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S.B. 179 Enrolled

                 

UNEMPLOYMENT INSURANCE - NATIVE

                 
AMERICAN TRIBAL UNITS

                 
2001 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Ed P. Mayne

                  This act modifies the Workforce Services Code to reflect federal law exempting American
                  Indian tribes and tribal units from the Federal Unemployment Tax Act. This act provides
                  that services performed in the employ of tribes are covered under state unemployment
                  compensation, and provides for retrospective operation.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      35A-4-201, as last amended by Chapter 375, Laws of Utah 1997
                      35A-4-202, as last amended by Chapter 375, Laws of Utah 1997
                      35A-4-204, as last amended by Chapter 375, Laws of Utah 1997
                      35A-4-311, as renumbered and amended by Chapter 240, Laws of Utah 1996
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 35A-4-201 is amended to read:
                       35A-4-201. General definitions.
                      As used in this chapter:
                      (1) "Base-period" means the first four of the last five completed calendar quarters next
                  preceding the first day of the individual's benefit year with respect to any individual whose benefit
                  year commences on or after January 5, 1986.
                      (2) "Benefit year" means the 52 consecutive week period beginning with the first week
                  with respect to which an individual files for benefits and is found to have an insured status.
                      (3) "Benefits" means the money payments payable to an individual as provided in this
                  chapter with respect to the individual's unemployment.
                      (4) "Calendar quarter" means the period of three consecutive months ending on March 31,
                  June 30, September 30, or December 31, or the equivalent, as the department may by rule
                  prescribe.


                      (5) "Contribution" means the money payments required by this chapter to be made into the
                  Unemployment Compensation Fund by any employing unit on account of having individuals in its
                  employ.
                      (6) "Division" means the Division of Workforce Information and Payment Services.
                      (7) "Employment office" means a free public employment office or branch operated by this
                  or any other state as a part of a state-controlled system of public employment offices or by a federal
                  agency charged with the administration of an unemployment compensation program or free public
                  employment offices.
                      (8) "Employment Security Administration Fund" means the fund established by Section
                  35A-4-505 , and from which administrative expenses under this chapter shall be paid.
                      (9) "Extended benefits" has the meaning specified in Subsection 35A-4-402 (7)(f).
                      (10) "Fund" means the Unemployment Compensation Fund established by this chapter.
                      (11) "Insured average annual wage" means on or before the 15th day of May of each year,
                  the total wages of insured workers for the preceding calendar year, divided by the average monthly
                  number of insured workers, determined by dividing by 12 the total insured workers for the preceding
                  calendar year as determined under the rules of the department calculated to two decimal places,
                  disregarding any fraction of one cent.
                      (12) "Insured average fiscal year wage" means on or before the 15th day of November of
                  each year, the total wages of insured workers for the preceding fiscal year, divided by the average
                  monthly number of insured workers, determined by dividing by 12 the total insured workers for the
                  preceding fiscal year as determined under the rules of the department calculated to two decimal
                  places, disregarding any fraction of one cent.
                      (13) "Insured average fiscal year weekly wage" means the insured average fiscal year wage
                  determined in Subsection (12), divided by 52, calculated to two decimal places, disregarding any
                  fraction of one cent.
                      (14) "Insured average weekly wage" means the insured average annual wage determined in
                  Subsection (11), divided by 52, calculated to two decimal places, disregarding any fraction of one
                  cent.

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                      (15) "Insured status" means that an individual has, during the individual's base-period,
                  performed services and earned wages in employment sufficient to qualify for benefits under Section
                  35A-4-403 .
                      (16) "Insured work" means employment for an employer, as defined in Section 35A-4-203 .
                      (17) "Monetary base period wage requirement" means 8% of the insured average fiscal year
                  wage for the preceding fiscal year, for example, fiscal year 1990 for individuals establishing benefit
                  years in 1991, rounded up to the next higher multiple of $100.
                      (18) "State" includes the Commonwealth of Puerto Rico, the Virgin Islands, and the District
                  of Columbia.
                      (19) "Tribal unit" means a subdivision, subsidiary, or business enterprise wholly owned by
                  an American Indian tribe.
                      [(19)] (20) "Week" means the period or periods of seven consecutive calendar days as the
                  department may prescribe by rule.
                      Section 2. Section 35A-4-202 is amended to read:
                       35A-4-202. Employing units.
                      As used in this chapter:
                      (1) (a) "Employing unit" means:
                      (i) any individual or type of organization that has or subsequent to January 1, 1935, had one
                  or more individuals performing services for it within the state including any:
                      (A) partnership;
                      (B) association;
                      (C) trust;
                      (D) estate;
                      (E) joint stock company;
                      (F) insurance company;
                      (G) limited liability company;
                      (H) limited liability partnership;
                      (I) joint venture;

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                      (J) corporation, whether domestic or foreign;
                      (K) the receiver, trustee in bankruptcy, trustee or successor of any entity listed in Subsections
                  (1)(a)(i)(A) through (J); [or]
                      (L) the legal representative of a deceased person; or
                      (M) a tribal unit; or
                      (ii) any properly and legally licensed employee leasing company as defined by Section
                  58-59-102 .
                      (b) The department may adopt rules specific to employee leasing companies pursuant to Title
                  63, Chapter 46a, Utah Administrative Rulemaking Act.
                      (c) All individuals performing services within this state for any employing unit that
                  maintains two or more separate establishments within this state are considered to be performing
                  services for a single employing unit for all the purposes of this chapter.
                      (d) Each individual employed to perform or to assist in performing the work of any person
                  in the service of an employing unit is considered to be engaged by the employing unit for all the
                  purposes of this chapter whether the individual was hired or paid directly by the employing unit or
                  by the person, provided the employing unit had actual or constructive knowledge of the work.
                      (2) "Hospital" means an institution that is licensed, certified, or approved by the Department
                  of Health as a hospital.
                      (3) "Institution of higher education," for the purposes of this section, means an educational
                  institution that:
                      (a) (i) admits, as regular students only, individuals having a certificate of graduation from
                  a high school or the recognized equivalent of a certificate;
                      (ii) is legally authorized in this state to provide a program of education beyond high school;
                      (iii) provides:
                      (A) an educational program for which it awards a bachelor's or higher degree;
                      (B) a program that is acceptable for full credit toward a bachelor's or higher degree;
                      (C) a program of postgraduate or postdoctoral studies; or
                      (D) a program of training to prepare students for gainful employment in a recognized

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                  occupation; and
                      (iv) is a public or other nonprofit institution.
                      (b) All colleges and universities in this state are institutions of higher education for purposes
                  of this section.
                      Section 3. Section 35A-4-204 is amended to read:
                       35A-4-204. Definition of employment.
                      (1) Subject to the other provisions of this section, "employment" means any service
                  performed for wages or under any contract of hire, whether written or oral, express or implied,
                  including service in interstate commerce, and service as an officer of a corporation.
                      (2) "Employment" includes an individual's entire service performed within or both within
                  and without this state if one of Subsections (2)(a) through (k) is satisfied.
                      (a) The service is localized in this state. Service is localized within this state if:
                      (i) the service is performed entirely within the state; or
                      (ii) the service is performed both within and without the state, but the service performed
                  without the state is incidental to the individual's service within the state, for example, is temporary
                  or transitory in nature or consists of isolated transactions.
                      (b) (i) The service is not localized in any state but some of the service is performed in this
                  state and the individual's base of operations, or, if there is no base of operations, the place from
                  which the service is directed or controlled, is in this state; or
                      (ii) the individual's base of operations or place from which the service is directed or
                  controlled is not in any state in which some part of the service is performed, but the individual's
                  residence is in this state.
                      (c) (i) (A) The service is performed entirely outside this state and is not localized in any
                  state;
                      (B) the worker is one of a class of employees who are required to travel outside this state in
                  performance of their duties; and
                      (C) (I) the base of operations is in this state; or
                      (II) if there is no base of operations, the place from which the service is directed or

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                  controlled is in this state.
                      (ii) Services covered by an election under Subsection 35A-4-310 (3), and services covered
                  by an arrangement under Section 35A-4-106 between the division and the agency charged with the
                  administration of any other state or federal unemployment compensation law, under which all
                  services performed by an individual for an employing unit are considered to be performed entirely
                  within this state, are considered to be employment if the division has approved an election of the
                  employing unit for whom the services are performed, under which the entire service of the individual
                  during the period covered by the election is considered to be insured work.
                      (d) (i) The service is performed after December 31, 1977, in the employ of this state or any
                  of its instrumentalities or any county, city, town, school district, or any political subdivision thereof
                  or any of its instrumentalities or any instrumentality or more than one of the foregoing or any
                  instrumentality of any of the foregoing and one or more other states or political subdivisions or
                  Indian tribes or tribal units if:
                      (A) the service is excluded from employment as defined in the Federal Unemployment Tax
                  Act, 26 U.S.C. 3306(c)(7);
                      (B) the service is not excluded from employment by Section 35A-4-205 ; and
                      (C) as to any county, city, town, school district, or political subdivision of this state, or any
                  instrumentality of the same or Indian tribes or tribal units, that service is either:
                      (I) required to be treated as covered employment as a condition of eligibility of employers
                  in this state for Federal Unemployment Tax Act employer tax credit;
                      (II) required to be treated as covered employment by any other requirement of the Federal
                  Unemployment Tax Act, as amended; or
                      (III) not required to be treated as covered employment by any requirement of the Federal
                  Unemployment Tax Act, but coverage of the service is elected by a majority of the members of the
                  governing body of the political subdivision or instrumentality or tribal unit in accordance with
                  Section 35A-4-310 .
                      (ii) Benefits paid on the basis of service performed in the employ of this state shall be
                  financed by payments to the division instead of contributions in the manner and amounts prescribed

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                  by Subsections 35A-4-311 (2)(a) and (4).
                      (iii) Benefits paid on the basis of service performed in the employ of any other governmental
                  entity or tribal unit described in this Subsection (2) shall be financed by payments to the division in
                  the manner and amount prescribed by the applicable provisions of Section 35A-4-311 .
                      (e) The service is performed by an individual in the employ of a religious, charitable,
                  educational, or other organization, but only if:
                      (i) the service is excluded from employment as defined in the Federal Unemployment Tax
                  Act, 26 U.S.C. 3306(c)(8), solely by reason of Section 3306 (c)(8) of that act; and
                      (ii) the organization had four or more individuals in employment for some portion of a day
                  in each of 20 different weeks, whether or not the weeks were consecutive, within either the current
                  or preceding calendar year, regardless of whether they were employed at the same moment of time.
                      (f) (i) The service is performed outside the United States after December 31, 1971, except
                  in Canada, in the employ of an American employer, other than service that is considered employment
                  under the provisions of Subsection (2) or the parallel provisions of another state's law if:
                      (A) the employer's principal place of business in the United States is located in this state;
                      (B) the employer has no place of business in the United States but is:
                      (I) an individual who is a resident of this state;
                      (II) a corporation that is organized under the laws of this state; or
                      (III) a partnership or trust in which the number of partners or trustees who are residents of
                  this state is greater than the number who are residents of any one other state; or
                      (C) none of the criteria of Subsections (2)(f)(i)(A) and (B) is met but:
                      (I) the employer has elected coverage in this state; or
                      (II) the employer fails to elect coverage in any state and the individual has filed a claim for
                  benefits based on that service under the law of this state.
                      (ii) "American employer" for purposes of this Subsection (2) means a person who is:
                      (A) an individual who is a resident of the United States;
                      (B) a partnership if [two-thirds] 2/3 or more of the partners are residents of the United                   States;
                      (C) a trust if all of the trustees are residents of the United States;

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                      (D) a corporation organized under the laws of the United States or of any state;
                      (E) a limited liability company organized under the laws of the United States or of any state;
                      (F) a limited liability partnership organized under the laws of the United States or of any
                  state; or
                      (G) a joint venture if [two-thirds] 2/3 or more of the members are individuals, partnerships,
                  corporations, limited liability companies, or limited liability partnerships that qualify as American
                  employers.
                      (g) The service is performed after December 31, 1971:
                      (i) by an officer or member of the crew of an American vessel on or in connection with the
                  vessel; and
                      (ii) the operating office from which the operations of the vessel, operating on navigable
                  waters within, or within and without, the United States, is ordinarily and regularly supervised,
                  managed, directed, and controlled within this state.
                      (h) A tax with respect to the service in this state is required to be paid under any federal law
                  imposing a tax against which credit may be taken for contributions required to be paid into a state
                  unemployment fund or that, as a condition for full tax credit against the tax imposed by the Federal
                  Unemployment Tax Act, is required to be covered under this chapter.
                      (i) (i) Notwithstanding Subsection 35A-4-205 (1)(t), the service is performed:
                      (A) as an agent-driver or commission-driver engaged in distributing meat products,                   vegetable
                  products, fruit products, bakery products, beverages other than milk, or laundry or dry cleaning
                  services, for the driver's principal; or
                      (B) as a traveling or city salesman, other than as an agent-driver or commission-driver,
                  engaged on a full-time basis in the solicitation on behalf of and the transmission to the salesman's
                  principal, except for sideline sales activities on behalf of some other person, of orders from
                  wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments
                  for merchandise for resale or supplies for use in their business operations.
                      (ii) The term "employment" as used in this Subsection (2) includes services described in
                  Subsection (2)(i)(i) performed after December 31, 1971, only if:

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                      (A) the contract of service contemplates that substantially all of the services are to be
                  performed personally by the individual;
                      (B) the individual does not have a substantial investment in facilities used in connection with
                  the performance of the services other than in facilities for transportation; and
                      (C) the services are not in the nature of a single transaction that is not part of a continuing
                  relationship with the person for whom the services are performed.
                      (j) The service is performed after December 31, 1977, by an individual in agricultural labor
                  as defined in Section 35A-4-206 .
                      (k) The service is domestic service performed after December 31, 1977, in a private home,
                  local college club, or local chapter of a college fraternity or sorority performed for a person who paid
                  cash remuneration of $1,000 or more during any calendar quarter in either the current calendar year
                  or the preceding calendar year to individuals employed in the domestic service.
                      (3) Services performed by an individual for wages or under any contract of hire, written or
                  oral, express or implied, are considered to be employment subject to this chapter, unless it is shown
                  to the satisfaction of the division that:
                      (a) the individual is customarily engaged in an independently established trade, occupation,
                  profession, or business of the same nature as that involved in the contract of hire for services; and
                      (b) the individual has been and will continue to be free from control or direction over the
                  means of performance of those services, both under the individual's contract of hire and in fact.
                      (4) If an employer, consistent with a prior declaratory ruling or other formal determination
                  by the division, has treated an individual as independently established and it is later determined that
                  the individual is in fact an employee, the department may by rule provide for waiver of the
                  employer's retroactive liability for contributions with respect to wages paid to the individual prior
                  to the date of the division's later determination, except to the extent the individual has filed a claim
                  for benefits.
                      (5) Notwithstanding any other provisions of this chapter, and in accordance with rules made
                  by the department, if two or more related corporations concurrently employ the same individual and
                  compensate the individual through a common paymaster that is one of the corporations, each

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                  corporation:
                      (a) is considered to have paid as remuneration to the individual only the amounts actually
                  disbursed by it to the individual; and
                      (b) is not be considered to have paid as remuneration to the individual amounts actually
                  disbursed to the individual by another of the other related corporations.
                      Section 4. Section 35A-4-311 is amended to read:
                       35A-4-311. Coverage and liability of governmental units or Indian tribal units --
                  Payments in lieu of contributions -- Delinquencies -- Payments to division.
                      (1) Notwithstanding any other provisions of this chapter, benefits paid to employees of
                  counties, cities, towns, school districts, political subdivisions, or their instrumentalities or Indian
                  tribes or tribal units shall be financed in accordance with the following provisions:
                      (a) Any county, city, town, school district, political subdivision, or instrumentality thereof
                  or Indian tribes or tribal units that is or becomes subject to this chapter may pay contributions under
                  the provisions of Section 35A-4-302 , or may elect to pay to the division for the unemployment fund
                  an amount equal to the amount of regular benefits and, as provided in Subsection (4), the extended
                  benefits attributable to service in the employ of such organization, and paid to individuals for weeks
                  of unemployment that begin during the effective period of such election.
                      (b) Any county, city, town, school district, political subdivision, or instrumentality thereof
                  or Indian tribes or tribal units of the state, or combination of the foregoing, that is or becomes subject
                  to this chapter may elect to become liable for payments in lieu of contributions for a period of not
                  less than one contribution year beginning with the date on which the organization becomes subject
                  to this chapter by filing a written notice of its election with the division not later than 30 days
                  immediately following the date that the division gives notice to the organization that it is subject
                  to this chapter.
                      (c) Any county, city, town, school district, political subdivision, or instrumentality thereof,
                  or Indian tribes or tribal units, or combination of the foregoing, that makes an election in accordance
                  with Subsections (1)(a) and (b) shall continue to be liable for payments in lieu of contributions until
                  it files with the division a written notice terminating its election. A notice terminating such election

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                  must be filed by January 31 of the year in which the termination is to be effective.
                      (d) Any county, city, town, school district, political subdivision, or instrumentality thereof
                  of the state, or Indian tribes or tribal units, or combination of the foregoing which have been paying
                  contributions under this chapter may change to a reimbursable basis by filing with the division, no
                  later than 30 days prior to the beginning of any contribution year, a written notice of election to
                  become liable for payments in lieu of contributions; the organization may not terminate such election
                  for a period of two contribution years.
                      (e) The division may, for good cause, extend the period within which a notice of election or
                  a notice of termination must be filed and may permit an election to be retroactive.
                      (f) The division, in accordance with department rules, shall notify each county, city, town,
                  school district, political subdivision, or Indian tribes or tribal units, or their instrumentalities of any
                  determination that it may make of its status as an employer, or the effective date of any election
                  which it makes, and of any termination of such election. The determinations shall be subject to
                  reconsideration, appeal, and review in accordance with the provisions of Section 35A-4-508 .
                      (2) Payments in lieu of contributions shall be made in accordance with the provisions of this
                  Subsection (2).
                      (a) At the end of each calendar month, or at the end of any other period as determined by the
                  division, the division shall bill each county, city, town, school district, political subdivision, or
                  instrumentality thereof, or combination of the foregoing, that has elected to make payments in lieu
                  of contributions for an amount equal to the full amount of regular benefits and, as provided in
                  Subsection (4), the amount of extended benefits paid during such month or other prescribed period
                  that is attributable to service in the employ of such county, city, town, school district, political
                  subdivision, or instrumentality thereof.
                      (b) Payment of any bill rendered under Subsection (2)(a) shall be made not later than 30 days
                  after such bill was mailed to the governmental unit or tribal unit or was otherwise delivered to it,
                  unless there has been an application for review and redetermination in accordance with Subsection
                  (2)(c).
                      (c) (i) The amount due specified in any bill from the division shall be conclusive on the

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                  governmental unit or tribal unit unless, no later than 15 days after the bill was mailed or otherwise
                  delivered to it, the governmental unit or tribal unit files an application for redetermination by the
                  division or an appeal, setting forth the grounds for such application or appeal.
                      (ii) Upon an application for redetermination the division shall promptly review and
                  reconsider the amount due specified in the bill and shall thereafter issue a redetermination.
                      (iii) Any such redetermination shall be conclusive on the governmental unit or tribal unit
                  unless, no later than 15 days after the redetermination was mailed to its last known address or
                  otherwise delivered to it, the governmental unit or tribal unit files an appeal, setting forth the grounds
                  for the appeal.
                      (iv) Proceedings on appeal from the amount of a bill rendered under this Subsection (2) or
                  a redetermination of the amount shall be in accordance with the provisions of Section 35A-4-508 .
                      (d) Past due payments of amounts in lieu of contributions shall be subject to the same
                  interest and penalties that, under Subsection 35A-4-305 (1), attach to past due contributions.
                      (3) (a) If any governmental unit or tribal unit is delinquent in making payments in lieu of
                  contributions as required under Subsection (2), the division may terminate the governmental unit's
                  or tribal unit's election to make payment in lieu of contributions as of the beginning of the next
                  contribution year, and the termination shall be effective for that and the next contribution year.
                      (b) (i) Failure of the Indian tribe or tribal unit to make required payments, including
                  assessments of interest and penalty, within 90 days of receipt of a billing notice will cause the Indian
                  tribe to lose the option to make payments in lieu of contributions, as described in Subsection
                  35A-4-311 (1), for the following tax year unless payment in full is received before contribution rates
                  for the next tax year are computed.
                      (ii) Any Indian tribe that loses the option to make payments in lieu of contributions due to
                  late payment or nonpayment, as described in Subsection (3)(b)(i), shall have the option reinstated
                  if, after a period of one year:
                      (A) all contributions have been made timely; and
                      (B) no contributions, payments in lieu of contributions for benefits paid, penalties, or interest
                  remain outstanding.

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                      (iii) Notices of payment and reporting delinquency to Indian tribes or their tribal units shall
                  include information that failure to make full payment within the prescribed time frame:
                      (A) will cause the Indian tribe to be liable for taxes under the Federal Unemployment Tax
                  Act; and
                      (B) will cause the Indian tribe to lose the option to make payments in lieu of contributions.
                      (4) Each governmental unit or tribal unit liable for payments in lieu of contributions shall
                  pay to the division for the fund the amount of regular benefits plus the amount of extended benefits
                  paid that are attributable to service in the employ of such governmental unit or tribal unit. Provided,
                  that governmental units or tribal units electing payments in lieu of contributions shall, with respect
                  to extended benefit costs for weeks of unemployment beginning prior to January 1, 1979, pay an
                  amount equal to 50% of such costs and with respect to extended benefit costs for weeks of
                  unemployment beginning on or after January 1, 1979, shall pay 100% of such costs. If benefits paid
                  to an individual are based on wages paid by more than one employer and one or more of such
                  employers are liable for payments in lieu of contributions, the amount payable to the fund by each
                  employer liable for the payments shall be determined in accordance with Subsection (4)(a) or (4)(b).
                      (a) If benefits paid to an individual are based on wages paid by one or more employers who
                  are liable for payments in lieu of contributions and on wages paid by one or more employers who
                  are liable for contributions, the amount of benefits payable by each employer that is liable for
                  payments in lieu of contributions shall be an amount that bears the same ratio to the total benefits
                  paid to the individual as the total base-period wages paid to the individual by such employer bear
                  to the total base-period wages paid to the individual by all of his base-period employers.
                      (b) If benefits paid to an individual are based on wages paid by two or more employers who
                  are liable for payments in lieu of contributions, the amount of benefits payable by each such
                  employer shall be an amount that bears the same ratio to the total benefits paid to the individual as
                  the total base-period wages paid to the individual by such employer bear to the total base-period
                  wages paid to the individual by all of his base-period employers.
                      (5) (a) Two or more Indian tribe or tribal unit employers who have become liable for
                  payments in lieu of contributions, in accordance with the provisions of this section and Subsection

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                  35A-4-204 (2)(d), may file a joint application to the division for the establishment of a group account
                  for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of
                  these employers. Each application shall identify and authorize a group representative to act as the
                  group's agent for the purpose of this Subsection (5).
                      (b) Upon approval of the application, the division shall establish a group account for these
                  employers effective as of the beginning of the calendar quarter in which it receives the application
                  and shall notify the group's representative of the effective date of the account. This account shall
                  remain in effect for not less than one contribution year and thereafter until terminated at the
                  discretion of the division or upon application by the group.
                      (c) Upon establishment of the account, each member of the group shall be liable for
                  payments in lieu of contributions with respect to each calendar quarter in the amount that bears the
                  same ratio to the total benefits paid in the quarter attributable to service performed in the employ of
                  all members of the group as the total wages paid for service in employment by such member in the
                  quarter bear to the total wages paid during the quarter for service performed in the employ of all
                  members of the group.
                      Section 5. Retrospective operation.
                      This act has retrospective operation to December 21, 2000.

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