23-733. Transfer of employer experience rating accounts to successor employer; liability of successor

A. When any employing unit in any manner succeeds to or acquires the organization, trade or business, or substantially all of the assets thereof, excepting any assets retained by such employer incident to the liquidation of his obligations, whether or not such acquiring employing unit was an employer within the meaning of section 23-613, prior to such acquisition, and continues such organization, trade or business, the account of the predecessor employer shall be transferred as of the date of acquisition to the successor employer for the purpose of rate determination.

B. An employing unit which succeeds to or acquires a distinct and severable portion of an organization, trade or business may apply for transfer of the account of the portion by filing with the department not later than one hundred eighty days after the date of acquisition a written application for transfer, approved in writing by the predecessor, except that for good cause shown the department may extend the time for filing the application. The account of the acquired portion shall be transferred to the successor as of the date of acquisition only if the successor continues to operate the acquired portion and submits necessary information establishing the separate identity of the account within thirty days after the request for the necessary supporting payroll information is mailed to the successor by the department, except that for good cause shown the department may extend the time for submitting such supporting information. The predecessor and successor employers shall be promptly notified of the determination made upon the application which shall become final fifteen days after written notice thereof is served personally or by certified mail addressed to the last known address of each employing unit involved, unless within such time one of the parties files with the department a written request for reconsideration. When timely request for reconsideration is filed, a reconsidered determination shall be made. The reconsidered determination shall become final fifteen days after written notice thereof is served personally or by certified mail addressed to the last known address of each employing unit involved, unless within such time one of the employing units involved files with the department a written petition for hearing. When timely petition for hearing is filed, the parties shall be afforded an opportunity for hearing and thereafter furnished with a decision. The decision shall become final unless a petition for review is filed as provided in section 23-672.

C. If the successor employer was an employer subject to this chapter prior to the date of acquisition of an organization, trade or business, or substantially all of the assets thereof, his rate of contributions for the remainder of the calendar year in which the acquisition occurred shall be his rate as previously assigned for the calendar year in which the acquisition occurred. If the successor was not an employer prior to the date of acquisition, his rate for the remainder of the calendar year beginning on the date of acquisition shall be the rate applicable to the predecessor employer or employers for the calendar year in which the acquisition occurred, if there was only one predecessor or there were only predecessors with identical rates. If the predecessor rates were not identical, the successor's rate for the remainder of the calendar year beginning on the date of acquisition shall be recomputed on the basis of the combined accounts of the predecessors as of the computation date applicable to the calendar year in which the acquisition occurred. When the account for a distinct and severable portion has been transferred to a successor who was not an employer prior to the date of acquisition, the rate of the successor for the remainder of the calendar year beginning on the date of acquisition shall be computed as of the computation date applicable to such calendar year, on the basis of the experience attributable to the acquired portion. If the successor was an employer prior to the date of acquisition, his rate for the remainder of the calendar year beginning on the date of acquisition shall be the rate previously assigned to him for the calendar year in which the acquisition occurred. The rate of the predecessor for the remainder of the calendar year beginning on the date of acquisition shall be the rate previously assigned to him with respect to the calendar year in which the acquisition occurred.

D. Any individual or organization, including the types of organizations described in section 23-614, whether or not an employing unit, which in any manner acquires the organization, trade or business, or substantially all of the assets thereof, shall be liable, in an amount not to exceed the reasonable value, as determined by the department, of the organization, trade, business or assets acquired, for any contributions, interest and penalties due or accrued and unpaid by such predecessor employer, except that the department may waive the successor's liability for such unpaid amounts if a determination that the predecessor was subject to this chapter had not been made as provided in section 23-724 prior to the date of acquisition, and such liability on the part of the successor would be against equity and good conscience.

E. The amount of liability of a successor employer for any contribution, interest and penalties due or accrued and unpaid by his predecessor employer shall be a lien against the property or assets so acquired which shall be prior to all other liens except prior recorded realty mortgages, but the lien shall not be valid as against one who acquires from the successor any interest in the property or assets in good faith, for value, and without notice of the lien. On written request, the department shall furnish the successor with a written statement of the amount of contributions, interest and penalties due or accrued and unpaid by the predecessor employer as of the date of such acquisition, and the amount of the liability of the successor or the amount of the lien shall in no event exceed the liability disclosed in such statement. The remedy provided by this section shall be in addition to all other existing remedies against the predecessor employer or his successor, and the lien against the successor may be foreclosed as in other civil actions.