In re the Claim of Dolcater

Jul 17, 2003
Versions:307 A.D.2d 583
762 N.Y.S.2d 312
2003 N.Y. App. Div. LEXIS 8193

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 6, 2002, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

At the time claimant applied for unemployment insurance benefits in December 2001, she was president and sole owner of a subchapter S corporation. She testified that she continued to receive mail for the corporation at her home although the corporation had been inactive for several months and the checking account had been closed in May 2001. Claimant was *584in the process of dissolving the corporation and had twice met with an accounting firm for the purpose of completing corporate tax returns. She also engaged a tax service to assist in preparing a final accounting for the corporation and payment of an outstanding corporate tax liability. Claimant testified that she intended to offset the corporate losses against her personal income tax.

A claimant who is a principal in a corporation is not totally unemployed even when the business is not actively functioning and the claimant’s participation is minimal (see Matter of Sichel [Commissioner of Labor], 301 AD2d 771 [2003]). Benefits may be precluded as a result of any financial gain from the continuing existence of the corporation (see Matter of Bundschuh [Commissioner of Labor], 288 AD2d 745, 746 [2001]). Although claimant earned no income, she gained financially by her deduction of corporate expenses on her personal income tax (see Matter of Gorman [Commissioner of Labor], 288 AD2d 597 [2001]). Under the circumstances presented here, substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was not totally unemployed.

Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.