NASSAUSUFFOLK

Very often to get them to change the auditor, you need to change the location of where the records will be made available to a different county.  Then they usually transfer it to another office.  The further from their office the more likely the transfer.  (i.e. Manhattan to Suffolk is better then Manhattan to Brooklyn.)

------------------------------
Mark Stone
SALES TAX DEFENSE, LLC
mstone@salestaxdefense.com
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Original Message:
Sent: 11-23-2022 09:52 AM
From: Marvin Gruza
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

A few years ago my client had a NY SUI audit out of the local office

We really felt that both the auditor and supervisor refused to entertain or even listen to fair arguments including the fact that the alleged workers were out of the country and truly independent. Their response was "if you do not like it, take it to appeal". The amounts involved were just not worth it.

Now about 3 years later we received an audit letter from the same auditor. Given what we feel was not a fair shake in the past we are tempted to ask to have it transferred to a different office but are concerned about how it will be viewed and what negativity will sent along with the case to the new office if we do and get the transfer.

What are the feelings of others, have you been in a similar situation? Any ideas?

Thank you

MG

As you can well imagine, DOL takes a hard line on misclassification.  As a practical matter, once an employer pays up, even strictly for pragmatic/cost related reasons, barring a material change in the relationship with putative employees, the presumption entailed by that would apply to the re-audit. Your client had a classic 3 years ex post facto re-audit.  Under these circumstances, transferring the case is unlikely to produce a different result, especially in the current environment and given  US DOL's position. The real question is whether your client made any changes in its business operations since the initial audit. 

Best wishes-Happy Thanksgiving!

------------------------------
Ruth B. Kraft, Esq.
Partner and Chair, Employment Law
Vigorito, Barker, Patterson, Nichols & Porter, LLP
300 Garden City Plaza
Garden City, New York 11530
Ruth.Kraft@vbpplaw.com
516-282-3355
Cell 516-353-3306
R.Kraft@vbpnplaw.com
------------------------------

Original Message:
Sent: 11-23-2022 09:52 AM
From: Marvin Gruza
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

A few years ago my client had a NY SUI audit out of the local office

We really felt that both the auditor and supervisor refused to entertain or even listen to fair arguments including the fact that the alleged workers were out of the country and truly independent. Their response was "if you do not like it, take it to appeal". The amounts involved were just not worth it.

Now about 3 years later we received an audit letter from the same auditor. Given what we feel was not a fair shake in the past we are tempted to ask to have it transferred to a different office but are concerned about how it will be viewed and what negativity will sent along with the case to the new office if we do and get the transfer.

What are the feelings of others, have you been in a similar situation? Any ideas?

Thank you

MG

Marvin, you did the right thing.  Just settle.  There are too many useless buffoons in the NYS Labor department who have marching orders to deny, regardless of the facts and circumstances.  It is a waste of time and money to appeal, and even later go to the third department to appeal the labor departments kangaroo court decision.

------------------------------
M Daniel Martin
M. DANIEL MARTIN, CPA EA
Babylon NY
M Daniel
------------------------------

Original Message:
Sent: 11-23-2022 09:52 AM
From: Marvin Gruza
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

A few years ago my client had a NY SUI audit out of the local office

We really felt that both the auditor and supervisor refused to entertain or even listen to fair arguments including the fact that the alleged workers were out of the country and truly independent. Their response was "if you do not like it, take it to appeal". The amounts involved were just not worth it.

Now about 3 years later we received an audit letter from the same auditor. Given what we feel was not a fair shake in the past we are tempted to ask to have it transferred to a different office but are concerned about how it will be viewed and what negativity will sent along with the case to the new office if we do and get the transfer.

What are the feelings of others, have you been in a similar situation? Any ideas?

Thank you

MG

I will say that it is possible to win these audits and I ruled in employers' favor almost half the time.  To be honest, winning strategies need to start at the inception of the audit and not just before hearing.  Next, it takes a well written ALJ decision which makes it more difficult for the UIAB to reverse.  It is far more difficult to succeed at the Article 78 level in the court of record as under what we call the Chevron principle, the decision of an administrative agency/tribunal is afforded great deference.

------------------------------
Ruth B. Kraft, Esq.
Partner and Chair, Employment Law
Vigorito, Barker, Patterson, Nichols & Porter, LLP
300 Garden City Plaza
Garden City, New York 11530
Ruth.Kraft@vbpplaw.com
516-282-3355
Cell 516-353-3306
R.Kraft@vbpnplaw.com
------------------------------

Original Message:
Sent: 11-25-2022 08:25 PM
From: M Daniel Martin
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

Marvin, you did the right thing.  Just settle.  There are too many useless buffoons in the NYS Labor department who have marching orders to deny, regardless of the facts and circumstances.  It is a waste of time and money to appeal, and even later go to the third department to appeal the labor departments kangaroo court decision.

------------------------------
M Daniel Martin
M. DANIEL MARTIN, CPA EA
Babylon NY
M Daniel

Original Message:
Sent: 11-23-2022 09:52 AM
From: Marvin Gruza
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

A few years ago my client had a NY SUI audit out of the local office

We really felt that both the auditor and supervisor refused to entertain or even listen to fair arguments including the fact that the alleged workers were out of the country and truly independent. Their response was "if you do not like it, take it to appeal". The amounts involved were just not worth it.

Now about 3 years later we received an audit letter from the same auditor. Given what we feel was not a fair shake in the past we are tempted to ask to have it transferred to a different office but are concerned about how it will be viewed and what negativity will sent along with the case to the new office if we do and get the transfer.

What are the feelings of others, have you been in a similar situation? Any ideas?

Thank you

MG

I was about to settle for $88 with the NYS UI auditor.  Suddenly, his supervisor walked into my office and without looking at a single piece of paper, arbitrarily declared all these people are employees. She would not answer a single question, but stated that was the position of the NYS DOL.
A few weeks later, with witnesses and exhibits the ALJ ruled in our favor.  Twenty-two days later, the Commissioner filed an appeal.  In spite of the technicality of a late appeals filing, the UIAB ignored half of the transcript and ruled against my client.  It was as if my witnesses never existed.
The Chevron deference???  In the 3rd AD, the judge wrote an opinion two months earlier in a tort case that involved an independent contractor relationship.  The facts, save for the tort action, were identical to our situation including the industry.  The judge came up with "new law" and wrote that an independent contractor is different for the NYS DOL than in NYS civil tort action.
I am sorry I did not know you when the commissioner filed the appeal.

------------------------------
M Daniel Martin
M. DANIEL MARTIN, CPA EA
Babylon NY
M Daniel
------------------------------

Original Message:
Sent: 11-25-2022 08:42 PM
From: Ruth Kraft
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

I will say that it is possible to win these audits and I ruled in employers' favor almost half the time.  To be honest, winning strategies need to start at the inception of the audit and not just before hearing.  Next, it takes a well written ALJ decision which makes it more difficult for the UIAB to reverse.  It is far more difficult to succeed at the Article 78 level in the court of record as under what we call the Chevron principle, the decision of an administrative agency/tribunal is afforded great deference.

------------------------------
Ruth B. Kraft, Esq.
Partner and Chair, Employment Law
Vigorito, Barker, Patterson, Nichols & Porter, LLP
300 Garden City Plaza
Garden City, New York 11530
Ruth.Kraft@vbpplaw.com
516-282-3355
Cell 516-353-3306
R.Kraft@vbpnplaw.com

Original Message:
Sent: 11-25-2022 08:25 PM
From: M Daniel Martin
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

Marvin, you did the right thing.  Just settle.  There are too many useless buffoons in the NYS Labor department who have marching orders to deny, regardless of the facts and circumstances.  It is a waste of time and money to appeal, and even later go to the third department to appeal the labor departments kangaroo court decision.

------------------------------
M Daniel Martin
M. DANIEL MARTIN, CPA EA
Babylon NY
M Daniel

Original Message:
Sent: 11-23-2022 09:52 AM
From: Marvin Gruza
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

A few years ago my client had a NY SUI audit out of the local office

We really felt that both the auditor and supervisor refused to entertain or even listen to fair arguments including the fact that the alleged workers were out of the country and truly independent. Their response was "if you do not like it, take it to appeal". The amounts involved were just not worth it.

Now about 3 years later we received an audit letter from the same auditor. Given what we feel was not a fair shake in the past we are tempted to ask to have it transferred to a different office but are concerned about how it will be viewed and what negativity will sent along with the case to the new office if we do and get the transfer.

What are the feelings of others, have you been in a similar situation? Any ideas?

Thank you

MG

Yes, UI tries to claim it can make its own law-even when the IRS rules to the contrary-or, even better, the federal courts have done so, it is insane and infuriating! I lecture on misclassification and this galls me to no end. The pending US DOL interpretation, allowing literally any factor to take precedence, is about to create utter chaos given the way the NYS agencies are interpreting the law.  I have created  contractual work-arounds applicable to some industries. That said, not all industries are amenable to B2B contracting.  This is all about revenue generation for the state, not jurisprudence.

------------------------------
Ruth B. Kraft, Esq.
Partner and Chair, Employment Law
Vigorito, Barker, Patterson, Nichols & Porter, LLP
300 Garden City Plaza
Garden City, New York 11530
Ruth.Kraft@vbpplaw.com
516-282-3355
Cell 516-353-3306
R.Kraft@vbpnplaw.com
------------------------------

Original Message:
Sent: 11-25-2022 09:27 PM
From: M Daniel Martin
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

I was about to settle for $88 with the NYS UI auditor.  Suddenly, his supervisor walked into my office and without looking at a single piece of paper, arbitrarily declared all these people are employees. She would not answer a single question, but stated that was the position of the NYS DOL.
A few weeks later, with witnesses and exhibits the ALJ ruled in our favor.  Twenty-two days later, the Commissioner filed an appeal.  In spite of the technicality of a late appeals filing, the UIAB ignored half of the transcript and ruled against my client.  It was as if my witnesses never existed.
The Chevron deference???  In the 3rd AD, the judge wrote an opinion two months earlier in a tort case that involved an independent contractor relationship.  The facts, save for the tort action, were identical to our situation including the industry.  The judge came up with "new law" and wrote that an independent contractor is different for the NYS DOL than in NYS civil tort action.
I am sorry I did not know you when the commissioner filed the appeal.

------------------------------
M Daniel Martin
M. DANIEL MARTIN, CPA EA
Babylon NY
M Daniel

Original Message:
Sent: 11-25-2022 08:42 PM
From: Ruth Kraft
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

I will say that it is possible to win these audits and I ruled in employers' favor almost half the time.  To be honest, winning strategies need to start at the inception of the audit and not just before hearing.  Next, it takes a well written ALJ decision which makes it more difficult for the UIAB to reverse.  It is far more difficult to succeed at the Article 78 level in the court of record as under what we call the Chevron principle, the decision of an administrative agency/tribunal is afforded great deference.

------------------------------
Ruth B. Kraft, Esq.
Partner and Chair, Employment Law
Vigorito, Barker, Patterson, Nichols & Porter, LLP
300 Garden City Plaza
Garden City, New York 11530
Ruth.Kraft@vbpplaw.com
516-282-3355
Cell 516-353-3306
R.Kraft@vbpnplaw.com

Original Message:
Sent: 11-25-2022 08:25 PM
From: M Daniel Martin
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

Marvin, you did the right thing.  Just settle.  There are too many useless buffoons in the NYS Labor department who have marching orders to deny, regardless of the facts and circumstances.  It is a waste of time and money to appeal, and even later go to the third department to appeal the labor departments kangaroo court decision.

------------------------------
M Daniel Martin
M. DANIEL MARTIN, CPA EA
Babylon NY
M Daniel

Original Message:
Sent: 11-23-2022 09:52 AM
From: Marvin Gruza
Subject: asking for change of auditor/audit office for NY UI - how will it be viewed

A few years ago my client had a NY SUI audit out of the local office

We really felt that both the auditor and supervisor refused to entertain or even listen to fair arguments including the fact that the alleged workers were out of the country and truly independent. Their response was "if you do not like it, take it to appeal". The amounts involved were just not worth it.

Now about 3 years later we received an audit letter from the same auditor. Given what we feel was not a fair shake in the past we are tempted to ask to have it transferred to a different office but are concerned about how it will be viewed and what negativity will sent along with the case to the new office if we do and get the transfer.

What are the feelings of others, have you been in a similar situation? Any ideas?

Thank you

MG