N.J. Admin. Code § 12:16-18.3
Current through Register Vol. 56, No. 11, June 3, 2024
Section 12:16-18.3 - Transfer of predecessor's experience in part(a) Where both a predecessor employer and a successor in interest are, at the time of the acquisition by the successor in interest of a portion of the business of the predecessor employer, under common ownership, management or control, then the employment experience attributable to the portion of the business so acquired shall be transferred to and combined with the employment experience of the successor in interest.(b) The transfer of employment experience under (a) above is mandatory and not subject to appeal or protest.(c) A predecessor employer and successor in interest, except those addressed under (a) above, may jointly make application, on Form UC-47 (Joint Application for Transfer of Employment Experience), for transfer of that portion of the employment experience relating to that part of the organization, trade or business, or assets acquired by the successor in interest. Under the circumstances set forth in this subsection, the employment experience will be transferred if the following conditions are met: 1. Either the predecessor or successor in interest shall report the transfer and acquisition within 120 days from the date of acquisition.2. Both the predecessor and the successor in interest must complete and file form UC-47 within 120 days from the date of acquisition.3. The employment experience of the predecessor employer with respect to the portion of the organization, trade or business, or assets to be transferred may be considered indicative of the future employment experience of the successor in interest. The basis for this determination shall be the examination of the files and records in the Department's possession, unless the successor provides evidence to the contrary, which would be subject to confirmation by the Controller or his or her designee.(d) The predecessor and successor in interest may choose to have the employment experience transferred either on an actual or percentage basis. 1. Under the first option, the actual portion of the organization, trade or business, or assets which have been transferred is both distinguishable and identifiable and can be supported through the furnishing by the predecessor and successor in interest of all of the information covering contributions, annual payrolls, benefit charges and other data necessary to make the transfer.2. Under the second option, the portion of employment experience to be transferred, which is both distinguishable and identifiable from the predecessor to the successor in interest, is determined by taking a percentage of the number of employees transferred from the predecessor to the successor in interest as of the date of acquisition.3. Only one of the options may be selected to transfer contributions, benefit charges, three and five year taxable wage average and final experience rate from the predecessor to the successor in interest.(e) As used in this section, the term "distinguishable" means the portion of the organization, trade or business, or assets acquired by the successor in interest must be recognizable as distinct and different from the organization, trade or business, or assets remaining with the predecessor. The acquired portion must be able to operate as an employing unit apart and distinct from the predecessor, such as an entire operating division or a severed sales or production function.(f) As used in this section, the term "identifiable" means the part of the organization, trade or business, or assets acquired by the successor in interest must have definitive characteristics that separate it from the predecessor and it must be recognizable by those characteristics as unique and different from the predecessor.(g) Upon the transfer in part of the organization, trade, assets or business to a successor in interest, the employment experience of the predecessor employer shall not be transferred if the successor in interest is not an employer at the time of the acquisition and the Controller or his or her designee finds that the successor in interest acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions.N.J. Admin. Code § 12:16-18.3
Repeal and New Rule, R.1995 d.138, effective 3/6/1995.
See: 27 N.J.R. 61(a), 27 N.J.R. 919(a).
Formerly "Rate following acquisition".
Amended by R.2004 d.381, effective 10/4/2004.
See: 36 N.J.R. 2581(a), 36 N.J.R. 4473(a).
In (a), rewrote 1 and 2; added (c) through (e).
Amended by R.2006 d.425, effective 12/4/2006.
See: 38 N.J.R. 3229(a), 38 N.J.R. 5162(a).
Added new (a) and (b); recodified former (a) through (d) as (c) through (f); in the introductory paragraph of (c), inserted ", except those addressed under (a) above," and substituted "Under the circumstances set forth in this subsection, the" for "The"; deleted former (e); and added (g).