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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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(TO SACRATEASER) My current position at work has changed at

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(TO SACRATEASER) My current position at work has changed at work from full-time to part-time. As a result i am applying for unemployment benefits. I am a night courior. Every pay period i receive two checks one for hrs. and one for a vehicle allowance. I have kept all records needed to respond to a 1099 if things were to go south on the vehicle allowance. My vehicle allowance is not listed on my w-2 each year. Since i have records i realize that this situation is a possible earnings problem. I know the ramafications to the employer if i were to report this as earnings and to tell you the truth i dont care. I am pretty much of the opinion to leave things alone and go with the reported earnings with the EDD. At the same time it would be a shame to waste all prep work i have done. All i am trying to do is make my base computation as large as possible as i am sure i will become a casualty of the paperless trend in the future. Happy New Year


to socrateaser
i hope i didnt do this wrong. I put my question in the ( you replied section) please excuse. The point of my question was that with all the records i have, daily logs etc. in anticipation of a possible 1099 , why shouldnt i get the edd to count this as income. the base calculation would be increased and since we didnt fall off the fiscal cliff i am good for 73 weeks of 400.00 per wk benifits. They have cut my hrs back from full-time to part-time and i expect to being unemployed in the near future due to the paperless trend. I dont care what their ramifiacations are.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Thanks for starting a new Q&A. You asked:

The last five years i have been driving 70000 miles each year,i have gotten the impression that if i can prove the miles, i can take the IRS percentage say .55 per mile and if my number is XXXXX than that i am fine. that number is XXXXX and the number i receive is 15600. I would really like your comment on this. there is one thing i have not stated,I am still working for the company, my position has been changed from full-time to part-time and i am trying to get my base calculation as large as possible cause i think since the company is going paperless, its a matter of time before i am reduced to full unemployment. thats why this is such a headache for me. I am not one to normally burn bridges since the world is so small .


If you can show that the amount paid to you is earnings, because it is not actually being paid to reimburse you for the actual cost of your vehicle expense, then you can report this to the EDD in your initial claim. Your employer and the EDD investigator will undoubtedly challenge your claim and you will have to appeal to the UI administrative law judge (ALJ).

The IRS mileage amount is used to expense vehicle use as part of the ordinary and necessary cost of business use -- rather than account for actual vehicle expenses. This calculation has nothing to do with Unemployment benefits or the legal amount that an employer is required to pay an employee for the use of his or her vehicle. So, forget about the IRS calculations.

You must show the judge that your actual costs for the use of the vehicle do not relate in any way to the vehicle allowance you receive. Then, you would argue that if the vehicle allowance doesn't match with tbe vehicle useage, that what the employer is actually paying for is your personal services in driving the vehicle -- and that meets the definition of wages under Unemp. Ins. Code 926 -- which is what you must prove in order to prevail on the unemployment claim.

The downside of this scenario, is that if those expenses are converted to wages, then you will have a new tax liability on the wages. I donlt know if the liability will be more than the additional UI benefits, but if it is, then you will have won the battle and lost the war.

The alternative is to just use your W-2 wages for the unemployment issue, and then file a wage claim with DLSE, and use the same argument, but a different law. That is, under Labor Code 2802 the employer is required to reimburse you for all of your actual costs incurred within the scope of employment, and the failure to do so represents unpaid wages. If you can prove this in the DLSE action, then the employer will owe you the difference between what it's paid and your actual costs. You are also entitled to interest on the unpaid balance at 10% per year, beginning with the date that the original expense was incurred. This could be a pretty big accounting problem, but it's possible to calculate -- just messy.

Hope this helps.

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socrateaser, Lawyer
Satisfied Customers: 34826
Experience: Retired (mostly)
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