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268.057 Collection of taxes.

Subdivision 1. Reports; delinquencies; penalties. (a) Any employer who knowingly fails to submit to the commissioner any tax report at the time the report is required under section 268.051, subdivision 1a, or 268.0511 shall pay to the department a penalty of up to $25 or an amount of 1-1/2 percent of taxes accrued for each month from and after the due date until the tax report is properly submitted, whichever is greater.

(b) If any employer required to submit tax reports fails to do so, or submits, willfully or otherwise, an incorrect or false tax report, the employer shall, on the demand of the commissioner sent by mail or electronic transmission, submit the tax report, or corrected report, within ten days and at the same time pay the tax due. If the employer fails within that time to submit the tax report or corrected report and pay any tax due, the commissioner shall make an estimated tax report from the commissioner's own knowledge and from information the commissioner may obtain and assess a tax on that basis. That assessed tax, plus any penalties and interest, shall be paid within ten days after notice of the amount due has been sent by mail or electronic transmission. Any assessed tax because of the failure of the employer to submit a tax report or corrected tax report shall be prima facie correct and valid, and the employer shall have the burden of establishing its incorrectness or invalidity in any subsequent action or proceeding. Whenever the delinquent employer files a tax report or corrected tax report, the commissioner may, on finding it substantially correct, accept that report.

(c) If the commissioner finds that any part of any employer's tax deficiency is due to fraud with intent to avoid payment of taxes to the fund, 50 percent of the total amount of the deficiency or $500, whichever is greater, shall be assessed as a penalty against the employer and collected in addition to the deficiency.

(d) The penalties provided for in paragraphs (a) and (c) are in addition to interest and any other penalties and shall be paid to the department and credited to the contingent account.

(e) An employer or officer or agent of an employer is guilty of a gross misdemeanor, unless the tax or other payment involved exceeds $500, in which case the person is guilty of a felony, if the individual:

(1) in order to avoid becoming or remaining a subject employer or to avoid or reduce any tax or other payment required under this chapter:

(i) makes a false statement or representation knowing it to be false; or

(ii) knowingly fails to disclose a material fact; or

(2) willfully fails or refuses to pay any taxes or other payment at the time required.

Subd. 2. Tax or payment in lieu of tax presumed valid. The tax and payment in lieu of tax, as assessed by the commissioner, including any penalties, shall be presumed to be valid and correctly determined and assessed, and the burden shall be upon the employer to show its incorrectness or invalidity. A statement by the commissioner of the amount of the tax, payment in lieu of tax, interest and penalties as determined or assessed by the commissioner, shall be admissible in evidence in any court or administrative proceeding and shall be prima facie evidence of the facts in the statement.

Subd. 3. Confession of judgment. (a) Any tax report or other form that is required to be filed with the commissioner concerning taxes or payments in lieu of taxes due, shall contain a written declaration that it is made under the penalties for willfully making a false report and shall contain a confession of judgment for the amount of the tax or payments in lieu of taxes shown due thereon to the extent not timely paid together with any interest and penalty due under this chapter.

(b) The commissioner may, within six years after the report or other form is filed, notwithstanding section 541.09, enter judgment on any confession of judgment after 20 calendar days' notice served upon the employer by mail. The judgment shall be entered by the court administrator of any county upon the filing of a photocopy of the confession of judgment along with a statement of the commissioner that the tax or payment in lieu of tax has not been paid.

Subd. 4. Costs. Any employer which fails to make and submit reports or pay any taxes or payment in lieu of taxes when due is liable to the department for any recording fees, sheriff fees, costs incurred by referral to any public or private agency outside the department, or litigation costs incurred in the collection of the amounts due or obtaining the reports.

If any check or money order, in payment of any amount due under this chapter, is not honored when presented for payment, the employer will be assessed a fee of $20 which is in addition to any other fees provided by this chapter. The fee shall be assessed regardless of the amount of the check or money order or the reason for nonpayment with the exception of processing errors made by a financial institution.

Costs due under this subdivision shall be paid to the department and credited to the administration fund.

Subd. 5. Interest on past due taxes. If taxes or payments in lieu of taxes to the fund are not paid on the date due the unpaid balance shall bear interest at the rate of one and one-half percent per month or any part thereof. Taxes or payments in lieu of taxes received by mail postmarked on a day following the date due shall be considered to have been paid on the due date if there is substantial evidence that the payment was actually deposited in the United States mail properly addressed to the department with postage prepaid thereon on or before the due date. Interest collected shall be credited to the contingent account. Interest may be waived by rules adopted by the commissioner.

Subd. 6. Interest on judgments. Notwithstanding section 549.09, if judgment is entered upon any past due tax or payment in lieu of taxes, the unpaid judgment shall bear interest at the rate specified in subdivision 5 until the date of payment.

Subd. 7. Credit adjustments, refunds. (a) If an employer makes an application for a credit adjustment of any amount paid as taxes or interest thereon within four years of the year that the payment was made, and the commissioner determines that the payment or any portion was erroneous, the commissioner shall make an adjustment and issue a credit without interest. If a credit cannot be used, the commissioner shall refund, without interest, the amount erroneously paid. The commissioner, on the commissioner's own motion, may make a credit adjustment or refund under this subdivision.

(b) If a credit adjustment or refund is denied in whole or in part, a notice of denial shall be sent to the employer by mail or electronic transmission. Within 30 calendar days after sending of the notice of denial, the employer may appeal. Proceedings on the appeal shall be conducted in accordance with section 268.105.

Subd. 8. Limitation. Nothing in sections 268.03 to 268.23, or any part thereof, shall be construed to authorize any refund of moneys due and payable under the law and rules in effect at the time such moneys were paid.

Subd. 9. Prior decisions. In the event a final decision on an appeal under section 268.105 determines the amount of taxes due under sections 268.03 to 268.23, then, if the amount, together with interest and penalties, is not paid within 30 days after the decision, the provisions of section 268.058 apply. The commissioner shall proceed thereunder, substituting a certified copy of the final decision in place of the tax report. A final decision on an appeal under section 268.105 is conclusive for all the purposes of sections 268.03 to 268.23 except as otherwise provided, and, together with the records therein made, shall be admissible in any subsequent judicial proceeding involving liability for taxes.

Subd. 10. Priorities under legal dissolutions or distributions. In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this state, including any receivership, assignment for benefit of creditors, adjudicated insolvency, composition, or similar proceeding, taxes then or thereafter due shall be paid in full prior to all other claims except claims for wages of not more than $250 to each claimant, earned within six months of the commencement of the proceedings. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension proposal, or composition, under the federal Bankruptcy Act of 1898, as amended, taxes then or thereafter due shall be entitled to such priority as is provided in that act for taxes due any state of the United States.

HIST: Ex1936 c 2 s 14; 1941 c 554 s 13; 1943 c 650 s 9; 1945 c 376 s 13; 1949 c 605 s 12,13; 1951 c 55 s 1; 1953 c 97 s 17; 1969 c 9 s 65; 1969 c 567 s 3; 1969 c 854 s 13; 1973 c 254 s 3; 1973 c 720 s 73 subds 2,3; 1975 c 108 s 1; 1975 c 302 s 3,4; 1975 c 336 s 22,23; 1977 c 430 s 25 subd 1; 1978 c 618 s 2; 1978 c 674 s 60; 1980 c 508 s 11-13; 3Sp1981 c 2 art 1 s 33; 1Sp1982 c 1 s 34,35; 1983 c 372 s 39; 1985 c 248 s 70; 1Sp1985 c 14 art 9 s 75; 1986 c 444; 1987 c 362 s 26; 1987 c 385 s 28-30; 1989 c 65 s 12; 1989 c 209 art 2 s 1; 1993 c 67 s 11; 1994 c 483 s 1; 1995 c 54 s 13-15; 1996 c 417 s 24,31; 1997 c 66 s 66-69,79,80; 1998 c 265 s 14-17,44

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Revisor of Statutes