R994-304-101. Transfer of a Trade or Business, or Portion Thereof, with Common Ownership, Management, or Control

(1) The term "person" includes an individual, trust, estate, partnership, association, limited liability company, corporation, government entity, or Indian tribe. The "predecessor employer" is the employer that transfers its trade or business, or a portion of its trade of business, to another employer. The "successor employer" is the employer that acquires the trade or business, or a portion of the trade or business.

(2) Common ownership exists if an employer transfers a trade or business, or a portion of a trade or business, to another employer and at the time of the transfer:

(a) the predecessor employer owns 50% or more of the trade or business of the successor employer. For entities that issue shares of stock ownership, 50% or more of the "voting shares" of stock interest must be common to both; or

(b) an individual with a controlling interest in the predecessor trade or business, transfers that controlling interest to an individual in the successor trade or business and the parties are related in one of the following ways:

(i) spouse;

(ii) parent;

(iii) step parent;

(iv) child;

(v) step child;

(vi) sibling; or

(vii) step sibling.

(3) The Department will determine common management or control using the best available evidence.

(a) Common management will be found if the predecessor and successor employers have the same or similar:

(i) managers, officers, board of directors;

(ii) personnel and human resource policies;

(iii) operating procedures;

(iv) sales and pricing policies;

(v) collection procedures;

(vi) financing policies;

(vii) accounting practices; or

(viii) purchasing practices.

(b) Common control will be found where the predecessor and successor employers have the same or similar:

(i) control of the assets used to conduct the business enterprise;

(ii) financing and/or leasing arrangements;

(iii) contracts; or

(iv) business, professional, and regulatory licenses of the business enterprise.

(4) The factors listed in subsections 3(a) and (3)(b) of this section are not exclusive and are intended as aids for analyzing the facts of each case. The degree of importance of each factor in those subsections varies depending on the nature of the trade or business transferred. Some do not apply to certain trades or businesses and, therefore, should not be given any weight. The Department will scrutinize the facts in each case to assure that the form of the transfer does not obscure the substance of the transfer.