dissenting.
I agree with the majority that the owner-operators are employees and that petitioner is subject to unemployment taxes. I disagree with the conclusion of the majority regarding the correctness of the assessment. I would remand the case for further proceedings to determine the correct amount of tax owed by petitioner.
The majority, citing ORS 657.683(4), concludes that petitioner has the burden of proving not only that the assessment is incorrect, but what the correct figure would be. Because petitioner has failed to establish the correct amount of tax due, the admittedly incorrect assessment is affirmed.
ORS 657.683(4) provides:
"All testimony at any hearing held under ORS 657.679 and 657.681 shall be recorded but need not be transcribed unless a petition for judicial review from the decision of the referee is filed in the manner and within the time prescribed. At any hearing held as provided in ORS *568657.679 and 657.681 the determination or assessment of the assistant director or his authorized representative shall be prima facie correct and the burden shall be upon the protesting employing unit to prove that it is incorrect. Thereafter the referee shall enter his findings of fact and decision, either affirming, modifying, or setting aside the determination or assessment of the assistant director or his authorized representative and in the case of an assessment, the referee may increase or decrease the amount of the assessment. The emloying unit and the assistant director shall be promptly notified of the decision of the referee.” (Emphasis added.)
Plainly, the burden is on the employer to prove that the assessment is incorrect. It has met this specific burden by showing the auditor used an incorrect formula for calculating the assessment. The auditor testified he had not excluded noncovered wages. The referee found that incorrect figures were used, and the Division concedes on appeal that the total assessment is incorrect.
It may well be that in order for the referee to determine the correct amount, as he is authorized to do, additional information is necessary. However, the referee is allowed by ORS 657.683(4) to set aside the assessment and return the case to the assistant director for further proceedings. The administrative and judicial process is not served by a strict interpretation of a burden of proof that results in affirming an admittedly incorrect tax assessment. Procedures exist whereby the correct amount can be determined. Frustration of the referee in being unable to arrive at a correct figure should not allow the state to collect a tax which is not authorized by statute.
Petitioner met its burden of establishing that the assessment was incorrect. I would remand for a recalculation of the assessment by a correct application of ORS 657.035. Because the majority affirms the incorrect assessment, I dissent.
Joseph, Warren and Young, JJ., join in this dissent.