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ASK THE EDD LAWYER – FILING A TIMELY PETITION WITH THE CUIAB - HOW TO COUNT “30 DAYS”

By Robert S. Schriebman

2018

Introduction

An EDD Notice of Assessment (NA) always has two dates set forth in the upper right-hand corner. These dates are found on the document that states Notice of Assessment. The first date is the "Issued Date." The second date is the "Mailed Date." The issued date usually precedes the mail date by a couple days. Sometimes both dates are the same.

CUIC § 1222 governs when a petition must be filed in order to be considered timely. A petition must be filed within 30 days of service of the NA. An additional 30-day period may be granted by an Administrative Law Judge (ALJ), upon showing of good cause. If a petition is not filed within the initial 30- day period, or within the additional period of time granted by an ALJ, the assessment becomes final and must be paid voluntarily or be subject to enforced collection.

What is confusing is, when does the initial 30-day period expire? It's confusing. Does it expire 30 days from the issued date; does it expire 30 days after the mailed date; or does it expire at some different time?

A Few Examples May Be Helpful

Example #1: Able Corporation's place of business is in La Jolla, CA. It has received an NA issued on April 30, 2018 and mailed on May 2, 2018. Acme is a bit lax in reading its mail. It files a petition with the CUIAB on Monday, June 4, 2018. Is the petition considered timely?

Example #2: Sid Baker is a sole proprietor having his place of business in Las Vegas, NV. He does extensive business in California. Sid has received an NA issued on May 1, 2018 and mailed on May 7, 2018. He files his petition with CUIAB on Monday, June 18, 2018. Is the petition considered timely?

Example #3: Charlie Company is a single member LLC, having its principle place of business in San Francisco, CA. The LLC was audited by the EDD. An NA was issued on May 1, 2018 and also mailed on May 1, 2018. Charlie's president, Sam Jones, was vacating in Europe and did not return to his desk until Friday June 15, 2018. After several days of catching up, he saw the NA and filed Charlie Company's petition with the CUIAB via FAX on Wednesday, June 20, 2018. Is the petition considered timely?

Answer: All the petitions in the above examples are considered timely filed under the CUIC.

The 30-Day Rule - When Does It Begin and When Does It Expire?

The Basic Rules

NAs are issued by the EDD usually out of Sacramento, CA. The rules dictating how the EDD must send NAs are set forth in CUIC § 1206. Some NAs are considered legally issued if they are sent by ordinary mail, while some NAs are required to be sent as certified mail. These days, however, the EDD sends all NAs by certified mail. CUIC § 1222 tells us that a petition must be filed within "30 days of service." Neither of these two code sections give us any information at all about how long the taxpayer has to file a timely petition - when is a petition deemed timely filed?

The answer is not found in the California Unemployment Insurance Code! Rather it is found in the Code of Civil Procedure, and specifically sections 1013 and 1013(a). According to these code sections the time for filing a petition is extended five days if the petitioner is within California, 10 days if the petitioner is outside of California, but within the country, and 20 days if outside the country. With these rules in mind, let's take a look at the above examples.

Example #1: In example #1, the NA was mailed on May 2, 2018 and a petition was filed on June 4, 2018. The 30-day period starts 5 days after the mail date or May 7, 2018. Since the petition was filed on June 4, 2018, it is filed within the 30-day rule for a business located in California.

Example#2: Sid Baker's business is outside California but within the country. Sid's timeframe comes within the additional 10-day rule set forth in sections 1206 (CUIC) and 1013 (CCP). Sid has 10 days plus 30 days to file a timely petition. The time limit fell on the weekend preceding June 18, 2018, so Sid has the following Monday to timely file the petition.

Example #3: A petitioner outside of the country has additional 20 days to file a timely petition. The 20th day expired on June 20, 2018 but the petition was filed via FAX and deemed timely received with proof of FAX confirmation.

Conclusion

In law, things are rarely simple and time limits can be vexing, confusing and dangerous. Never wait to the last minute to file anything with the government. Clerks have a habit of bouncing documents and making you re-file them. Always allow yourself plenty of time. Take out a calendar and count the days you have to file. Make sure you always have enough time to do it right the second time.

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Robert Schriebman has a successful practice in the Rolling Hills Estates area of Los Angeles County serving clients throughout California and the United States. He has successfully dedicated more than 40 years to helping individual taxpayers, business owners, CPAs, Enrolled Agents, and tax attorneys navigate the complicated tax systems of the federal and state governments.

Robert Schriebman has written the only 2 books ever published dealing with how California Employment Development Department (EDD) operates. See "California Tax Collection Practice and Procedures" and "California Taxation Practice and Procedure," both published by Commerce Clearing House.

Robert Schriebman has written over 20 books including the major manual used nationally by practitioners and the IRS, "IRS Tax Collection Procedures - A Manual for Practitioners" published by Commerce Clearing House.

Robert Schriebman has written over 20 books including the major manual used nationally by practitioners and the IRS, "IRS Tax Collection Procedures - A Manual for Practitioners" published by Commerce Clearing House in addition to the only 2 books ever published dealing with how California Employment Development Department (EDD) operates. See "California Tax Collection Practice and Procedures" and "California Taxation Practice and Procedure," both published by Commerce Clearing House.

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