ASK THE CALIFORNIA EMPLOYMENT TAX AND PAYROLL TAX ATTORNEY – THE DOs AND DON’Ts OF CUIAB JUDGE HEARINGS
By Robert S. Schriebman
You have filed a timely petition with the CUIAB. You have also received a notice assigning your matter to a specific hearing location, one of many throughout California.
Now you have received a yellow hearing notice stating the place, time and date of your hearing as well as the name of the ALJ assigned to hear your matter. There are several types of hearings. The most common are the following:
- A hearing to determine your eligibility for benefits such as unemployment insurance. These are usually issued when the employer contests your initial application. This is known as an obstructed claim hearing
- A hearing to determine the readiness of your matter. In this hearing the judge will want to know how long the hearing will be, how many witnesses you intend to call, and whether there are any issues relating to documentation. This is not a hearing on the merits.
- A hearing on the merits of your matter. This type of hearing is akin to a formal trial where documents and testimony are offered and witnesses, including you, may be cross-examined by the EDD or the judge.
- A hearing on procedural matters such as the timeliness of a petition, or the legal validity of Notice of Assessment.
The purpose of this article is to give you a broad overview of the nature of EDD hearing and how to conduct yourself during the hearing process. I am going to divide this article into dos and don’ts, but first some common sense – general advice.
Common Sense – General Advice
When you receive the yellow hearing notice you will also receive a small pamphlet DE6142 “Office of Appeals Hearing Information” in both English and Spanish. Read it! It has important information about the conduct of the hearing, bringing witness, the use of electronically stored evidence, and what to do if you miss the hearing date.
The most important piece of advice I can give you is this: Preparation, Preparation and Preparation! You can never be too prepared.
Some hearings such as procedural matters and preliminary matters may be conducted by telephone. When the yellow hearing notice instructs you to appear in person, you can call the Clerk’s Office, at the number set forth at the bottom of the first page, and request to talk to a judge about appearing by telephone. In a day or two, a judge will call you back to listen to your request.
If you are going to produce documents at your hearing, make three sets: one for you, one for the judge, and one for the EDD representative or EDD attorney.
Do your homework. Be prepared. I am always surprised at how many so-called professionals, such as attorneys and CPAs come to these hearings totally unprepared. Recently I reviewed a hearing transcript from a client who told me that his former attorney resolved his EDD matter at a judge hearing, and that all issues relating to specific years under audit had been resolved in his favor – that was my client’s strong impression. In listening to the CD of the hearing, I discovered that the attorney was totally unprepared to discuss the merits of the case. The attorney simply conceded the matter in favor of the EDD’s assessment, and the judge dismissed the matter. My new client sadly discovered that he owed the EDD big bucks. The time for appeal had expired. My client was poorly represented!
Do listen very carefully to the statements made by the judge and to the judge’s questions asked of you. Answer truthfully and keep your answers short. I usually advise my clients to answer as follows:
- I don’t know
- I don’t remember
Do hire the services of a specialist in EDD matters and CUIAB practice and procedure. This advice is especially important when you have technical issues or large risks at stake.
Don’t go it alone. Losing a CUIAB hearing may carry with it all kinds of risks and exposures if you lose; not to mention IRS access to your records where the IRS can enter the picture and do a “me too” assessment based upon EDD audit findings and conclusions.
Don’t lie to the judge. These judges are very wise and experienced people. They know a lie when they hear it. Judges are only human and lying to them could severely prejudice the outcome of your matter.
Don’t point the finger of blame at others. If you are at fault in improperly classifying your workers, or providing doctored documentation don’t blame your accountant or attorney. The “blame game” is common and the judges know it.
Don’t say bad things about your assigned auditor. Judges don’t want to hear it. Don’t accuse your auditor of being a bully or signaling you out for special treatment. Judges believe that EDD auditors usually do good work and that they have heavy caseloads and little time.
If You Lose Your Hearing
If you are not happy with the results of your hearing, the CUIAB will send you a decision along with literature on the CUIAB Appeals Process as well as a form you can use to file your appeal. The CUIAB has an Appeals Division. The cost of an appeal is quite modest. If you petition for an appeal, you will receive a copy of your file, and a CD of your hearing. You may also receive a written transcript. There is a time limit for filing an application for an appeal.
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. 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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