Hotel Del Coronado Corp. v. Employment Development Department

Opinion

WIENER, Acting P. J. Plaintiff Hotel del Coronado Corporation (Hotel Del) appeals a summary judgment in favor of Employment Development Department of the State of California (Department). We affirm.

I

On April 28, 1981, the Department levied an assessment of $8,084 for unemployment tax contributions pursuant to Unemployment Insurance [61]Code section 11311 on the Hotel Del. The amount of the assessment represented unreported wages of musicians for the period January 1, 1978, to September 30, 1980. The assessment was authorized under section 681 which made certain musicians the statutory employees of the person utilizing their services under certain prescribed conditions.2 Section 681 was later repealed (Stats. 1982, ch. 1215, § 3, p. 4505, eff. Jan. 1, 1983).

On February 12, 1982, Hotel Del petitioned for review of this assessment under section 1222. Following a hearing the administrative law judge rejected Hotel Del’s argument that the repeal of section 681 estopped the Department from pursuing assessments made before the date of repeal. Hotel Del unsuccessfully appealed this decision to the California Unemployment Insurance Appeals Board.

Hotel Del then filed this action seeking a refund of the taxes it had paid under protest. Both parties moved for summary judgment. The court rejected Hotel Del’s assertion that the repeal of section 681 eliminated its liability for the assessments made before the date of repeal and denied its motion for summary judgment. The court granted the Department’s motion. This appeal ensued.

II

The Department determined Hotel Del filed deficient unemployment tax contributions for the period January 1, 1978, through September 30, 1980. Accordingly it assessed deficiencies against Hotel Del for that period. At the time of the assessment in 1981 section 1110 required the taxpayer to pay such taxes as follows: “(a) Employer contributions . . . are due and payable on the first day of the calendar month following the close of each calendar quarter and shall become delinquent if not paid on or before the last day of that month.” Thus under the statute it is clear Hotel Del was liable for the unpaid taxes during the period from April 1, 1978, through October 1, 1980.

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