108.225 Levy for delinquent contributions or benefit overpayments.
(1) Definitions. In this section:
(a) “Contribution" includes a reimbursement or assessment under s. 108.15, 108.151, 108.152, or 108.155, interest for a nontimely payment, fees, and any payment due for a forfeiture imposed upon an employing unit under s. 108.04 (11) (c) or other penalty assessed by the department under this chapter.
(b) “Debt" means any amount due under this chapter.
(c) “Debtor" means a person who owes the department a debt.
(d) “Disposable earnings" means that part of the earnings of any individual after the deduction from those earnings of any amounts required by law to be withheld, any life, health, dental or similar type of insurance premiums, union dues, any amount necessary to comply with a court order to contribute to the support of minor children, and any levy, wage assignment or garnishment executed prior to the date of a levy under this section.
(e) “Federal minimum hourly wage" means that wage prescribed by 29 USC 206 (a) (1).
(f) “Levy" means all powers of distraint and seizure.
(g) “Property" includes all tangible and intangible personal property and rights to such property, including compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, periodic payments received pursuant to a pension or retirement program, rents, proceeds of insurance and contract payments.
(2) Powers of levy and distraint. If any debtor who is liable for any debt neglects or refuses to pay that debt after the department has made demand for payment, the department may collect that debt and the expenses of the levy by levy upon any property belonging to the debtor. Whenever the value of any property that has been levied upon under this section is not sufficient to satisfy the claim of the department, the department may levy upon any additional property of the debtor until the debt and expenses of the levy are fully paid.
(3) Duties to surrender. Any person in possession of or obligated with respect to property or rights to property that is subject to levy and upon which a levy has been made shall, upon demand of the department, surrender the property or rights or discharge the obligation to the department, except that part of the property or rights which is, at the time of the demand, subject to any prior attachment or execution under any judicial process.
(4) Failure to surrender; enforcement of levy.
(a) Any debtor who fails or refuses to surrender any property or rights to property that is subject to levy, upon demand by the department, is subject to proceedings to enforce the amount of the levy.
(b) The department may assess a person who fails to comply with sub. (3) a penalty in the amount of 50 percent of the debt. The department shall serve a final demand as provided under sub. (13) on any person who fails to comply with sub. (3). The department shall issue a determination under s. 108.10 to the person for the amount of the assessment under this subsection no sooner than 7 days after service of the final demand. Assessments under this subsection shall be deposited in the unemployment program integrity fund.
(c) When a 3rd party surrenders the property or rights to the property on demand of the department or discharges the obligation to the department for which the levy is made, the 3rd party is discharged from any obligation or liability to the debtor with respect to the property or rights to the property arising from the surrender or payment to the department.
(5) Actions against this state.
(a) If the department has levied upon property, any person, other than the debtor who is liable to pay the debt out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief under par. (b). No other action to question the validity of or restrain or enjoin a levy by the department may be maintained.
(b) In an action under par. (a), if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.
(c) For purposes of an adjudication under this subsection, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid.
(6) Determination of expenses. The department shall determine its costs and expenses to be paid in all cases of levy.
(7) Use of proceeds.
(a) The department shall apply all money obtained under this section first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the debtor.
(b) The department may refund or credit any amount left after the applications under par. (a), upon submission of a claim therefor and satisfactory proof of the claim, to the person entitled to that amount.
(8) Release of levy. The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy, but that release does not prevent any later levy.
(9) Wrongful levy. If the department determines that property has been wrongfully levied upon, the department may return the property at any time, or may return an amount of money equal to the amount of money levied upon.
(10) Preservation of remedies. The availability of the remedy under this section does not abridge the right of the department to pursue other remedies.
(11) Evasion. Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized under this section with intent to evade or defeat the assessment or collection of any debt is guilty of a Class I felony and shall be liable to the state for the costs of prosecution.
(12) Notice before levy. If no appeal or other proceeding for review permitted by law is pending and the time for taking an appeal or petitioning for review has expired, the department shall make a demand to the debtor for payment of the debt which is subject to levy and give notice that the department may pursue legal action for collection of the debt against the debtor. The department shall make the demand for payment and give the notice at least 10 days prior to the levy, personally or by any type of mail service which requires a signature of acceptance, at the address of the debtor as it appears on the records of the department. The demand for payment and notice shall include a statement of the amount of the debt, including interest and penalties, and the name of the debtor who is liable for the debt. The debtor's refusal or failure to accept or receive the notice does not prevent the department from making the levy. Notice prior to levy is not required for a subsequent levy on any debt of the same debtor within one year of the date of service of the original levy.
(13) Service of levy.
(a) The department shall serve the levy upon the debtor and 3rd party by personal service or by any type of mail service which requires a signature of acceptance.
(b) Personal service shall be made upon an individual, other than a minor or incapacitated person, by delivering a copy of the levy to the debtor or 3rd party personally; by leaving a copy of the levy at the debtor's dwelling or usual place of abode with some person of suitable age and discretion residing there; by leaving a copy of the levy at the business establishment with an officer or employee of the establishment; or by delivering a copy of the levy to an agent authorized by law to receive service of process.
(c) The department representative who serves the levy shall certify service of process on the notice of levy form and the person served shall acknowledge receipt of the certification by signing and dating it. If service is made by mail, the return receipt is the certificate of service of the levy.
(d) The debtor's or 3rd party's failure to accept or receive service of the levy does not invalidate the levy.
(14) Answer by 3rd party. Within 20 days after the service of the levy upon a 3rd party, the 3rd party shall file an answer with the department stating whether the 3rd party is in possession of or obligated with respect to property or rights to property of the debtor, including a description of the property or the rights to property and the nature and dollar amount of any such obligation. If the 3rd party is an insurance company, the insurance company shall file an answer with the department within 45 days after the service of the levy.
(15) Duration of levy. A levy is effective from the date on which the levy is first served on the 3rd party until the liability out of which the levy arose is satisfied, or until the levy is released, whichever occurs first.
(16) Wages exempt from levy.
(a) In the case of forfeitures imposed upon an employing unit under s. 108.04 (11) (c), an individual debtor is entitled to an exemption from levy of the greater of the following:
1. A subsistence allowance of 75 percent of the debtor's disposable earnings;
2. An amount equal to 30 times the federal minimum hourly wage for each full week of the debtor's pay period; or
3. In the case of earnings for a period other than a week, a subsistence allowance computed so that it is equivalent to that provided in subd. 2. using a multiple of the federal minimum hourly wage prescribed by rule of the department.
(am)
1. In the case of benefit overpayments or a penalty imposed under s. 108.04 (11) (bh), an individual debtor is entitled to an exemption from levy of 80 percent of the debtor's disposable earnings, except that:
a. A debtor's disposable earnings are totally exempt from levy if the debtor's wages are below the federal income guideline established under 42 USC 9902 (2) for a household of the debtor's size or the levy would cause that result.
b. Upon petition by a debtor demonstrating hardship, the department may increase the portion of the debtor's disposable earnings that are exempt from levy.
c. The department may decrease or eliminate the exemption from levy under this paragraph if a final determination has been issued under s. 108.09 or a judgment has been entered under s. 108.24 (1) in which the debtor has been found guilty of making a false statement or representation to obtain benefits and the benefits and any assessment under s. 108.04 (11) (cm) have not been paid or reimbursed at the time that the levy is issued, unless the fund's treasurer has written off the debt under s. 108.16 (3) (a).
2. The department shall by rule prescribe a methodology for application of the exemption applicable to a levy under subd. 1. a. at the time that the levy is issued.
(17) Exemptions. The first $1,000 of an account in a depository institution is exempt from any levy to recover a benefit overpayment or penalty imposed under s. 108.04 (11) (bh). No other property is exempt from levy except as provided in sub. (16).
(18) Restriction on employment penalties by reason of levy. No employer may discharge or otherwise discriminate with respect to the terms and conditions of employment against any employee by reason of the fact that his or her earnings have been subject to levy for any one levy or because of compliance with any provision of this section. Whoever willfully violates this subsection may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
(19) Appeal. Any debtor who is subject to a levy proceeding made by the department has the right to appeal the levy proceeding under s. 108.10. The appeal is limited to questions of prior payment of the debt that the department is proceeding against, and mistaken identity of the debtor. The levy is not stayed pending an appeal in any case where property is secured through the levy.
(20) Cost of levy. Whenever property is secured by means of a levy, any 3rd party in possession of the debtor's property is entitled to collect from the debtor a levy fee of $5 for each levy in which a debt is satisfied by means of a single payment and $15 for each levy in which a debt is satisfied by means of more than one payment. The fee is payable from the property levied against and is in addition to the amount of the levy. The 3rd party may charge the fee to the debtor at the time the party transfers the proceeds of the levy to the department.
History: 1989 a. 77; 1997 a. 187, 283; 2001 a. 35, 109; 2003 a. 197; 2005 a. 86, 442; 2011 a. 198, 236; 2013 a. 36; 2013 a. 165 s. 115; 2015 a. 334; 2017 a. 157.