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Freelance v ADES - 5/9/2006

Arizona Court of Appeals Division One Affirms Department of Economic Security Appeal Board’s Dismissal of Employer’s Motion for Reconsideration As Untimely Under A.R.S. § 23-724(A).


Following an unemployment tax audit, Freelance Interpreting Services, Inc. (“Freelance”) requested reconsideration of two determinations by the Arizona Department of Economic Security (“ADES”) issued January 26, 1999. The January 26 letter provided that the determinations would become final within fifteen days of the date of the determination. Freelance’s request for reconsideration bore a postmark of February 12, 1999, seventeen days after the January 26 determinations were issued. ADES ruled that the January 26 determinations were final and binding because Freelance had failed to file its motion within fifteen days as required by A.R.S. § 23-724(A). Freelance appealed, and after a hearing, the Appeals Board affirmed. Freelance then appealed to the Arizona Tax Court, which also affirmed.

Division One affirmed the Tax Court’s decision, finding that the record supported the ruling, that A.R.S. § 23-724(A) is unambiguous, and that no “good cause” exception applies to the statute or the associated regulations. The court rejected Freelance’s argument that Ariz. R. Civ. Pro. 6(e), providing for an additional five days for notice or papers served by mail, applies to A.R.S. § 23-724(A). The statute does not mention Rule 6(e), and ADES’ applicable administrative rule incorporates Ariz. R. Civ. Pro. 6(a), not 6(e). A.A.C. R6-1404(A)(3). Ariz. R. Civ. Pro. 6(a) did not operate to extend Freelance’s deadline. Moreover, the civil rules state that they govern procedure in superior courts of Arizona and that they shall not extend the jurisdiction of superior courts. See Ariz. R. Civ. Pro. 1; Ariz. R. Civ. Pro. 82). Thus the court declined to apply the Rules of Civil Procedure “automatically” to agency procedure.

Judge Barker authored the opinion; Judge Portley and Judge Thompson concurred.

Posted On: 5/22/2006