Section 15: Failure of employer to pay required amounts when due; recovery of erroneous payments; assessments; enforcement; collection pursuant to treasury offset program
Section 15. (a) If any employer fails to pay when due any amount required of such employer under this chapter, such overdue amount shall carry interest at the rate of eight per cent per annum from the due date until paid. With respect to the calendar year beginning January first, nineteen hundred and eighty-three, if any employer fails to pay when due any amount required of such employer under this chapter, such overdue amount shall carry interest at the rate of twelve per cent per annum. With respect to the calendar years beginning after December thirty-first, nineteen hundred and eighty-three, if any employer fails to pay when due any amount required of such employer under this chapter, such overdue amount shall carry interest at the rate of twelve per cent per annum or such adjusted rate as is established under section thirty-two of chapter sixty-two C in effect for the calendar year, whichever is the greater. With respect to the calendar years beginning after December thirty-first, nineteen hundred and eighty-eight, if any employer fails to pay when due any amount required of such employer under this chapter, such overdue amount shall carry interest at the rate of twelve percent per annum or such adjusted rate as is established under section thirty-two of chapter sixty-two C in effect for the calendar year, whichever is the greater. The commissioner may assess upon such employer in lieu of such interest a penalty of five dollars a day for one or more days, but not exceeding the number of days during which such employer is in default.
Notwithstanding section 47, if an employer or an officer or agent of an employer knowingly fails or refuses to pay any contribution, payment in lieu of contribution or interest charge or attempts in any manner to evade or defeat any contribution or payment in lieu of contribution or who knowingly makes a false statement or misrepresents the employment status of an individual under his employ to avoid or reduce any contribution, he shall be punished by a fine equal to the total amount of contributions owed, including any interest, in addition to a penalty equal to the total amount that the individual fraudulently collected during the total period in which such individual was under his employ.
(b) The commissioner may collect such overdue amounts, together with such interest or penalty, in a civil action or by petition for entry of judgment in the name of the commonwealth commenced within six years from January thirty-first next succeeding the last day of the calendar year in which wages were paid or within six years from January thirty-first next succeeding the last day of the calendar year in which the employer filed the contribution reports required under this chapter, whichever is the greater.
Notwithstanding the provisions of this subsection, if the commissioner believes that the collection of contributions, interest or penalty will be jeopardized by delay, he may in his discretion commence a civil action to collect such amounts at any time prior to January thirty-first next succeeding the last day of the calendar year in which wages were paid, without regard to the date on which such contributions are due.
If an employer has failed to give notice to the commissioner of the fact, not otherwise determined, that he believes he is subject to the provisions of this chapter and to request a determination of his liability, or if an employer has failed to file the wage and contribution reports required of him under this chapter showing the amounts of such wages and the contribution due thereon, or has filed false reports as to the amounts of such wages with intent to defraud, then the provisions of this subsection shall not apply and the commissioner may bring a civil action at any time for all periods, without regard to the year in which wages were paid.
Actions brought under this subsection shall be given precedence over other civil cases except petitions for review arising under section forty-two.
(c) In any case based upon a return by an employer, in addition to any other remedy provided by law, the commissioner may file in the district court within the judicial district of which the employer hereinafter referred to lives or has or had a usual place of business a petition for entry of judgment against an employer in default in any payment of contributions, interest or penalties assessed in lieu thereof provided by this chapter. At least twenty days prior to filing such petition the commissioner shall send by registered or certified mail, return receipt requested, to such employer a written notice, addressed to him at his last known residence or place of business. Such notice shall state (1) the name and address of such employer, (2) the amount for which the commissioner alleges he is in default in the payment of contributions, interest, or penalties, as the case may be, and to what date, (3) the name and location of the district court in which such petition will be filed and the date on or before which said petition will be filed, (4) that the commissioner has complied with all the provisions of this chapter in relation to the computation and levy of said contributions, interest, or penalty, as the case may be, and (5) that judgment will be entered against such employer by said court for the total amount alleged in said notice, with interest, unless said employer within twenty days after the latest date specified under clause (3) brings an assignment of error in said proceeding, stating specifically sufficient reasons why such judgment should not be entered, and within five days of bringing such assignment of error serves a copy of said assignment of error upon the commissioner by registered or certified mail. A general denial of the allegations of the commissioner's position shall not constitute a sufficient assignment of error, and the employer shall not avail himself of any defense in matters of fact which he had adequate opportunity to present to the commissioner. The commissioner's petition, when filed in the district court, shall be accompanied by a copy of the notice mailed by the commissioner to the employer and the registered or certified mail return receipt received in reply thereto. The return receipt or undelivered copy of the commissioner's written notice as the case may be, shall be sufficient service upon such employer. If no sufficient assignment of error is brought by the employer within the time above specified, he shall be defaulted and judgment shall be entered against him for the amount alleged due in the petition, with interest from the date to which interest was computed in said petition and execution issued therefor as in other civil actions. If a sufficient assignment of error is seasonably brought by the employer and a copy thereof is properly served the case shall be ripe for hearing, and the employer shall place the case on the trial list within twenty-five days of the filing of said assignment of error and shall promptly give notice thereof by registered or certified mail to the commissioner. If such employer fails to comply with any of the obligations imposed upon him by the provisions of law relative to petitions for entry of judgment provided for under this subsection, he shall be defaulted and judgment for the commissioner shall be entered by the clerk under the general rules of court as to judgments on default. At the hearing on the assignment of error, the court shall inquire only whether the commissioner acted within his jurisdiction and whether his action was founded on evidence and free from any error of law affecting substantial rights. If the defense raised by the employer is not meritorious, the court may impose additional costs against the employer. The petition and the assignment of error may, upon motion, be amended by leave of the court.
(d) The employer may, prior to said return day, pay the amount specified in such notice and shall thereupon have the right to file, within ninety days of said payment, a claim against the department for all or part of such amount and to recover so much thereof as may have been erroneously assessed or paid, such claim to be brought and prosecuted in the district court within the judicial district of which is located the principal place of business of the employer, or if his principal place of business is not located in the commonwealth, in the municipal court of the city of Boston. If the employer prevails the administrative justice for the Boston municipal court department, or the presiding justice of the district court, as the case may be, shall certify to the commissioner the amount found to have been erroneously assessed or paid and the said amount shall be repaid from the clearing account. No interest or costs shall be taxed against the commonwealth.
(e) In lieu of the procedures provided by subsections (b), (c), and (d) for collecting unpaid and overdue contributions, payments in lieu of contributions, interest or penalties the commissioner may assess such contributions, payments in lieu of contributions, interest or penalties against the employer, certify the amount of such unpaid and overdue contributions, payments in lieu of contributions, interest or penalties, and give the employer written notice of the certified assessment by serving a copy thereof either personally or by registered mail directed to the employer's last known address in the commonwealth or, if he has none in the commonwealth, in any state.
(1) The assessment shall be based upon the reports required to be filed by the employer under the provisions of this chapter, except that the commissioner may determine the amount of unpaid and overdue contributions, payments in lieu of contributions, interest or penalties due from such employer on the basis of such information as he may be able to obtain when the employer has failed to file any such report or, if he has filed such report, it is incorrect or insufficient, or if the employer is not required to file such report from such information available to the commissioner.
(2) The notice shall be served or mailed to the employer at any time within the period provided for the commencement of a civil action by subsection (b).
(3) The assessment shall be final unless the employer files a petition for reassessment with the commissioner within ten days following the date of personal service or mailing of the notice. A petition for reassessment shall set forth specifically and in detail the reasons why the employer claims the assessment is erroneous.
(4) The employer shall be given a reasonable opportunity for a fair hearing on his petition for reassessment before the commissioner or his representative, unless such petition is either withdrawn by the employer or is allowed by the commissioner.
After such hearing, the commissioner or his representative shall promptly notify the employer of the decision upon the petition together with the reasons therefor. This decision shall be final unless the employer files an application for further review with the board of review within ten days following the date of mailing of the decision to the employer. An application by the employer for further review by the board shall set forth specifically and in detail the reasons why the employer claims the decision is erroneous.
(5) The board may allow or deny an application for further review. If the application is denied, the decision of the commissioner or his representative shall be deemed to be the decision of the board. If the application is allowed, the board may, on the basis of the evidence previously submitted in such case and any additional evidence which it may take or direct the commissioner to take, affirm, modify, reverse or set aside the decision of the commissioner or his representative. The board shall promptly notify the employer of its decision and the reasons therefor. This decision shall be final unless the employer obtains judicial review of such decision by filing, within twenty days of the date of personal service or mailing of such decision, a petition for review thereof in accordance with the applicable provisions of section twelve.
(6) If an assessment, or any administrative decision upon review thereof has become final and the contributions, payments in lieu of contributions, interest or penalties thereby assessed remain unpaid, the commissioner may file with the clerk of the municipal court department of the city of Boston or in the district court department in the judicial district where the employer has his principal place of business or any other judicial district in which the employer has real or personal property, or with all of them, a certificate or a copy thereof under the commissioner's official seal, stating: the name and address of the employer, the amount of contributions, payments in lieu of contributions, interest or penalties assessed and in default, and that the time in which administrative or judicial review is permitted pursuant to this section has expired without an appeal having been taken, and thereupon such clerk shall enter into the judgment records of the court the name of the employer mentioned in the certificate, the amount of such contributions, payments in lieu of contributions, interest or penalties assessed and in default, and the date such certificate is filed. Execution shall be issuable at the request of the commissioner, the commissioner's agent or attorney, in the same manner as a duly entered judgment of the court. No recording fee shall be paid by the commissioner for the filing of a certificate, no exemption shall be allowed from the levy of an execution and no indemnifying bond shall be required by the sheriff or other officer before making a levy.
(7) Any certificate or copy thereof which the commissioner has filed with the clerk of courts pursuant to paragraph (6) may include in the amount shown on such certificate or copy a penalty of fifty dollars which penalty shall be included in any judgment rendered pursuant to said paragraph (6).
(f) If an assessment, or any administrative decision upon review thereof, has become final and the contributions, payments in lieu of contributions, interest or penalties thereby assessed remain unpaid, the director may refer the unpaid and overdue amount to the Secretary of the United States Department of Treasury for collection pursuant of 26 U.S.C. section 6402(f), the treasury offset program; provided, that all procedures for notice and opportunity to present evidence as required by 31 CFR section 285.8 have been followed.