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ASK THE CALIFORNIA EMPLOYMENT TAX AND PAYROLL TAX ATTORNEY – CUIAB ALLOWS EXTRA TIME FOR FILING EDD PETITIONS
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ASK THE CALIFORNIA EMPLOYMENT TAX AND PAYROLL TAX ATTORNEY – CUIAB ALLOWS EXTRA TIME FOR FILING EDD PETITIONS

By Robert S. Schriebman 2020

Introduction

Never wait to the last minute or the eleventh hour to file any paperwork or petitions concerning any audit appeal. Different taxing agencies have their own unique rules when it comes to filing protests, petitions, or claims for refund. Some agencies require the actual receipt of the filing document. Other agencies rely upon the so-called "mailbox rule." The mailbox rule, stated simply, means that a document will be considered timely filed if deposited in the US Mail and the sender can prove when the deposit was made.

There are two important dates on the upper right-hand corner of the Notice of Assessment: the Issued Date and the Mail Date. A period of about 7 days separates the two dates. A timely petition is governed by these two dates. You have 30 days to file a timely petition.

You have the burden of proving timeliness. The "mailbox rule" applies when you file a CUIAB petition. If you are going to use the mail, go to the post office and send it by certified mail and make sure the clerk round-stamps your receipt. You must be able to prove that you deposited the petition timely. The petition may get lost in the mail or arrive at the CUIAB late, but as long as you can prove a timely deposit you are OK. The mailbox rule also applies to some private carriers like Fed Ex or UPS (something that shows tracking).

This article will discuss the basic rules of timeliness for filing an EDD petition with the CUIAB and additional grace periods allowed by the Board especially during the COVID-19 pandemic.

The Important 30-Day Rule and How to Calculate It

A petition must be filed within 30 days of service of the Notice of Assessment; an additional 30-day period may be granted by a judge upon the showing of good cause. The 30 days will be measured from the Mail Date on the NA. Judges have the discretion of granting a favorable decision even after these two 30-day periods have expired. (CUIC § 1222)

  • CUIAB Precedent Decision P-T-364 states the basic two 30-day time periods discussed above. The decision also states that if the petition is filed after the first standard 30-day period, it may be considered timely if it was filed within the second 30-day extension if there was good cause for the delay.
  • If the petition is filed after the expiration of both 30-day periods, it cannot be considered on the merits unless estoppel can be invoked against the EDD.
  • An assessment is served on the employer-petitioner’s -petitioner when it is mailed by certified mail to the correct address of the employer as it appears on the EDD’s records (CUIC § 1206).

If a petition is filed beyond 60 days from the date of mailing, the only way it will be considered timely if it can be shown that the EDD made an error in the assessment process or other actions of the EDD creating an estoppel.

In Precedent Decision P-B-115 the appeals board set forth the elements of equitable estoppel as follows:

  1. The Employment Development Department, or its authorized representative, was apprised of all the facts.
  2. The department intended the claimant to rely on its conduct or statement or led the claimant to believe he or she could rely on it.
  3. The claimant was ignorant of the facts.
  4. The claimant relied on the department, or its authorized representative’s conduct or statement, to his or her injury.

CUIAB Allows an Additional 5 Day Grace Period

Perhaps it is due to business closures and parttime work schedules caused by COVID-19, but the CUIAB is allowing a grace period for filed petitions. In a recent discussion with the Clerk of the CUIAB, I learned that in most cases an additional 5-day grace period is now allowed when it comes to the receipt of the petition by the CUIAB. This rule has been applied to the 30-day basic timeframe set forth in CUIC §1222. However, do not count on the same 5-day grace period if the petition is filed more than 60 days. Any grace period beyond the 30-day statutory period will be strictly within the discretion of the CUIAB and is not guaranteed.

Conclusion

Filing periods are set by statute and are usually strictly adhered to. It is a mistake to assume that you will be given any grace period at all. Always have written proof of mailing. Remember the mailbox rule.

***

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 50 years to helping individual taxpayers, business owners, CPAs, Enrolled Agents, and tax attorneys navigate the complicated tax systems of the federal and state governments. Mr. Schriebman is in private practice. He is not affiliated in any way with the EDD and he is not employed by the EDD or any other agency of the State of California.

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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