Employment Dept. v. Stock Secrets, Inc., 05-TAX-00070.

• Decision Date: 03 January 2007
• Docket Number: A129371.,05-TAX-00070.
• Parties: EMPLOYMENT DEPARTMENT, Petitioner, v. STOCK SECRETS, INC., Respondent.
• Court: Oregon Court of Appeals

150 P.3d 1090

210 Or. App. 426

EMPLOYMENT DEPARTMENT, Petitioner, v. STOCK SECRETS, INC., Respondent.

05-TAX-00070.

A129371.

Court of Appeals of Oregon.

Argued and Submitted September 6, 2006.

Decided January 3, 2007.

Paul L. Smith, Assistant Attorney General, argued the cause for petitioner. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

No appearance for respondent.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge,^* and LINDER, Judge pro tempore.

LINDER, J. pro tempore.

Petitioner, the State of Oregon Employment Department, seeks review of a final order of an administrative law judge (ALJ) exempting respondent, a corporation, from paying unemployment insurance taxes. More specifically, the ALJ determined that the corporation, which is owned and controlled by a single individual, qualifies for an exemption pursuant to a statute that applies to family-owned and controlled corporations. The department argues that respondent does not qualify for the exemption because, as "family" is defined by the legislature for this purpose, the exemption applies only where two or more members of the same family substantially own and control the corporation. Because we agree, we reverse and remand.

The department does not challenge the ALJ's factual findings, so we draw the following facts from the ALJ's final order. Respondent, Stock Secrets, Inc., is a corporation that is wholly owned by Matt Morsa. Respondent is, in effect, a one-person operation. Morsa is respondent's president and only officer, its only shareholder, and its only paid employee.

Morsa requested that the department exempt the corporation from paying unemployment insurance taxes pursuant to ORS 657.044, which gives corporations an exemption for work performed by corporate officers who are directors of the corporation, have a substantial ownership in it, and who are "members of the same family." Morsa claimed that he met all three criteria. The department agreed that, as the sole owner and only officer of the corporation, he met the first two. The department denied the requested exemption, however, because it concluded that Morsa, as a single individual, did not meet the statutory requirement of being a "family." As the department understands that requirement, a corporation must be owned and controlled by two or more individuals with a familial relationship to qualify for the exemption. Morsa's sole ownership and control therefore did not meet the statute's requirements.

Respondent administratively challenged the department's denial. The ALJ determined that the legislature did not delegate to the department the authority to interpret a "family" to consist of two or more individuals, as the department has done by administrative rule. Relying on his understanding of the policy that the legislature sought to further, the ALJ concluded that the legislature intended to allow small corporations, including those owned by a single individual, to be entitled to an exemption from unemployment insurance taxes for its corporate officer. Because the ALJ's conclusion turns on the meaning of a statutory term, we review the ALJ's decision for legal correctness. See ORS 183.482(8)(a); Springfield Education Assn. v. School Dist., 290 Or. 217, 224, 621 P.2d 547 (1980) ("The determination of the meaning of a statute is one of law, ultimately for the court.").

As a general proposition, employers are required to pay unemployment insurance taxes on all wages paid for services performed by employees. See ORS 657.505. For that obligation to attach, the services performed must qualify as "employment," as defined in ORS 657.030 to 657.094. The statutory scheme begins with an encompassing definition of employment as meaning "service[s] for an employer * * * performed for remuneration or under any contract of hire, written or oral, express or implied." ORS 657.030(1). It then sets forth exclusions for many activities that would otherwise qualify as "employment." The specific exclusion pertinent to this case is contained in ORS 657.044(1)(a), which provides, in part:

"As used in this chapter, `employment' does not include service performed for:

"(a) A corporation by corporate officers who are directors of the corporation, who have a substantial ownership interest in the corporation and who are members of the same family if the corporation elects not to provide coverage for those individuals."

(Emphasis added.) The statute then defines the terminology that is at issue in this case. ORS 657.044(3) provides:

"As used in this section, `members of the same family' means persons who are members of a family as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren."

By rule, the department has clarified its understanding that the term "family," as used in ORS 657.044(1)(a), means "two or more individuals related as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren." OAR 471-031-0017(1)(b) (emphasis added).

The crux of the issue in this case is whether the department's understanding of the statutory term "family," as reflected in its administrative rule, is correct.¹ If so, a family, for purposes of ORS 657.044(1)(a), must consist of "two or more individuals" and an individually owned corporation, such as this one, does not qualify for the exemption. The issue is one of statutory interpretation, and we begin by examining the text and context of the statute, because a statute's wording "is the best evidence of the legislature's intent." PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993).

As our earlier quotation of ORS 657.044(3) reveals, the legislature expressly defined "members of the same family" to mean "persons who are members of a family as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren." The definition expressly requires a family relationship between "persons." In particular, those persons must be members of a family "as" parents, stepparents, and so on. As the department correctly observes, a person cannot be a parent to himself, a spouse to himself, his own child, his own in-law, or have any of the other relationships specified in the statute. In keeping with that understanding of the legislature's intended meaning, the statute consistently uses plural rather than singular references (e.g., corporate "officers," corporate "directors," and family "members"). See Schuette v. Dept. of Revenue, 326 Or. 213, 217-18, 951 P.2d 690 (1997) (the repeated use of a singular or plural noun form provides some indication of the legislature's intent).

Finally, as the department correctly argues, even apart from the definition provided by the legislature, the term "family" is a ...