Meulink v. Employment Division

PER CURIAM

Petitioners seek judicial review of an Employment Division’s referee’s order sustaining assessment of unemployment compensation taxes under ORS chapter 657. The assigned errors may be disposed of summarily. One challenges the authority of the Division to appoint a referee other than the one who held the hearing to review the tape recorded proceedings and render a decision. We find no error. One asserts that the facts found by the referee establish that the services performed by the putative employes are “exempt” services within the meaning of ORS 657.040(1) and (2). The referee held that petitioners “neither controlled nor directed the work of the * * * operators” and that, therefore, they had established an exemption under ORS 657.040(1). On the other hand, the referee concluded that petitioners had failed to show that the operators were “engaged in an independently established business of the same nature as that involved in the contract of service,” ORS 657.040(2), and that, therefore, they were employes. Both legal conclusions were correct.

On the notice of assessment, the Division assigned a 3.2 percent rate of tax to petitioners. We understand the Division to concede that the appropriate rate is 2.0 percent; and we remand for a correction of the assessment rate.

Affirmed as to liability for the tax; remanded for assessment of the proper rate of tax.