STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

PREMIER STAFFING, INC. 

V. A.A. 01-91

DEROBBIO, C.J. This matter is before the Court on the complaint of Premier Staffing, Inc., filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which upheld the finding of the Tax Division that complainant was a successor corporation to the Southern New England Temporary, Inc.

The appeal was before the Board of Review as a result of an appeal filed by the taxpayer/employer on May 9, 2001. On June 26, 2001 a taxpayer/employer repre- sentative was present with counsel before the Board. Its Tax Coordinator represented the Tax Division.

The Board determined that the Tax Division’s decision was a proper adjudication of the case and that Premier Staffing, Inc. is a successor corporation to the Southern New England Temporary, Inc., and upheld the Tax Division’s decision. Thereafter, Premier Staffing, Inc. filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws §28-44-52.

The issue before the Court is whether the Board’s determination that the Tax Division’s decision was a proper adjudication of the facts and that the complainant Premier Staffing, Inc. was a successor corporation to the Southern New England Temporary Inc. was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

The Board of Review made the following findings of fact and conclusions:

"The appeal involves a determination by the Tax Division that the taxpayer/employer is a successor employer to Southern New England Temporary Inc. A review of the official file, the testimony of the parties before the Board and argument presented by the parties has established that the taxpayer/employer comes within the purview of Section 28-43-10 of the Rhode Island Employment Security Act. Section 28-43-10(a)(1) provides that:

‘Whenever any employing unit in any manner (emphasis supplied) succeeds to...

or acquires or has acquired...substantially all the assets.’

In this appeal the Board finds that the chief asset of Southern New England Temporary, Inc., was the skill, knowledge and effort of its president, William C. Bryson.

Although Premier Staffing has listed as its president a Ms. Jane Avedisian, the de facto chief operating officer both for Southern New England Temporary, Inc., and Premier Staffing is William C. Bryson. This fact, among other facts indicating that Mr Bryson controlled both entities, cited in the record by the Tax Coordinator, was not sufficiently rebutted for the Board to reach a contrary conclusion.

The taxpayer/employer elected not to present witnesses or the testimony of Ms Avedisian regarding the issue of Mr Bryson’s total control of Premier Staffing, Inc. Therefore, it is the Board’s determination that the taxpayer/employer is a successor corporation under Section 28-43-10(a)(1).

The decision of the Tax Division is sustained and the taxpayer/employer’s appeal is quashed."

The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

28-44-54. Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Rhode Island General Laws § 42-35-15(g)(5)(6).

Accordingly, the decision of the Board is hereby affirmed.