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Kurbatov v. Dep't of Labor & Indus., No. 2200 C.D. 2010 (Pa. Commw. Ct. Sept. 30, 2011)

Kurbatov v. Dep't of Labor & Indus., No. 2200 C.D. 2010 (Pa. Commw. Ct. Sept. 30, 2011)

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Published by Paul Masters
Pennsylvania Commonwealth Court reissued July 7 opinion affirming a construction company's unemployment compensation tax assessment after finding that the company's workers were employees and not independent contractors.
Pennsylvania Commonwealth Court reissued July 7 opinion affirming a construction company's unemployment compensation tax assessment after finding that the company's workers were employees and not independent contractors.

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Published by: Paul Masters on Oct 04, 2011
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter B. Kurbatov, d/b/a :PBK Construction, :Petitioner ::v. : No. 2200 C.D. 2010:Department of Labor and :Industry, Office of Unemployment :Compensation, Tax Services, :Respondent :
PER CURIAMO R D E R
AND NOW, this 30
th
day of September, 2011, it is ordered that theabove-captioned opinion filed on July 7, 2011, shall be designated OPINION,rather than MEMORANDUM OPINION, and it shall be reported.
 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter B. Kurbatov, d/b/a :PBK Construction, :Petitioner ::v. : No. 2200 C.D. 2010:Department of Labor and : Submitted: April 15, 2011Industry, Office of Unemployment :Compensation, Tax Services, :Respondent :BEFORE: HONORABLE DAN PELLEGRINI, JudgeHONORABLE ROBERT SIMPSON, JudgeHONORABLE JOHNNY J. BUTLER, Judge
OPINION BYJUDGE SIMPSON FILED: July 7, 2011
In this appeal, Peter B. Kurbatov, d/b/a PBK Construction (PBK),asks whether the Department of Labor and Industry (Department) erred in denyingits petition for reassessment (petition) of unemployment compensation taxes. Thecentral issue is whether PBK
‟s workers
are employees (for whose servicesunemployment compensation taxes are due) or independent contractors (for whoseservices taxes are not due). The Department concluded the workers wereemployees, and it assessed unemployment compensation taxes against PBK. Uponreview, we affirm.In December 2009, the Office of Unemployment Tax Servicesassessed PBK $35,936.85 for unpaid contributions, interest and penalties for thesecond, third and fourth quarters of 2005, 2006, 2007 and 2008. Notice of 
 
2Assessment, R.R. 94a-95a.
1
PBK petitioned for reassessment on the ground thatthe workers for whom contributions were assessed were independent contractorsand thus did not qualify as employees under Section 4(
l
)(2)(B) of theUnemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897,
as amended 
, 43 P.S. §753(
l
)(2)(B). A hearing ensuedbefore a hearing officer.Two witnesses testified: the unemployment compensation tax agent(Agent) who
audited PBK‟s records
and Kurbatov. In addition, the hearing officerreceived into evidence a packet of documents submitted by PBK.The Department subsequently issued a final decision holding the
workers were PBK‟
s employees. The Department made findings which may besummarized as follows.Kurbatov is the sole proprietor of PBK, a business engaged ininstallation of exterior insulation for commercial
 properties. Dep‟t
Op., Finding of Fact (F.F.) No. 2. Companies contract with PBK for construction projects.F.F. No. 4. PBK hires individuals to complete the work on projects. F.F. No. 5.;Notes of Testimony (N.T.), 5/14/11, at 35-36. The size of the project determinesthe number of workers PBK hires. Id. Some workers work on the full project.
1
The Agent testified he did not perform assessments for the first quarter of each yearbecause the work involved outside construction, and he presumed the workers would not performoutside work during that time of year. Notes of Testimony (N.T.), 5/14/11, at 16.

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