PART XI
REDETERMINATIONS AND APPEALS
11.1.1 Statutory References: 8-73-102 (3), 8-74-102 (2), 8-76-103 (4), 8-76-110 (3) (e), and 8-76-113, C.R.S.
11.1.2 Redetermination of Assessments. An employer who wishes to protest a notice of assessment of taxes shall have fifteen calendar days after the date notification was provided in which to file a written request for redetermination of said assessment or to file a correct report of taxable wages paid during the tax period or periods.
11.1.3 Redetermination of Quarterly Statement of Benefits Charged to Employer’s Account. An employer who wishes to protest a quarterly statement of benefits charged to his or her account shall have sixty calendar days after the date notification was provided to file a written notice for redetermination of the accuracy of the statement.
11.1.4 Redetermination of Tax Rates. An employer who wishes to protest a notice of his or her tax rate shall have fifteen calendar days after the date notification was provided in which to file a written request for redetermination of the tax rate.
11.1.5 Redetermination of Recomputations. Any interested party who wishes to protest a recomputation made by the division shall have fifteen calendar days after the date notification of the notice of correction was provided to file a written request for redetermination of the matters corrected.
11.1.6 Monetary Determinations. Any interested party who wishes to protest a monetary determination made by the division on a claim for benefits shall file a written request for redetermination with the division within the benefit year or extended-benefit period for such claim.
11.1.7 Reimbursement Bill. Any employer who wishes to protest a bill for payments in lieu of taxes shall have fifteen calendar days after the date notification was provided in which to file a written request for redetermination of the amount due.
11.1.8 Timeliness of Request for Review. Any determination made by the division that is subject to redetermination under this section shall be deemed final, and any information contained in any document or notice issued by the division that is subject to redetermination under this section shall be deemed correct unless the party files a timely request for redetermination in accordance with this regulation or establishes to the satisfaction of the division that said party had good cause for the failure to do so. Good cause for failure to file a timely request for redetermination shall have the meaning set forth in regulation 12.1.8.
11.1.9 Form of Request. Each request for redetermination filed pursuant to this section shall specify in detail the errors, omissions, or other grounds upon which the party relies.
11.1.10 Redetermination Decision. Upon receipt of a request for redetermination, the division shall review the request, investigate the matters specified, and give the parties notice of its redetermination decision in accordance with regulation 1.3.11.1.
11.1.11 Appeals From Redeterminations. Any party who wishes to appeal from a redetermination decision shall file a written notice of appeal with the division. No such appeal shall be heard unless the notice of appeal has been postmarked or received by the division within fifteen calendar days from the date the notice of such redetermination is provided by the division to the appealing party in accordance with regulation 1.3.11.1, unless the party establishes good cause for failure to file a timely notice of appeal. Appeals shall be heard pursuant to 8-74-103 to 8-74-109 and 8-76-113, C.R.S., and regulation 11.2.
11.1.12 Benefit Claims Not Covered. Except for monetary eligibility questions subject to redetermination pursuant to regulation 11.1.6, this regulation 11.1 does not authorize the adjudication in the redetermination process of the merits of claims for benefits, which are subject to the appeal process established in 8-74-101 to 8-74-109, C.R.S., and regulation 11.2.
11.1.13 Limitation on Review. Review and redetermination by the division under this section shall be limited to the matters covered by the document protested. No protest by an employer under regulation 11.1.4 of a notice of the employer's tax rate shall permit inquiry into the validity of any assessment of taxes subject to review and redetermination under regulation 11.1.2 nor of any benefit charge to the employer's account subject to review and redetermination under regulation 11.1.3, unless the employer has first protested the assessment or charge pursuant to regulations 11.1.2 or 11.1.3.
11.1.14 Written Notices, Reports, and Requests. For purposes of this regulation 11.1, written notices, reports, and requests shall have the meaning set forth in regulation 1.3.11.1.
11.2.1 Statutory References: 8-72-108, 8-74-101 to 8-74-109, 8-76-103 (4), 8-76-113, and 8-80-102, C.R.S.
11.2.2 Scope of Section. The procedures described herein deal with appeals on disputed claims under 8-74-101, et. seq., C.R.S.; appeals from determinations of liability, determinations of coverage, and seasonality determinations under 8-76-113 (1), C.R.S.; appeals from redeterminations regarding quarterly statements of benefits charged to an employer's account under 8-76-103 (4), C.R.S.; appeals from redeterminations as to an assessment of taxes, rate of tax, recomputation of rate, or correction of any such matter under 8-76-113 (2), C.R.S.; redeterminations of reimbursement billings under 8-76-110 (3)(e), C.R.S.; and appeals from redeterminations of monetary eligibility under 8-74-102 (2), C.R.S.
11.2.3 Procedure for Filing Appeals to Hearing Officer. Appeals from decisions of a deputy on a claim for benefits, from tax liability and coverage determinations, from seasonality determinations, and from redeterminations shall be by written notice of appeal that should state specific reasons and shall be filed in the central office of the division in person, by mail, by facsimile machine, or by division-approved electronic means. For purposes of this regulation 11.2.3, the term “written” shall have meaning set forth in regulation 1.3.11. The notices of appeal in matters involving a disputed claim may also be filed with a public employment office. The division shall provide a copy of such notice of appeal to each interested party. When an appeal of a deputy’s decision on a claim for benefits is received, the division shall provide to interested parties and their authorized representatives, if any, copies of relevant separation information in the claim file submitted by the parties. The division shall also provide to interested parties and their authorized representatives, if any, a copy of the form(s) used to document additional fact-finding information and to reflect those issues considered in rendering the decision.
11.2.4 Notice of Hearing. Notices, specifying time and place, shall be mailed, transmitted by facsimile machine, or transmitted by electronic means to each party to the appeal at least ten calendar days before the scheduled hearing date. If the hearing is to be conducted by telephone, the notice will so inform the parties and include instructions.
11.2.5 Disqualification of a Hearing Officer. Challenges to the interest of a hearing officer in an appeal scheduled to be heard by said hearing officer shall be heard and decided by that hearing officer or, in his or her discretion, referred to the panel.
11.2.6 Prehearing Conference. The chief hearing officer or designee may, upon the application of any party or on his or her own motion, convene a prehearing conference to discuss the issues on appeal, the evidence to be presented, and any other relevant matters that may simplify further proceedings.
11.2.7 Prehearing Discovery in Tax Cases. In cases arising under 8-76-110 (3)(e), and 8-76-113, C.R.S., the chief hearing officer or designee may permit the parties to engage in prehearing discovery, insofar as practicable, in accordance with the Colorado Rules of Civil Procedure and, in connection therewith, shorten or extend any applicable response time.
11.2.8 Limitation on Discovery. No party to an appeal proceeding may seek discovery without having first obtained an order of the chief hearing officer or designee and only upon a showing of necessity for such discovery.
11.2.9 Conduct of Hearing. Hearings shall be conducted informally and in such manner as to ascertain the substantive rights of the parties. The appealing party shall have the burden of presenting evidence that supports the party's position on the issues raised by the appeal. Parties to the appeal may present any pertinent evidence. The taking of evidence in a hearing shall be controlled by the hearing officer in a manner best suited to ascertain the facts, to safeguard the rights of the parties, and to fully and fairly develop the record. Computer records of the division concerning continued weeks claimed or payment for continued weeks claimed, including payments made by check or electronic benefits transfer, are admissible as evidence and may be filed in the record as evidence without formal identification if relevant to the issues raised by the appeal. However, parties shall be advised during the hearing of the documents to be considered. Prior to taking evidence, the hearing officer shall state the issues and the order in which evidence will be received. An interested party may not present factual issues at a hearing before a hearing officer that have not been provided to the other interested party(ies), as shown by the claim file. If good cause, as set forth in regulation 12.1.8, is found for a party not providing proper notice of the factual issues it intends to present, the hearing officer may adjourn the hearing. If good cause is not found, the hearing shall proceed as scheduled, and those new factual issues raised shall not be considered. An interested party may, at the hearing, waive the requirement that it be provided with proper notice. The hearing officer shall examine such parties, and opposing parties may cross-examine each other and the others’ witnesses. The hearing officer, after notice to the parties, may hear such additional evidence as deemed necessary. All testimony shall be presented under oath and the hearing shall be timed. At the conclusion of the hearing, the hearing officer shall inform the parties of the time consumed by the hearing and the approximate cost of the preparation of the transcript of the hearing and shall instruct the parties that an order will be promptly issued as to his or her decision in reference to the issues brought forth at the hearing. The hearing officer shall also instruct the parties that such decision may be appealed and that the appellant must bear the cost of preparation of the transcript. The sum paid may, at a later date, be reimbursed by the panel without interest, if such appeal results in a decision favorable to the appellant. It shall also be stated to the parties that the cost of preparation of the transcript may be waived pursuant to regulation 11.2.15.
.1 Hearings shall normally be scheduled to be conducted in person. However, any interested party, authorized representative, or witness may participate by telephone at their option.
.2 The in-person presence of some parties or witnesses at the hearing shall not prevent the participation of other parties or witnesses by telephone.
.3 Sworn testimony from witnesses shall be received during telephone hearings under the same regulations as other hearings.
.4 An interested party to a hearing must submit to the hearing officer any documents or any subpoenaed documents and any physical exhibits that can be reproduced that he or she intends to introduce at the hearing in time to ensure that the hearing officer receives the documents and physical exhibits before the date of the scheduled hearing. Prior to the date of the scheduled hearing, such party must also provide copies of all documents and physical exhibits sent to the hearing officer to any other interested party to the hearing and to that interested party's representative as shown on the hearing notice. Failure to provide the hearing officer, the opposing party, and such party's representative with copies of such documents and physical exhibits may result in their exclusion from the record or may result in adjournment of the hearing by the hearing officer pursuant to regulation 11.2.11 unless waived on the record by both parties.
.5 Based on the individual circumstances of a case, the chief hearing officer or designee shall have the discretion to determine which method of participation, in person or by telephone, will best achieve the purposes of this regulation 11.2.9 and to order the parties to participate in that manner.
11.2.10 Stipulations of Fact. With the consent of the hearing officer, parties to an appeal may stipulate to the facts in writing. Parties may also stipulate to facts on the record at the hearing before the hearing officer. The hearing officer may decide the case on the facts stipulated or, in his or her discretion, set the appeal for hearing and take such additional evidence as is deemed necessary.
11.2.11 Adjournment of Hearings. The hearing officer may grant requests for further hearing when, in his or her own best judgment, such further hearing will result in adducing all necessary evidence and be equitable to the parties.
11.2.12 Postponements of Hearings. Postponements of hearings shall not be granted without the showing of necessity therfor by the requesting party.
11.2.13 Failure to Appear.
.1 In the event the appealing party fails to appear at the time and place scheduled for the hearing before the hearing officer for which notice has been provided, such nonappearance shall constitute a withdrawal of the appeal, and the decision that was the subject of the appeal shall become final, unless the party establishes, pursuant to part XII of the regulations, that he or she had good cause for the failure to appear. Written notice that the appeal has been dismissed shall be provided to the interested parties named in the caption. If a written request that the hearing be rescheduled is made, the request must be filed with the division within fifteen calendar days of the date the dismissal notice was issued by the division. The date of filing shall be determined by the postmark, if mailed, the date received, if filed in person, the receipt date encoded on a facsimile document, or the receipt date recorded by the division’s automated systems if filed using division-approved electronic means. An untimely request that a hearing be rescheduled may be permitted by the division for good cause shown, pursuant to the procedure set forth in part XII of the regulations.
.2 In the event that any other interested party fails to appear for a scheduled hearing, and a decision is issued by a hearing officer on the merits of the appeal, such party may request that a new hearing be scheduled either by filing a written request with the panel or filing a written appeal from the hearing officer's decision containing such request, postmarked or received by the panel within fifteen calendar days after the date of mailing of the hearing officer's decision, and establishing, pursuant to part XII of the regulations, that he or she had good cause for the failure to appear for the appeal hearing. An untimely request for a new hearing may be permitted by the panel for good cause shown, pursuant to the procedure set forth in part XII of the regulations. If it is determined the party has shown good cause for the failure to appear, the hearing officer's decision that was issued on the merits of the appeal shall be vacated and a new hearing scheduled forthwith.
.3 When an interested party's attorney or other designated representative appears for and participates in the scheduled hearing on the party's behalf, the party shall be deemed to have appeared for the hearing, for the purposes of this part XI of the regulations.
11.2.14 Decision of the Hearing Officer. The hearing officer shall announce, in written form, findings of fact, decision, and reasons therfor, as soon as practicable after a hearing, and a copy thereof shall be provided to all parties to the appeal. The decision shall contain the statement: “The approximate cost of the transcript of this hearing is $______ and is to be paid by the appellant, unless otherwise waived pursuant to regulation 11.2.15.” Failure of the decision to include said statement shall automatically cause a waiver of any such charge for transcript to a party who appeals the decision.
11.2.15 Procedure for Appeal to the Panel.
.1 An appeal from a decision of a hearing officer shall be by written notice of appeal that shall be in any form that signifies an intent to appeal and shall be filed with the panel in person, by mail, by facsimile machine, or by division-approved electronic means or at a public employment office or the central office of the division or the office where the hearing officer is located. When an appeal has been received, the appeal file and record shall be transmitted to the panel. The panel shall notify the interested parties named in the caption of the hearing officer’s decision that an appeal has been filed and shall provide a copy of the written appeal to the other-named parties.
.2 The appeal shall be filed within the time limits and in the manner provided by 8-74-106 (1), C.R.S., and shall be accompanied by either the payment of the approximate cost of the transcript or a written statement of indigency on a completed form or in an electronic format prescribed by the panel requesting that such cost be waived.
.3 If the appeal is not accompanied by either the payment of the approximate cost of the transcript or a written waiver request on a completed form or in an electronic format prescribed by the panel, the appeal shall be dismissed, and notice of the dismissal shall be provided to the appealing party by the panel. However, a party whose appeal is dismissed pursuant to this subsection may reinstate the appeal by filing said payment or waiver request with the panel within fifteen calendar days after the date the notice of dismissal was provided to the party by the panel.
.4 A request for waiver of the transcript cost shall be granted if payment of the transcript cost would cause the appealing party undue financial hardship. In determining whether such payment would cause undue financial hardship, any relevant factors may be considered, including but not limited to the party's income and available money and existing expenses; the approximate cost of the transcript; and whether payment of this cost would deprive the party or his or her family of basic necessities.
.5 The panel shall issue a written decision on a waiver request, based upon the information contained in the statement of indigency or other relevant information contained in the record, within fifteen calendar days after the completed prescribed request has been received by the panel. If the appeal or the waiver request was not timely filed, this fifteen-day period shall not commence until an order accepting the untimely filing has been provided to the parties. Except as provided below, failure to issue such decision within this time limit shall be deemed a granting of the request.
.6 In ruling on a waiver request, the panel shall have the discretion to request or accept additional reliable evidence by such means as shall be deemed appropriate for resolution of the issue. If the panel requests additional information, the time period for issuing a decision on the waiver request shall be tolled until the information is received by the panel or the time limit imposed for providing the information has expired, whichever occurs sooner.
.7 If a request for waiver of the transcript costs is denied, the requesting party shall have twenty calendar days from the date the denial decision was provided to the party by the panel to either pay the approximate cost of the transcript or file a petition for review of the denial with the Court of Appeals, pursuant to 8-74-107, C.R.S. If a petition for review is filed, the requesting party shall have fifteen calendar days after the final action in the court proceedings in which to pay the approximate cost of the transcript.
.8 The cost of the preparation of the transcript of a hearing that occurs as a result of a remand order by the panel may be assigned to be borne by the division, if expressly so assigned by panel order, but otherwise shall be borne by the appealing party as provided in these regulations.
.9 If the payment of the approximate cost of the transcript by the appealing party exceeds the actual cost of the transcript, the excess payment shall be refunded without interest to the payor. If the actual cost of the transcript exceeds the payment received, the appealing party shall be assessed a charge for such excess cost that must be paid within fifteen days after the date notice of such charge was provided to the party by the panel. If this charge for excess cost is not timely paid, the appeal shall be dismissed, although it may be reinstated as provided in regulation 11.2.15.3, and the division shall retain all monies previously submitted by the appealing party.
.10 If a party withdraws his or her appeal after the panel has received payment or payments for the transcript, the panel may retain such payments in whole or in part according to the panel's assessment of its own costs in administrative time and expense in preparation of the transcript.
.11 Any act required by this regulation 11.2.15, except regulation 11.2.15.5, may be permitted outside the time periods set forth herein for good cause shown.
.12 Briefing Schedule. A “brief” for purposes of this rule, shall be any document apparently intended by an interested party to be a written argument. After the transcript of the hearing has been prepared, copies of the transcript shall be provided to the interested parties named in the caption of the hearing officer’s decision with a notice that the parties may submit a brief. Each named interested party may submit one brief within twelve calendar days after the date the notice was provided to the party by the panel. The panel shall provide a copy of the appealing party’s brief, or a notice that a brief was not received, to the other-named interested parties. If a brief has been filed by the appealing party, the other-named interested parties may submit a brief in response. Such brief must be filed with the panel within ten calendar days of the date the appealing party’s brief was provided to the other-named interested parties by the panel. Requests for extensions of time for the filing of briefs must be in writing as defined in regulation 1.3.11.2 and will be granted only on a specific showing of inability to submit a brief within the time limits set forth herein.
11.2.16 Decision of the Panel. Decisions shall identify those members of the panel who consider an appeal and copies thereof provided to all the parties. The decision of the majority shall control, provided, however, that a dissent stating reasons therfor may be filed by the minority.
11.2.17 Disqualification of Examiner. Challenges to the interest of an examiner shall be heard and decided by the panel.
11.2.18 Evidence From Another State. The division may, after notice to the parties, request an agency that administers the employment security law for another state to take evidence in that state for use by the division. Such agency, after notice to the parties, may follow the procedure prescribed by the law and regulations of that state for conducting hearings.
11.2.19 Subpoenas. The division may issue subpoenas to compel attendance of witnesses and production of records for a hearing before a hearing officer. A subpoena shall be served by delivering a copy of the subpoena to the person named therein no later than forty-eight hours before the time for appearance set forth in said subpoena. A subpoena may be served by an interested party, and proof of service shall be made by affidavit setting forth the date, place, and manner of service.
.1 A party that submits a request for a subpoena shall show:
.1 The name of the witness and the address where the witness can be served the subpoena;
.2 That the testimony of the witness is material; and
.3 That the testimony of the witness is not repetitive.
.2 If the requesting party wishes the witness to produce books, records, documents, or other physical evidence, the party shall also show:
.1 The name or a detailed description of the specific books, records, documents, or other physical evidence the witness should bring to the hearing;
.2 That such evidence is material;
.3 That such evidence is not repetitive; and
.4 That such evidence does not cause an undue burden on the party to whom it is directed.
.3 If the subpoena or subpoena duces tecum is denied, the aggrieved party may object at the hearing. The hearing officer will consider all objections and responses and supporting evidence, if any, and will grant or deny the request for issuance of the subpoena. If denied, the hearing will proceed on the merits of the issue in dispute. If granted, the hearing shall be adjourned pursuant to regulation 11.2.11.
11.2.20 Appearance of Parties. In a proceeding before a hearing officer or the panel, an individual may appear for himself or herself; a partnership may be represented by any partner or a duly authorized representative; and a corporation or association may be represented by an officer or duly authorized representative.
11.2.21 Designation of Representative. In addition to representatives under regulation 11.2.20, any party may designate another person as an authorized representative in an appeal proceeding before the division or panel.
11.2.22 Preserving Records of Decisions. Decisions of hearing officers and the panel shall be kept in such format as may be determined by the division in the main administrative office of the division in Denver, Colorado for a period of two years after the last decision. Copies of such decisions may be obtained upon written request and the payment of a reasonable fee therfor.