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Chelius v. Employment Department

Court of Appeals of Oregon

August 14, 2013

GEORGE L. CHELIUS, Co-Personal Representative of the Estate of Alan James, Petitioner,

Argued and submitted on January 11, 2013.

Office of Administrative Hearings T71232

Matthew Whitman argued the cause and filed the briefs for petitioner.

Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.


Petitioner, as one of the personal representatives of the estate of Alan James (the estate), challenges a tax assessment levied by the Tax Section of the Oregon Employment Department. The department found that the estate was liable for unemployment insurance taxes based on payments to Gabaldon, who was providing bookkeeping and related services. The estate (valued at over $110 million) challenged the assessment ($379.16), arguing that Gabaldon was an independent contractor and that, therefore, payments for her services did not subject the estate to liability for unemployment insurance taxes. An administrative law judge (ALJ) for the department issued a final order concluding that Gabaldon was the estate's employee and affirming the department's tax assessment. The estate now appeals that order, and we affirm.

We state the facts consistently with the ALJ's unchallenged factual findings. McDowell v. Employment Dept., 348 Or 605, 608, 236 P.3d 722 (2010); Compressed Pattern, LLC v. Employment Dept., 253 Or.App. 254, 255, 293 P.3d 1053 (2012). Gabaldon worked as a full-time employee for Alan James for some time until his death in 2005. She was then hired by the estate to help attend to various matters related to the administration of his estate and to the sixteen testamentary trusts that James had established. She helped the estate's representatives prepare for the probate case; helped gather information related to an IRS tax case; acted as the liaison to the beneficiaries and the trustees; and performed other day-to-day bookkeeping tasks. The estate's attorney trained Gabaldon on how to gather the information needed for filing probate inventories and accountings. By 2009, Gabaldon had grown familiar with the requirements of her new job, had obtained a paralegal certificate, and required less supervision than when she started.

By the end of 2009, much of the work associated with the estate had concluded, and the estate closed its offices. Consequently, Gabaldon's workload diminished substantially, and she was allowed to work part time from home. The estate provided her with some of its office furniture, a computer, an external back-up computer hard drive and battery for storing or backing up estate or trust files, and a printer, all of which she set up in her dining room. The printer, however, stopped working shortly thereafter, and Gabaldon purchased a replacement at her expense.

In December 2009, Gabaldon and the estate entered into an agreement captioned "INDEPENDENT CONTRACTOR AGREEMENT." The agreement provided that Gabaldon would continue to do work on behalf of the estate at the rate of $40 an hour, up to 15 hours per week. It also required her to submit detailed time sheets documenting her work and provided that the estate would reimburse Gabaldon for her out of pocket expenses. The estate could terminate the agreement at any time, provided it sent written notice to Gabaldon. According to the agreement's "Independent Contractor" clause, Gabaldon was to "provide all services under this agreement, as an independent contractor for all purposes" and that the estate's representative-trustees would not "have the right to direct or control the means or manner in which she provides these services * * *." The agreement also made Gabaldon responsible for all taxes and fees "payable on account of the services provided by her under this agreement."

The agreement specified Gabaldon's job responsibilities as follows:

"For the Estate: Process and pay estate bills; Process and make deposits of estate funds; Reconcile bank statements and manage estate accounts; Process year-end tax documents; Keep the personal representatives informed regarding estate assets and liabilities; Provide information to the accountants and attorneys for the personal representatives; Prepare schedules for annual and final court accountings; Communicate with depositories of estate funds; Maintain the decedent's and the estate records and files[.]
"For the Trusts: Provide liaison between the trustees and trust beneficiaries; Assemble, organize and verify data and information relating to discretionary distribution requests, and communicate with trust beneficiaries and vendors to the beneficiaries in that connection; Communicate with Wells Fargo re trust account balances and disbursements; Monitor and follow up on due dates for trustee action; Monitor and follow up on pending matters between the trustees and beneficiaries and between the trustees and Wells Fargo; As reasonably requested, monitor and supervise vendors of services or materials to the trustees; Review Wells Fargo statements of receipts and disbursements for accuracy; Provide the trustees with trust administration, historical and other information as requested; Provide information to the accountants and attorneys for the trustees; Maintain trust ...

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