New Mexico § 51-1-59 - Coverage of Indian tribes

§ 51-1-59. Coverage of Indian tribes

A. The legislature finds that: (1) the state of New Mexico recognizes and respects the Indian tribes and pueblos

as governments that possess the inherent right of self-government; (2) under the Federal Unemployment Tax Act, 1 federal law now expressly exempts Indian tribes and requires that state law provide

that an Indian tribe may elect to make contributions for employment or make reimbursable

payments in lieu of contributions; and (3) in order to comply with the change in federal law, state law must be amended to

provide for the treatment of Indian tribes under the state unemployment insurance

system. B. Benefits based on service in employment of an Indian tribe, tribal unit or a subdivision,

subsidiary or business enterprise wholly owned by a tribe shall be payable in the

same amount, on the same terms and subject to the same conditions as benefits payable

on the basis of other service in employment for other employers pursuant to the Unemployment

Compensation Law. C. An Indian tribe, tribal unit or a subdivision, subsidiary or business enterprise

wholly owned by a tribe may make contributions in the same manner and under the same

conditions as other employers or may elect to reimburse the fund with payments equal

to the amounts of benefits attributable to service in the employ of the tribe, unit,

subdivision, subsidiary or enterprise. D. If an Indian tribe, tribal unit or a subdivision, subsidiary or business enterprise

wholly owned by a tribe elects to make payments in lieu of contributions, the following

provisions shall apply: (1) as used in this section, “ electing entity ” means a tribe, tribal unit or a subdivision, subsidiary or business enterprise,

wholly owned by a tribe, that elects to make payments in lieu of contributions. The tribe as a whole may be an electing entity or an individual tribal unit, subdivision,

subsidiary or enterprise, or a combination of these may be electing entities; (2) an electing entity may elect to make payments in lieu of contributions by filing

a written notice of its election with the division not later than thirty days prior

to the beginning of the taxable year for which its election shall first be effective;

except that, if an election is made prior to July 1, 2001, at the option of the electing

entity the election shall be deemed to be effective December 21, 2000 or January 1,

2001; and (3) once an election is made, payments in lieu of contributions will be used by the

electing entity for the following two taxable years. E. The following provisions apply to payments in lieu of contributions made by an

electing entity: (1) at the end of each calendar quarter, the division shall bill each electing entity

for an amount calculated pursuant to this subsection; except that, in calculating

the initial payments due for an electing entity that has made an election prior to

July 1, 2001, the secretary shall bill the electing entity for the period elapsed

since December 21, 2000; (2) each calendar quarter, each electing entity making payments in lieu of contributions

shall pay to the division an amount equal to twenty-five percent of the total benefit

charges made to the electing entity during the four calendar quarters ending the preceding

June 30. The due date for the payments shall be the tenth day of the first month of each

calendar quarter; (3) in the event that an electing entity making payments in lieu of contributions

incurred no benefit charges during the four calendar quarters ending the preceding

June 30, the electing entity shall pay to the division, each calendar quarter, an

amount equal to one-eighth of one percent of the electing entity's annual taxable

wages paid for such period for employment as estimated by the secretary. The due date for the payments shall be the tenth day of the first month of the calendar

quarter; (4) for each calendar quarter, the secretary shall determine the amount paid by each

electing entity subject to payment in lieu of contributions and the amount of benefits

charged to the electing entity's account; provided that an electing entity shall

not be relieved of charges for benefits paid to an individual who was separated from

the employ of that electing entity for any reason. Each electing entity who has made payments in an amount less than the amount of

benefits charged to the electing entity's account shall pay the balance of the amount

charged within twenty-five days of the notification by the division. If the quarterly payment made by an electing entity pursuant to Paragraph (2) or

(3) of this subsection exceeds the amount of benefits charged to the electing entity's

account, the excess payment shall be refunded on a quarterly basis; (5) payments made by an electing entity pursuant to the provisions of this subsection

shall not be deducted or deductible, in whole or in part, from the remuneration of

individuals in the employ of the electing entity; (6) two or more electing entities may file a joint application for the establishment

of a group account for the purpose of sharing the cost of benefits paid that are attributable

to service in the employ of the entities. The application shall identify and authorize a group representative to act as the

group's agent for the purpose of this paragraph. Upon its approval of the application, the division shall establish a group account

for the electing entities effective as of the beginning of the calendar quarter in

which it receives the application and shall notify the group's representative of the

effective date of the account. The account shall remain in effect for not less than two years and thereafter until

terminated at the discretion of the secretary or upon application by the group. Each group account shall be liable for the prepayment of payments in lieu of contributions

as provided in Paragraphs (2), (3) and (4) of this subsection. Each member of the group account shall be liable to the division for payments in

lieu of contributions with respect to each calendar quarter in the amount that bears

the same ratio to the total benefits paid in the quarter that are attributable to

service performed in the employ of all members of the group as the total wages paid

for service in employment for such member during the quarter bear to the total wages

paid during the quarter for service performed in the employ of all members of the

group. The secretary shall prescribe rules as he deems necessary with respect to applications

for establishment, maintenance and termination of group accounts that are authorized

by this paragraph, for addition of new members to, and withdrawal of active members

from, the accounts and for the determination of the amounts that are payable under

this subsection by members of the group and the time and manner of payments. Each group account may apportion liability for amounts due to the group representative

as the group shall determine; and (7) past-due payments in lieu of contributions are subject to the same penalties that

are applied to past-due contributions under Section 51-1-12 NMSA 1978 . F. Contributions or payments in lieu of contributions unpaid on the date on which

they are due and payable shall bear interest at the rate of one percent per month

from and after such date until payment is received by the division. Interest collected pursuant to this subsection shall be paid into the employment

security department fund. G. Any person, group of individuals, partnership or employing unit that acquires the

organization, trade or business or substantially all the assets thereof from an Indian

tribe or tribal entity shall notify the division in writing by registered mail not

later than five days prior to the acquisition. Unless such notice is given, such acquisition shall be void as against the division,

if, at the time of the acquisition, any contributions or payments in lieu of contributions

are due and unpaid by the tribe or tribal entity, and the assets so acquired shall,

if otherwise allowed by law, be subject to attachment for the debt. H. If an Indian tribe or a tribal entity fails to make a contribution or payment in

lieu of contribution pursuant to the Unemployment Compensation Law, the division shall

mail a notice of nonpayment or delinquency to the noncomplying tribe or tribal entity

at its last known address as shown in division records. If the payment is not made within ninety days of the date the notice is mailed,

the account of the noncomplying tribe or tribal entity shall be terminated. Notice of the termination shall be mailed to the tribe or tribal entity at its last

known address shown in division records. The notice shall be accompanied by a written description of protest rights pursuant

to Section 51-1-8 NMSA 1978 . Termination of an account pursuant to this subsection terminates the tribe or tribal

entity's participation as a contributing employer. I. The secretary may reinstate the account of an Indian tribe or tribal entity that

loses coverage pursuant to Subsection H of this section if the tribe or the tribal

entity pays all contributions, payments in lieu of contributions, interest, penalties,

surcharges and fees that are due and owing. J. If an Indian tribe or tribal entity fails to make contributions or payments in

lieu of contributions pursuant to this section, including any assessed interest and

penalties, within ninety days of a notice of nonpayment or delinquency, the secretary

shall immediately notify the United States internal revenue service and the United

States department of labor. K. Notices of payment and reporting delinquency to an Indian tribe or a tribal entity

shall include an explanation that failure to make full payment within the prescribed

time will cause the tribe or the tribal entity to: (1) be liable for taxes pursuant to the Federal Unemployment Tax Act; (2) lose the option to make payments in lieu of contributions; and (3) lose its status as an employer under the Unemployment Compensation Law and will

cause services performed for the tribe or tribal entity to not be treated as “employment”

under that law. L. Extended benefits paid that are attributable to service in the employ of an Indian

tribe or tribal entity and not reimbursed by the federal government shall be the responsibility

of the Indian tribe or tribal entity. M. Nothing in this section shall be deemed to be a waiver of tribal sovereignty or

sovereign immunity, either directly or indirectly. Compliance by an Indian tribe or tribal entity with the provisions of this section

shall not be deemed to directly or indirectly waive tribal sovereignty or sovereign

immunity. 1

26 U.S.C.A. § 3301 et seq.