(1972) , 61 Op. Att'y Gen. 18 ( 1972 )


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  • EUGENE I. LEHRMANN, State Director, Board of Vocational,Technical Adult Education

    On November 18, 1971, I advised you that the Vocational, Technical Adult Education districts probably will be included within the definition of "institution of higher education" as *Page 19 provided by new sec. 108.02 (27), Stats., subject to policy decisions and determinations by the Department of Industry, Labor and Human Relations. Section 108.02 (27), Stats., is nearly a carbon copy of the definition of institution of higher education found in 26 U.S.C.A. sec. 3309 (d), a new section of the Unemployment Compensation Act.

    By letter dated December 29, 1971, you have asked the same question in a different way — i.e., whether Vocational, Technical Adult Education districts are "instrumentalities" of the state subject to the provisions of 26 U.S.C.A. sec. 3309 (a). The answer is again in the affirmative. 26 U.S.C.A. sec. 3309 (a) provides in part as follows:

    "(a) State law requirements.* * * "(1) except as otherwise provided in subsections (b) and (c), the services to which this paragraph applies are — "* * *

    "(b) service performed in the employ of the State, or any instrumentality of the State or of the State and one or more other States, for a hospital or institution of higher education located in the State, if such service is excluded from the term``employment' solely by reason of paragraph (7) of section 3306(c) * * *" (Emphasis supplied)

    26 U.S.C.A. sec 3306 (c) (7), provides in part as follows:

    "(c) Employment. — For purposes of this chapter, the term ``employment' means any service performed * * * except —

    "(7) service performed in the employ of a State, or any political subdivision thereof, or any instrumentality of any one or more of the foregoing which is wholly owned by one or more States or political subdivisions * * *"

    The plain language of the statute indicates that a state "instrumentality" previously excepted from the Unemployment Compensation Act solely by reason of 26 U.S.C.A. sec. 3306 (c) (7), now is within the provisions of the Act. This interpretation is supported further by the fact that 26 U.S.C.A. sec. 3309 (b) and (c) provides a new list of exceptions from the provisions of the Act which does not include institutions of higher education. *Page 20

    Another approach to the same conclusion is apparent. The term "instrumentality" as used in 26 U.S.C.A. secs. 3306 (c) (7) and3309, is generic in nature. A cursory examination of ch. 38, Stats., entitled Special Schools, indicates that a Vocational, Technical Adult Education district falls within the general reference to "instrumentality" of the state.

    Thus, institutions of higher education are included within the provisions of the Unemployment Compensation Act by reason of26 U.S.C.A. sec. 3309 (a) and (d).

    RWW:JPA

Document Info

Citation Numbers: 61 Op. Att'y Gen. 18

Judges: ROBERT W. WARREN, Attorney General

Filed Date: 1/20/1972

Precedential Status: Precedential

Modified Date: 7/6/2016