Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: This rule implements the federally mandated
coverage of Indian tribes under the Missouri Employment Security Law, Chapter
288, RSMo.
(1) Definitions.
As used in this rule, except as otherwise required for the content, the
following terms shall have the meanings ascribed:
(A) Director-The administrative head of the
Division of Employment Security.
(B) Division-The Division of Employment
Security.
(C) Indian tribe-The
meaning given to such term in section 3306 of the Federal Unemployment Tax Act
(26
U.S.C. 3306) .
(D) Employer-Includes any Indian tribe for
which service in employment as defined in section
288.034, RSMo
is performed.
(E)
Employment-Includes service performed in the employ of an Indian tribe,
provided such service is excluded from employment as defined in the Federal
Unemployment Tax Act solely by reason of section 3306(c)(7) of the Federal
Unemployment Tax Act, and is not otherwise excluded from employment under
Chapter 288, RSMo. For purposes of this rule, the exclusions from employment in
subsection 9 of section
288.034, RSMo
shall be applicable to services performed in the employ of an Indian
tribe.
(2) Benefits.
Benefits based on service in employment of an Indian tribe shall be payable in
the same amount, on the same terms and subject to the same conditions as
benefits payable on the basis of other service subject to Chapter 288, RSMo.
The provisions of subsection 3 of section
288.040,
RSMo pertaining to services performed at an educational institution while in
the employ of an "educational service agency" shall apply to services performed
in an educational institution or educational service agency wholly owned and
operated by an Indian tribe or tribal unit.
(3) Contributions. Indian tribes or tribal
units (subdivisions, subsidiaries or business enterprises wholly owned by such
Indian tribes) subject to this chapter shall pay contributions under the same
terms and conditions as all other subject employers, unless they elect to pay
into the state unemployment fund amounts equal to the amount of benefits
attributable to service in the employ of the Indian tribe. An Indian tribe and
all tribal units of such Indian tribe shall be jointly and severally liable for
any and all contributions, payments in lieu of contributions, interest,
penalties, and surcharges owed by the Indian tribe and all tribal units of such
Indian tribe.
(4) Payments in Lieu
of Contributions. Indian tribes electing to make payments in lieu of
contributions must make such election in the same manner and under the same
conditions as provided in subsection 3 of section
288.090,
RSMo pertaining to state and local governments and nonprofit organizations
subject to Chapter 288, RSMo. Indian tribes will determine if reimbursement for
benefits paid will be elected by the tribe as a whole, by individual tribal
units, or by combinations of individual tribal units. Termination of an Indian
tribe's coverage pursuant to subsection (C) of this section shall terminate the
election of such Indian tribe and any tribal units of such Indian tribe to make
payments in lieu of contributions.
(A) Indian
tribes or tribal units will be billed for the full amount of benefits
attributable to service in the employ of the Indian tribe or tribal unit on the
same schedule as other employing units that have elected to make payments in
lieu of contributions.
(B) Any
Indian tribe or tribal unit that elects to become liable for payments in lieu
of contributions shall be required, prior to the effective date of its
election, to post with the division a surety bond issued by a corporate surety
authorized to do business in Missouri in an amount equivalent to the
contributions or payments in lieu of contributions for which the Indian tribe
or tribal unit was liable in the last calendar year in which it accrued
contributions or payments in lieu of contributions, or one hundred thousand
dollars ($100,000), whichever amount is the greater, to ensure prompt payment
of all contributions or payments in lieu of contributions, interest, penalties
and surcharges for which the Indian tribe or tribal unit may be, or becomes,
jointly and severally liable pursuant to this chapter.
(C) Failure of the Indian tribe or tribal
unit to maintain the required surety bond, including the posting of an
additional surety bond or a replacement surety bond within ninety (90) days of
being directed by the division, will cause services performed for such Indian
tribe to not be treated as "employment" for purposes of Chapter 288,
RSMo.
(D) The director may
determine that any Indian tribe that loses coverage under subsection (C) of
this section, may have services performed for such tribe again included as
"employment" for purposes of Chapter 288, RSMo if all contributions, payments
in lieu of contributions, penalties, interest, and surcharges have been paid.
Upon reinstatement of coverage under this subsection, an Indian tribe or any
tribal unit may elect, in accordance with the provisions of this section, to
make payments in lieu of contributions.
(E) If an Indian tribe fails to maintain the
required surety bond by posting an additional surety bond or a replacement
surety bond within ninety (90) days of being directed by the division, the
director will immediately notify the United States Internal Revenue Service and
the United States Department of Labor.
(F) Notices of surety bond deficiency to
Indian tribes or their tribal units shall include information that failure to
post an additional surety bond or a replacement surety bond within the
prescribed time frame will cause:
1. The
Indian tribe to be liable for taxes under the Federal Unemployment Tax
Act;
2. The Indian tribe to be
excepted from the definition of "employer," as provided in section (1) of this
rule, and services in the employ of the Indian tribe, as provided in section
(1) of this rule, to be excepted from "employment."
(5) Failure to Make Payments.
Failure of the Indian tribe or tribal unit to make any payments required in
Chapter 288, RSMo, including assessments of interest and penalty, within ninety
(90) days of receipt of the bill will cause services performed for such Indian
tribe to not be treated as "employment" for purposes of Chapter 288, RSMo.
(A) The director may determine that any
Indian tribe that loses coverage under this section, may have services
performed for such tribe again included as "employment" for purposes of Chapter
288, RSMo if all contributions, payments in lieu of contributions, penalties,
interest, and surcharges have been paid.
(B) If an Indian tribe fails to make required
payments (including assessments of interest and penalty) within ninety (90)
days of a final notice of delinquency, the director will immediately notify the
United States Internal Revenue Service and the United States Department of
Labor.
(C) Notices of payment and
reporting delinquency to Indian tribes or their tribal units shall include
information that failure to make full payment within the prescribed time frame
will cause:
1. The Indian tribe to be liable
for taxes under the Federal Unemployment Tax Act;
2. The Indian tribe to be excepted from the
definition of "employer," as provided in section (1) of this rule, and services
in the employ of the Indian tribe, as provided in section (1) of this rule, to
be excepted from "employment."
(6) Extended Benefits. Extended benefits paid
that are attributable to service in the employ of an Indian tribe and not
reimbursed by the federal government shall be financed in their entirety by
such Indian tribe.
*Original authority: 288.220, RSMo 1951, amended 1955,
1961, 1963, 1967, 1971, 1995.
