New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 3 - EMPLOYMENT SECURITY
Part 400 - TAX ADMINISTRATION
Section 11.3.400.417 - PURCHASE OR SALE, EXPERIENCE HISTORY TRANSFERS
Universal Citation: 11 NM Admin Code 11.3.400.417
Current through Register Vol. 35, No. 18, September 24, 2024
A. TOTAL EXPERIENCE HISTORY TRANSFERS:
(1) ACQUISITION OF ALL EMPLOYING ENTERPRISES:
A total experience history transfer is available to a successor enterprise only
in the situation where the successor has acquired all of the predecessor's
business enterprise and, where the predecessor, immediately after the business
transfer as defined in
11.3.400.416
NMAC, ceases operating the same enterprise except for liquidation purposes.
(a) In the sale of a business enterprise, the
phrase "all assets" includes the transfer of a favorable experience
history.
(b) In the sale of a
business enterprise, the phrase assumption of "all liabilities" includes an
unfavorable experience history and any unpaid contributions, interest and
penalties.
(2)
NOTIFICATION BY SUCCESSOR: A successor who has acquired all of the
predecessor's employing enterprises shall notify the department of such
acquisition by completing an electronic notification for a total experience
history transfer through the employer's online account 60 days on or before the
due date of the successor's first quarterly wage and contribution report after
the effective date of the acquisition of the employing enterprise or
enterprises. Information with respect to the predecessor and successor
employing enterprises necessary to a department determination to approve or
disapprove a total history transfer shall be given as prescribed by the
electronic notification through the employer's online account or as requested
by the department. Upon completion of the notification, the department shall
furnish a statement of account to the predecessor and the successor, if the
predecessor is delinquent in either submitting wage and contribution reports or
the payment of contributions.
(a) All
contributions, interest and penalties due from the predecessor employer must be
paid. If any amount remains due to the department at the time of the transfer,
the successor employer assumes the liability for the outstanding balance as
part of the history transfer.
(b)
If the successor employer fails to complete an electronic notification to the
department before the due date of the successor's first quarterly wage and
contribution report after the effective date of the acquisition, when the
department receives actual notice of the transfer, the department shall effect
the transfer of the experience history and applicable rate of contribution
retroactively to the date of the acquisition and the successor shall pay a
penalty of $50.
(c) An electronic
notification for a history transfer must be completed on line during the
calendar year of the transaction transferring the employing enterprises. Upon a
showing of good cause, the department may extend the due date for the
completion of the endorsed notification and quarterly wage and contribution
reports for an additional 30 days provided that the request for an extension of
time is filed in writing on or before the regular due date.
(3) LIQUIDATION WAGES: Any wages
reported by the predecessor and contributions paid by the predecessor for the
cessation of the predecessor's business after the acquisition date of the
business by the successor shall be credited to the successor's account for
experience rating purposes.
(4)
WRITTEN DETERMINATION TO SUCCESSOR AND PREDECESSOR: The department shall issue
a written determination to the successor and predecessor approving or
disapproving the total history transfer. All such determinations shall be
subject to the provisions of
11.3.500.8
NMAC governing appeals of contribution or tax determinations. Failure to timely
appeal a denial of the transfer of a favorable experience transfer without good
cause as defined in
11.3.400.7
NMAC will deprive the successor business of the opportunity for the transfer of
the favorable experience history transfer.
(5) PREDECESSOR RESUMES OR CONTINUES IN
BUSINESS: If the predecessor owner operates a new or different business
enterprise upon or after the business transfer, the predecessor shall retain
its account number and a rate in accordance with the provisions of Section
51-1-11
NMSA 1978.
B. PARTIAL EXPERIENCE HISTORY TRANSFERS:
(1)
NOTIFICATION BY SUCCESSOR AND SUBMISSION OF JOINT NOTIFICATION FORM: The
applicable experience history may be transferred to the successor in the case
of a partial transfer of an employing enterprise if the successor has acquired
one or more of the several employing enterprises of a predecessor but not all
of the employing enterprises of the predecessor and each employing enterprise
so acquired was operated by the predecessor as a separate store, factory, shop
or other separate employing enterprise and the predecessor, throughout the
entire period of the contribution with liability applicable to each enterprise
transferred, has maintained and preserved payroll records that, together with
records of contribution liability and benefit chargeability, can be separated
by the parties from the enterprises retained by the predecessor to the
satisfaction of the secretary or the secretary's designee.
(2) The successor shall notify the department
of such acquisition by completing an electronic notification for a partial
experience history transfer the employer's online account 60 days on or before
the due date of the successor's first quarterly wage and contribution report
after the effective date of the acquisition of the employing enterprise. The
notification shall be endorsed by the predecessor. The notification shall
provide a schedule of the name and social security number of and the wages paid
to and the contributions paid for all employees for the three and one-half year
period preceding the computation date through the date of transfer or such
lesser period as the enterprises transferred may have been in operation. The
notification shall be supported by the predecessor's permanent employment
records, which shall be available for audit by the department. The notification
shall be reviewed by the department and, upon approval the percentage of the
predecessor's experience history attributable to the enterprises transferred
shall be transferred to the successor. The percentage shall be obtained by
dividing the taxable payrolls of the transferred enterprises for such three and
one-half year period preceding the date of computation or such lesser period as
the enterprises transferred may have been in operation, by the predecessor's
entire payroll. Upon a showing of good cause as defined in
11.3.400.7
NMAC, the department may extend the due date for the filing of the endorsed
notification and quarterly wage and contribution reports for an additional 30
days provided that the request for an extension of time is filed in writing on
or before the regular due date. Information with respect to the predecessor and
successor employing enterprises necessary to a department determination to
approve or disapprove a partial history transfer shall be given as prescribed
by the notification or as requested by the department.
(3) WRITTEN DETERMINATION TO SUCCESSOR: The
department shall issue a written determination to the successor approving or
disapproving the partial history transfer. All determinations disapproving the
partial history transfer shall be subject to the provisions of
11.3.500.8
NMAC governing appeals of contribution or tax determinations. Failure to timely
appeal a denial of the partial history transfer without good cause as defined
in
11.3.400.7
NMAC will deprive the successor business of the opportunity for the transfer of
the partial history experience.
C. COMMON OWNERSHIP EXPERIENCE HISTORY TRANSFER:
(1) If the transaction involves only
a merger, consolidation or other form of reorganization without a substantial
change in the ownership and controlling interest of the business entity, as
determined by the secretary, and both the predecessor and the successor are
under common ownership, a party to a merger, consolidation or other form of
reorganization shall not be relieved of liability for any contributions,
interest or penalties due and owing from the employing enterprise at the time
of the merger, consolidation or other form of reorganization.
(2) The experience history attributable to
the transferred business shall also be transferred to and combined with the
experience history attributable to the successor employer. The rates of both
employers shall be recalculated and made effective immediately upon the date of
the transfer.
D. DETERMINATION OF CONTRIBUTION RATES AFTER TOTAL OR PARTIAL EXPERIENCE HISTORY TRANSFER:
(1) If, on the effective date of
the transfer, the successor employer has a contribution rating for the calendar
year there will be no change in rate determined for the successor's account as
a result of the transfer.
(2) If,
on the effective date of the transfer, the successor employer does not have a
contribution rating for the calendar year, the rate shall be computed from the
successor's prior history combined with the acquired total or partial history
of the predecessor.
(3) If, on the
effective date of the transfer, the successor employer has not been a
contributing employer throughout the preceding 24 months, the contribution rate
for the successor employer shall be:
(a) the
rate of the predecessor or combined predecessors in the case of a total
experience transfer; and
(b) a rate
based on experience of the separate schedule of employment and related benefits
charged will apply in the case of a partial experience transfer.
(4) If, on the effective date of
the transfer, the successor employer has not been a contributing employer
throughout the preceding 24 months, and the successor employer acquires all or
part of a employing enterprise that has a rate of contribution less than the
average of the contribution rates for all contributing employers in the
employer's industry, shall be entitled to the transfer of the contribution rate
of the predecess or employing enterprise.
(5) A new rate based on experience of the
remaining schedule of employment and related benefits charged will apply to the
predecessor account from the effective date of the transfer in the case of a
partial experience transfer.
E. CHARGING OF BENEFITS AFTER TRANSFER: Benefits paid subsequent to the effective date of a partial, total or common ownership experience history transfer shall be charged to the successor's account if the base period wages were transferred to the successor.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.