     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 13, 2020

                                2020COA29

No. 19CA0638, Keysight Tech. v. ICAO — Labor and Industry —
Colorado Employment Security Act — Premiums and Coverage
— Transfer of Experience and Assignment of Rates

     On a matter of first impression, a division of the court of

appeals considers whether the Division of Unemployment Insurance

was required to transfer the experience — essentially the claims

history for purposes of calculating a statutory employer’s

unemployment insurance premium rate — of a predecessor

employer to a successor employer that had spun off several years

earlier. The division holds that the Division of Unemployment

Insurance was not required to transfer the predecessor employer’s

experience pursuant to section 8-76-104(2)(b), C.R.S. 2019. The

division additionally holds that, under applicable Division of

Unemployment Insurance regulations, the successor employer’s
experience transfer/rate modification request was untimely. The

division, thus, affirms.
COLORADO COURT OF APPEALS                                        2020COA29


Court of Appeals No. 19CA0638
Industrial Claim Appeals Office of the State of Colorado
DD No. 46273-2018


Keysight Technologies, Inc.,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Division of
Unemployment Insurance,

Respondents.


                               ORDER AFFIRMED

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                         Fox and Berger, JJ., concur

                        Announced February 13, 2020


Akerman LLP, Brian M. Nugent, Melissa L. Cizmorris, Denver, Colorado, for
Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Philip J. Weiser, Attorney General, Krista Maher, Assistant Attorney General,
Denver, Colorado, for Respondent Division of Unemployment Insurance
¶1    This unemployment compensation tax appeal presents a

 narrow question: Is the Division of Unemployment Insurance

 (Division) required to transfer the “experience” — essentially the

 claims history for purposes of calculating a statutory employer’s

 unemployment compensation insurance premium rate — of a

 predecessor employer, Agilent Technologies, to a successor

 employer, the petitioner, Keysight Technologies, Inc., which had

 been spun off from Agilent several years earlier?

¶2    The Industrial Claim Appeals Office (Panel) concluded that

 several statutory provisions, including, as pertinent here, section

 8-76-104(2)(b), C.R.S. 2019, do not require transferring Agilent’s

 experience to Keysight. We agree with the Panel’s construction of

 the statute. We also conclude that, under applicable Division

 regulations, Keysight’s experience transfer/rate modification

 request was untimely. Consequently, we affirm the Panel’s order.

                            I. Background

¶3    Keysight was created and spun off from Agilent in 2014.

 Keysight, which is wholly owned by Agilent, was not an active

 business before the spinoff. Keysight acquired 75% of Agilent’s

 Colorado employees and half of Agilent’s infrastructure, and became

                                   1
 a Colorado statutory employer. Keysight applied for its own

 Colorado unemployment compensation insurance account. The

 Division notified Keysight of its account number and premium rate

 in October 2014.

¶4    More than three years later, in 2018, Keysight asked the

 Division to transfer Agilent’s experience to Keysight and “revise

 Keysight’s unemployment tax rates starting on its liability date

 forward.” (A statutory employer’s unemployment compensation tax

 rate is based on a number of factors, including the unemployment

 compensation benefit payments made to its former employees over

 the twelve-month period before the “computation date.” § 8-76-

 102.5(3), C.R.S. 2019.)

¶5    The Division denied Keysight’s request. After a series of

 appeals, hearing officer decisions, and Panel remand orders, the

 hearing officer entered a decision addressing whether certain

 subsections of section 8-76-104 authorize the transfer of Agilent’s

 experience to Keysight.

¶6    The hearing officer concluded that section 8-76-104(3), which

 addresses an employer’s transfer of a “clearly segregable unit” of its

 business to a successor, does not apply because Keysight “was not

                                   2
 a segregable unit” of Agilent. (The hearing officer further concluded

 that, because section 8-76-104(3) does not apply, the sixty-day

 statutory time limit for applications to transfer unemployment

 compensation experience under this subsection also does not apply.

 See § 8-76-104(3)(g).)

¶7    The hearing officer further concluded that section

 8-76-104(1)(a), which addresses entities that become employers by

 acquiring “all of the organization, trade, or business or substantially

 all of the assets of one or more employers,” does not apply because

 Keysight had acquired 75% of Agilent’s Colorado employees and

 only half of its infrastructure.

¶8    The hearing officer concluded, however, that section

 8-76-104(2)(b) applies. That subsection addresses an employer’s

 transfer of all or part of its trade or business to another employer

 where there is substantially common ownership, management, or

 control of the two employers immediately following the transfer.

 The hearing officer determined that the Division must transfer

 Agilent’s experience to Keysight and recalculate Keysight’s premium

 rate “made effective immediately upon the date of the transfer of the

 trade or business” from Agilent.

                                    3
¶9     The Panel affirmed in part and reversed in part. The Panel

  upheld the hearing officer’s determination that subsections (1) and

  (3) of section 8-76-104 do not apply to allow transfer of Agilent’s

  experience to Keysight. However, contrary to the hearing officer’s

  decision, the Panel also concluded that subsection (2)(b) does not

  apply. Specifically, it concluded that section 8-76-104(2), including

  subsection (2)(b), only addresses situations in which the

  successor/transferee employer was already a statutory employer

  before it acquired all or part of the predecessor/transferor

  employer’s trade or business. Because Keysight did not exist before

  the transfer from Agilent, the Panel concluded that subsection (2)(b)

  does not apply and that Keysight does “not qualify for a transfer of

  experience under this section.”

                              II. Discussion

                        A. Section 8-76-104(2)(b)

¶ 10   Keysight contends that the Panel incorrectly interpreted

  section 8-76-104(2)(b) as applying only when the successor

  employer was an existing statutory employer before the trade or

  business was transferred to it. We perceive no error.



                                     4
¶ 11   When construing statutes, we seek to give effect to the General

  Assembly’s intent. Colo. Med. Bd. v. McLaughlin, 2019 CO 93, ¶ 22,

  451 P.3d 841, 845. We read words and phrases in context,

  according them their plain and ordinary meanings. Id.; see also

  Rooftop Restoration, Inc. v. Am. Family Mut. Ins. Co., 2018 CO 44,

  ¶ 12, 418 P.3d 1173, 1176. If the language is clear, we apply it as

  written and need not resort to other tools of statutory

  interpretation. Colo. Med. Bd., ¶ 22, 451 P.3d at 845.

¶ 12   “A ‘cardinal principle of statutory construction’ is that no

  clause, sentence, or word is ‘superfluous, void, or insignificant.’”

  Falcon Broadband, Inc. v. Banning Lewis Ranch Metro. Dist. No. 1,

  2018 COA 92, ¶ 31, ___ P.3d ___, ___ (quoting TRW Inc. v. Andrews,

  534 U.S. 19, 31 (2001)). “Statutory interpretation presents a

  question of law that we review de novo.” Colo. Med. Bd., ¶ 22, 451

  P.3d at 845.

¶ 13   Section 8-76-104(2)(b) provides, in relevant part, as follows:

             If an employer transfers all or a portion of its
             trade or business to another employer and, at
             the time of the transfer, there is substantially
             common ownership, management, or control of
             the two employers, the unemployment
             experience attributable to the predecessor
             employer shall be transferred to the successor

                                     5
            employer. The rates of both employers shall be
            recalculated and made effective immediately
            upon the date of the transfer of the trade or
            business.

  (Emphasis added.)

¶ 14   The Division argues, and we agree, that subsection (2)(b)’s

  language requiring that the premium rate of the successor employer

  be “recalculated” necessarily contemplates that the successor

  employer had a Division-calculated premium rate before the

  transfer. Importantly, the word “recalculate” means “to calculate or

  estimate again.” Webster’s Third New International Dictionary 1893

  (2002). And having a pre-existing Division-calculated premium

  rate, in turn, contemplates that the successor employer was already

  a statutory employer. See generally § 8-76-102.5 (setting forth the

  methods and procedures for calculating employer premium rates).

¶ 15   Keysight relies on section 8-76-104(2)(a), which addresses

  transfers between employers where “there is no substantial

  common ownership, management, or control of the two employers.”

  Keysight specifically points to this subsection’s language, stating

  that it applies “if the successor employer was an employer . . . prior

  to the date of acquisition.” Keysight argues that, because


                                    6
  subsection (2)(b) does not contain similar language, it does not

  require that the successor employer was a pre-existing statutory

  employer.

¶ 16   The Panel concluded, however, that when subsections (2)(a)

  and (2)(b) are read together, both address “situations where an

  employer transfers all or a portion of its trade or business to

  another already existing employer,” and the difference in the two

  subsections’ applicability turns merely on “whether there is

  substantial common ownership between the two employers.”

¶ 17   We acknowledge that subsection (2) is not a model of clarity.

  Even so, reading subsections (2)(a) and (2)(b) together, and

  considering subsection (2)(b)’s requirement that the premium rate

  of the successor employer be “recalculated,” we perceive no error in

  the Panel’s conclusion that subsection (2)(b), like subsection (2)(a),

  addresses circumstances where the transferee/successor employer

  was an existing employer at the time of the transfer.

¶ 18   Keysight argues that the Panel’s interpretation of subsection

  (2)(b) leads to unfair results, conflicts with the SUTA Dumping

  Prevention Act, see 42 U.S.C. § 503 (2018), and places Colorado at

  risk of losing federal funds. (“SUTA” stands for the State

                                     7
  Unemployment Tax Act. Colo. Div. of Emp’t & Training v. Accord

  Human Res., Inc., 2012 CO 15, ¶ 20 n.4, 270 P.3d 985, 990 n.4.)

  Assuming, without deciding, that these arguments are correct, we

  must still interpret the statute as written. Any modification of the

  statute required to make it “fairer” or make it better comport with

  federal law is a task for the General Assembly, not for a division of

  this court. See Jenkins v. Pan. Canal Ry. Co., 208 P.3d 238, 243-44

  (Colo. 2009) (noting that, insofar as the General Assembly made a

  mistake in reenacting a statute without considering the effect on

  another statute, “that mistake is for the General Assembly to

  remedy, not this court”); Nelson v. Indus. Claim Appeals Office, 219

  P.3d 416, 420 (Colo. App. 2009) (concluding that “the effect of [a]

  statute is a policy consideration within the province of the General

  Assembly and not this court”), aff’d sub nom. Specialty Rests. Corp.

  v. Nelson, 231 P.3d 393 (Colo. 2010).

¶ 19   Because section 8-76-104(2)(b) contemplates that the

  successor employer was an existing statutory employer before it

  acquired all or part of the predecessor employer’s trade or business,

  and because Keysight was not a statutory employer before it

  acquired part of Agilent’s trade or business, the Panel correctly

                                    8
  concluded that this subsection did not require the Division to

  transfer Agilent’s experience to Keysight and recalculate its

  premium rate.

                  B. Keysight’s Request Was Untimely

¶ 20   The Division argues that a separate basis for affirming the

  Panel’s order is that Keysight did not timely request revision of its

  premium rate through the transfer of Agilent’s experience. We

  agree.

¶ 21   Section 8-76-113(2), C.R.S. 2019, provides, in relevant part,

  that an employer wishing to protest a notice of premium rate “shall

  file a request for redetermination with the [D]ivision, in accordance

  with rules promulgated by the director of the [D]ivision.” In October

  2014, when the Division notified Keysight of its premium rate,

  Division regulations provided as follows:

             An employer who wishes to protest a notice of
             his or her premium rate shall file a written
             request for redetermination of the premium
             rate. The written request for redetermination
             must be received by the Division within twenty
             calendar days of the date the rate notice was
             issued.

  Dep’t of Labor & Emp’t Reg. 11.1.4, 7 Code Colo. Regs. 1101-2

  (2014); see Westfall v. Town of Hugo, 851 P.2d 299, 303 (Colo. App.

                                     9
  1993) (appellate court may properly take judicial notice of state

  administrative regulations).

¶ 22   Keysight does not argue that Regulation 11.1.4’s twenty-day

  time limit did not apply to its request. The record shows that

  Keysight apparently filed the request because it believed the

  Division had assigned it an erroneous tax rate. Indeed, at one of

  the hearings, a Keysight witness testified that Keysight requested

  the experience transfer when it discovered that the Division had

  allegedly “assigned an incorrect tax rate.”

¶ 23   Keysight instead argues that the Division waived any

  timeliness challenge under Regulation 11.1.4 because it did not

  raise the argument during the administrative proceedings. But an

  appellee may defend the underlying judgment or ruling on any

  ground supported by the record, so long as the appellee’s rights are

  not thereby increased. See Farmers Grp., Inc. v. Williams, 805 P.2d

  419, 428 (Colo. 1991); Regency Realty Inv’rs, LLC v. Cleary Fire

  Prot., Inc., 260 P.3d 1, 7 (Colo. App. 2009); Olsen & Brown v. City of

  Englewood, 867 P.2d 96, 99 (Colo. App. 1993), aff’d, 889 P.2d 673

  (Colo. 1995).



                                    10
¶ 24   The record shows that Keysight waited more than three years

  to request the change in its premium rate, well beyond Regulation

  11.1.4’s twenty-day deadline. Consequently, we agree with the

  Division that Keysight’s untimely request provides a separate basis

  for upholding the Panel’s ruling. See Stevenson v. Indus. Comm’n,

  705 P.2d 1020, 1021 (Colo. App. 1985) (affirming disqualification

  from benefits under alternative statutory subsection on which Panel

  did not rely).

                            III. Conclusion

¶ 25   The Panel’s order is affirmed.

       JUDGE FOX and JUDGE BERGER concur.




                                   11
