In re Perk Development Corporation

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 31, 1995, which assessed Perk Development Corporation for unemployment insurance contributions at the delinquency tax rate. Perk Development Corporation is a corporation which oper [778] ates restaurants, shopping centers, hotels and apartment complexes. Perk’s controller failed to file a payroll report for the third quarter of 1993 and, as a result, Perk was assessed unemployment insurance contributions at the delinquency tax rate pursuant to Labor Law § 581 (2) (b). Perk argues that the delinquency tax rate is not a mandatory penalty under Labor Law § 581 (2) (b) and that it should not be applied because its failure to file the subject report was not willful. We find this argument to be without merit. Contrary to Perk’s claim, the statute does not vest the Commissioner of Labor with discretion to choose not to apply the tax rates set forth in Labor Law § 581 (2) (b) upon considering an employer’s "good cause” for failure to file (see, Matter of Shaheen Paint Co. [Hartnett], 162 AD2d 888). Accordingly, regardless of Perk’s lack of knowledge of its controller’s omission, we are compelled to uphold the Board’s decision. Cardona, P. J., Mikoll, Yesawich Jr., Peters and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.