal under subs. (5) , (6) , and (8m) in the judgment and lien docket without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31 unless a different billing period is agreed to between the clerk of circuit court and the department. The fees shall then be paid by the department, but the fees provided by s. 814.61 (5) for entering the warrants shall be added to the amount of the warrant and collected from the employing unit or individual when satisfaction or release is presented for entry.

(3)  The department may issue a warrant of like terms, force and effect to any employee or other agent of the department, who may file a copy of such warrant with the clerk of circuit court of any county in the state, and thereupon such clerk shall enter the warrant in the judgment and lien docket and the warrant shall become a lien in the same manner, and with the same force and effect, as provided in sub. (2) . In the execution of the warrant, the employee or other agent shall have all the powers conferred by law upon a sheriff, but shall not be entitled to collect from the employer any fee or charge for the execution of the warrant in excess of the actual expenses paid in the performance of his or her duty.

(4)  If a warrant be returned not satisfied in full, the department shall have the same remedies to enforce the amount due for contributions, interest, and costs and other fees as if the department had recovered judgment against the employing unit for the same and an execution returned wholly or partially not satisfied.

(5)  When the contributions set forth in a warrant together with interest and other fees to date of payment and all costs due the department have been paid to it, the department shall issue a satisfaction of the warrant and file it with the clerk of circuit court. The clerk of circuit court shall immediately enter a satisfaction of the judgment on the judgment and lien docket. The department shall send a copy of the satisfaction to the employer.

(6)  The department, if it finds that the interests of the state will not thereby be jeopardized, and upon such conditions as it may exact, may issue a release of any warrant with respect to any real or personal property upon which the warrant is a lien or cloud upon title, and such release shall be entered of record by the clerk upon presentation to the clerk and payment of the fee for filing said release and the same shall be held conclusive that the lien or cloud upon the title of the property covered by the release is extinguished.

(7)  At any time after the filing of a warrant, the department may commence and maintain a garnishee action as provided by ch. 812 or may use the remedy of attachment as provided by ch. 811 for actions to enforce a judgment. The place of trial of such an action may be either in Dane County or the county where the debtor resides and shall not be changed from the county in which such action is commenced, except upon consent of the parties.

(8)  

(a) If benefits are erroneously paid to an individual, the individual's liability to reimburse the fund for the overpayment may be set forth in a determination or decision issued under s. 108.09 . Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c) . If any decision of an appeal tribunal, the commission or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c) , the tribunal, commission or court shall remand the issue to the department for a determination.

(b)

1. To recover any overpayment to an individual which is not otherwise repaid or recovery of which has not been waived, the department may recoup the amount of the overpayment by:

a. Deducting the amount of the overpayment from benefits the individual would otherwise be eligible to receive;

b. Filing a warrant against the liable individual in the same manner as is provided in this section for collecting delinquent payments from employers;

c. Setting off the amount of the overpayment against a refund or disbursement due pursuant to s. 71.93 ; or

d. If the overpayment results from fraud or failure to report earnings, offsetting the amount of the overpayment against a federal tax refund as provided in 26 USC 6402 (f).

2. To recover any assessment under s. 108.04 (11) (cm) , the department may file a warrant against the liable individual in the same manner as is provided in this section for collecting delinquent payments from employers.

3. Any recovery under this paragraph is limited to the actual amount of the overpayment or assessment and any costs and disbursements, without interest.

(bh) To recover any penalty under s. 108.04 (11) (bh) , the department may recoup the amount of the penalty by filing a warrant against a liable individual in the same manner as is provided in this section for collecting delinquent payments from employers.

(c)

1. The department shall waive recovery of benefits that were erroneously paid if:

a. The overpayment was the result of a departmental error; and

b. The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f) , or because of a claimant's false statement or misrepresentation.

2. If a determination or decision issued under s. 108.09 is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1. a.

(8e)  If the department determines a payment has been made to an unintended recipient erroneously without fault on the part of the intended payee or payee's authorized agent, the department may issue the correct payment to the intended payee if necessary, and may recover the amount of the erroneous payment from the recipient under this section or s. 108.225 or 108.245 .

(8m)  If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any liens attached by it.

(9)  An individual who is an officer, employee, member, manager, partner, or other responsible person holding at least 20 percent of the ownership interest of a corporation, limited liability company, or other business association subject to this chapter, and who has control or supervision of or responsibility for filing any required contribution reports or making payment of contributions, and who willfully fails to file such reports or to make such payments to the department, or to ensure that such reports are filed or that such payments are made, may be found personally liable for such amounts, including interest, tardy payment or filing fees, costs and other fees, in the event that after proper proceedings for the collection of such amounts, as provided in this chapter, the corporation, limited liability company, or other business association is unable to pay such amounts to the department. Ownership interest of a corporation, limited liability company, or other business association includes ownership or control, directly or indirectly, by legally enforceable means or otherwise, by the individual, by the individual's spouse or child, by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them, and such ownership interest of a parent corporation, limited liability company, or other business association of which the corporation, limited liability company, or other business association unable to pay such amounts is a wholly owned subsidiary. The personal liability of such officer, employee, member, manager, partner, or other responsible person as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the corporation, limited liability company, or other business association and shall be set forth in a determination or decision issued under s. 108.10 .

1973 c. 247 ; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1975 c. 343 ; 1979 c. 52 ; 1981 c. 36 ; 1985 a. 17 , 29 ; 1987 a. 38 ; 1989 a. 77 ; 1991 a. 89 ; 1993 a. 112 , 373 ; 1995 a. 224 ; 1997 a. 39 ; 1999 a. 15 ; 2001 a. 35 ; 2003 a. 197 ; 2005 a. 86 ; 2007 a. 59 ; 2009 a. 287 ; 2011 a. 198 , 236 ; 2013 a. 36 , 276 ; 2015 a. 86 , 334 . Cross-reference: See also chs. DWD 110 and 111 , Wis. adm. code. Only the department may waive collection of an overpayment. Topp v. LIRC, 133 Wis. 2d 422 , 395 N.W.2d 815 (Ct. App. 1986). Unemployment compensation warrants may be docketed by a clerk of circuit court prior to issuance of the warrants to the sheriff for levy purposes. 61 Atty. Gen. 148. The department has discretion whether to seek recovery of overpayments due to the department's error. 67 Atty. Gen. 228.