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Lectro Lift Inc. v. Morgan

August 27, 1973

LECTRO LIFT, INC., PETITIONER,
v.
MORGAN, RESPONDENT



Judicial Review of a decision of the Employment Division.

Burton H. Bennett, Portland, argued the cause for petitioner. With him on the briefs were Franklin, Bennett, DesBrisay & Jolles and Larry N. Sokol, Portland.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and Clarence R. Kruger, Assistant Attorney General, Salem.

Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.

Langtry

This is an administrative review appeal from a decision of the state Employment Division affirming a determination of tax liability and estimated tax assessment made by the division for the period January 1, 1969 through June 30, 1971. ORS 657.684; 183.310 to 183.500.

Petitioner Lectro Lift, Inc. is an Oregon corporation that assembles fork trucks and related equipment. It is located at 2949 N.W. St. Helens Road, Portland. Oregon Handling Equipment, Inc. is also an Oregon corporation that is located at the same address. It sells and distributes casters, conveyors, fork trucks, hydraulic lifts and valves, and manufactures related speciality equipment. Both corporations are owned by Lyle H. Vandercook who is the president of each corporation. Oregon Handling has eight to eleven employes and has made regular contributions for these employes under the provisions of the Employment Division Law. ORS ch 657. Lectro Lift has no payroll and makes no contributions under the Act. Evidence showed that during the period in question the employes of Oregon

Handling collectively had spent a substantial percentage of their working hours performing services for Lectro Lift. The employes were paid by Oregon Handling for this time and that corporation's records reflected a transfer of funds from Lectro Lift to Oregon Handling for "wage expense." Based solely on the above data the division determined that Lectro Lift was an employer and assessed tax liability of $2,254.88 by recomputing each employe's payroll records to reflect the percentage of time the employes as a whole had spent on Lectro Lift work. The division credited Oregon Handling's account for the amount charged to Lectro Lift. Because employer's contributions are based in part on the employer's experience rating (ORS 657.430) and because the employer is liable for contributions based on amounts up to a certain maximum paid to each employe each year (for the period in question $3,600) (ORS 657.095), the effect of the division's actions is to make the two corporations' combined tax liability higher than the liability of Oregon Handling under the accounting system they had been using.

The thrust of Lectro Lift's argument is that the division has failed to show that any specific individual has performed services for Lectro Lift. The record reveals that the division's employe who investigated and made the determination of liability was told by the accountant for the two corporations that there were no records that broke down the amount of time spent by each employe of Oregon Handling on the work of Lectro Lift.

ORS 657.040 provides:

"Services performed by an individual for remuneration are deemed to be employment subject to

this chapter unless and until it is shown to the satisfaction of the ...


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