Section 34-8-170. Commissioner authorized to estimate contributions due; notice of assessment; jeopardy assessment

   (a) If any employer fails or neglects to make a report as required by Code Section 34-8-165 or by rules and regulations, the Commissioner may make an estimate based upon any information in the Commissioner's possession of the amount of wages paid for employment in the period or periods for which no report was filed and upon the basis of such estimate shall compute and assess the amounts of contributions payable by the employer.

(b) If the Commissioner is not satisfied with any report made and filed by any employing unit of the amount of contributions, the Commissioner may compute the amount required to be paid upon the basis of facts contained in the report or reports or may make an estimate upon the basis of any information in his or her possession or that may come into his or her possession and make an assessment of the deficiency.

(c) The assessment shall include penalty as required by Code Section 34-8-165 and interest as required by Code Section 34-8-166 together with all costs incurred in recording and canceling liens.

(d) One or more assessments may be made for the amount due for one or more than one period and overpayments may be offset against underpayments.

(e) The Commissioner shall give to the employing unit against whom an assessment is made a written notice of the assessment. Such notice shall be directed to the last known address of the employing unit as provided to the Commissioner by the employing unit.

(f) (1) Except in the case of failure without good cause to file a return, fraud, or intent to evade any provision of this chapter or authorized regulations, every notice of assessment shall be made within three years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued or within three years after the deficient return is filed, whichever period expires later. An employing unit may waive this limitation period or may consent to its extension.

   (2) In case of failure without good cause to file a return, every notice of assessment shall be made within seven years after the last day of the month following the close of the calendar quarter during which the contribution liability included in the assessment accrued. An employer may waive this limitation period or may consent to its extension.

(g) (1) If the Commissioner finds that the collection of any contributions will be jeopardized by delay, the Commissioner shall thereupon make an assessment of those contributions, noting upon the assessment that it is a jeopardy assessment levied under this Code section and the facts upon which the Commissioner finds that collection of contributions will be jeopardized by delay. The amount of the assessment shall be immediately delinquent, whether or not the time otherwise allowed by law or authorized regulations has expired. When applicable, the penalties and interest provided in Code Sections 34-8-165 and 34-8-166 shall attach to the amount of the contributions specified in the jeopardy assessment.

   (2) In levying the assessment, the Commissioner may demand a deposit of such security as the Commissioner deems necessary to ensure compliance with the department, including additional security from time to time, but not more frequently than monthly, in the amount of accumulating interest. The deposit of sufficient security to ensure compliance shall stay other collection action by the Commissioner while the assessment is under review. The deposit of the sufficient security shall not be a condition for the exercise of the review and appeal rights of the employer pursuant to this chapter. The filing of a petition for reassessment shall not stay collection action by the Commissioner while the assessment is under review but shall stay the sale of all property other than perishable goods seized by the Commissioner pursuant to the collection action until a final decision from a hearing is issued by the Office of State Administrative Hearings.

(h) A jeopardy assessment may be made only upon a finding by the Commissioner, based upon probable cause, that any of the following conditions are met:

   (1) The employer is insolvent;

   (2) The employer has transferred, or is about to transfer, assets for less than fair market value, and by so doing has rendered, or is likely to render, itself insolvent;

   (3) The employing unit has been dissolved;

   (4) Any person liable for the employer's contribution or any owner, officer, director, partner, or other person having charge of the affairs of the employer has departed or is about to depart the State of Georgia and that the departure is likely to deprive the Commissioner of a source of payment of the employer's contributions; or

   (5) Any person referenced in paragraph (4) of this subsection or the employer is secreting assets or is moving, placing, or depositing assets outside of the state for the purpose of interfering with the orderly collection of any contribution. The moving, placing, or depositing of assets outside of the state which constitutes a regular business practice and which does not in any way deplete the assets of the employing unit shall not be deemed to be interfering with the orderly collection of any contribution under this chapter.

(i) Any assessment so made by the Commissioner shall be prima facie good and sufficient for all legal purposes. Notice and demand for such contributions plus interest, penalty, and costs shall be made upon such forms as the Commissioner may prescribe, and the notice and demand shall become final 15 days after the date of delivery of said notice and demand to the employer in person or by mail. Notwithstanding any of the foregoing, an employer may make application for adjustment or refund as provided in Code Section 34-8-164 if the report required by Code Sections 34-8-121 and 34-8-165 has been filed with the Commissioner. In the discretion of the Commissioner, an adjustment or refund may be made after a lien has issued and been recorded, but only if the Commissioner is satisfied the report is complete and accurate. The Commissioner shall require such documentation and may inspect any books or records of the employer as the Commissioner deems necessary to make this determination. An adjustment to the amount due may be made if the lien has not yet been satisfied. If the lien has been satisfied, a refund may be issued by the Commissioner.

Code 1981, § 34-8-170, enacted by Ga. L. 1991, p. 139, § 1; Ga. L. 1997, p. 888, § 1.5.