(1) A person who regularly and customarily performs services at locations other than the person's own fixed business location and who has not elected to be personally bound by the provisions of workers' compensation plan 1, 2, or 3, shall apply for an independent contractor exemption certificate (ICEC). The applicant for an ICEC shall submit:

(a) a completed ICEC application affidavit on a department-approved form bearing the applicant's original notarized signature. The applicant shall swear or affirm under oath that the statements contained in the form and attached documentation are true and accurate to the best of the applicant's knowledge. The application affidavit must include, but is not limited to:

(i) applicant's name and mailing address;

(ii) applicant's social security number;

(iii) list identifying each trade, occupation, profession, or business for which the applicant seeks an ICEC, including:

(A) business name;

(B) business structure (entity type);

(C) business mailing address and business physical address; and

(D) business telephone number;

(iv) supporting documentation for applicant's independent contractor status in each trade, occupation, profession, or business for which applicant seeks exemption from the Workers' Compensation Act, as set forth by (2);

(b) a fee, as required by ARM 24.35.121; and

(c) an executed, notarized waiver conforming to the requirements of (3).

(2) The applicant shall submit supporting documentation to prove applicant's qualification for an ICEC. The department has the discretion to assess the reliability of the documentation and award points for each item of proof as outlined by this rule. Each item of documentation submitted may count toward points in more than one category. No more than two items of proof may be submitted under each category. To qualify for an ICEC, an applicant's documentation must be awarded a minimum of 15 points by the department for each independently established trade, occupation, profession, or business listed on the ICEC application.

(a) The department may award up to ten points for proof that the applicant has current workers' compensation, unemployment insurance, and Department of Revenue accounts for employees in each independently established trade, occupation, profession, or business. The department may award up to six points for proof of two insurance policies or accounts and may award up to three points for proof of one insurance policy or account.

(b) The department may award up to six points for each of the following proofs for each independently established trade, occupation, profession, or business:

(i) contract or memo of understanding that demonstrates applicant's independent contractor status. If the applicant can end a contract at any time without incurring any liability for failing to complete the project that is the subject of the contract, the department cannot award points for the contract under this rule. Separate contracts with different hiring agents may qualify for a maximum of six points. Each contract must include:

(A) payment based on a completed project;

(B) beginning and ending dates of the contract;

(C) liability for failure to complete the project;

(D) identification of who provides the materials and supplies;

(E) signatures by both parties; and

(F) defined body of work, complete project, or end result;

(ii) signed and dated list of equipment and tools owned or controlled by the applicant with approximate values. The equipment or tool list may be documented by a rental or lease agreement, county documents verifying the business equipment tax paid, or other means;

(iii) commercial general liability insurance policy or bonding;

(iv) most recent business tax forms filed within past two years;

(v) IRS Form 1099s (miscellaneous income) from multiple hiring agents or two quarterly self-employment tax payments (IRS form 1040ES) within past two years; or

(vi) trucking company lease agreement.

(c) The department may award up to three points for each of the following proofs for each independently established trade, occupation, profession, or business:

(i) two or more bids, estimates, proposals, or completed billing invoices issued by the business;

(ii) partnership or limited liability partnership agreement signed and dated by all partners that demonstrates:

(A) intent to form the partnership;

(B) contribution by all partners;

(C) a proprietary interest and right of control by the applicant; and

(D) the sharing of profit/loss;

(iii) application for or current business license or building permit;

(iv) certificate of registration for the business entity issued by the Montana secretary of state;

(v) articles of incorporation, annual report, articles of organization, or other documentation that verifies the applicant is an officer in a corporation or a manager in a manager-managed limited liability company with a minimum of 20 percent ownership held by the applicant;

(vi) proof of ownership, rent, or lease of business location or proof of IRS filing for use of home as a business (IRS Form 8829);

(vii) educational certification for unlicensed occupations or current professional license relevant to the trade, occupation, or profession for which the applicant seeks the ICEC;

(viii) membership in a relevant professional association or affiliation;

(ix) current motor carrier (MC) authority number in applicant's personal or business name;

(x) business bank account; or

(xi) copies of advertising in a newspaper, phone book, on the internet, or other venue.

(d) The department may award up to one-and-one-half points for each of the following proofs for each independently established trade, occupation, profession, or business:

(i) federal employer identification number (EIN);

(ii) Dunn and Bradstreet number;

(iii) telephone or utility bill(s) in the business name;

(iv) credit card(s) or purchase account(s) in the business name;

(v) preprinted business invoices, cards, or brochures;

(vi) proof of order(s) for printed hats, shirts, or other promotional items for the business;

(vii) proof of business advertising using a vehicle sign, yard sign, bulletin boards, or posted flyers;

(viii) invoices billed to the business name;

(ix) vehicle registration(s) in the business name; or

(x) international fuel tax account number (IFTA) in applicant's personal or business name.

(e) The applicant may submit any other supporting documentation. The department has discretion to assess the reliability of and determine the point value of any documentation not listed in this rule.

(3) To execute a waiver, the applicant shall complete the department-approved waiver form. The waiver form must be signed by the applicant and notarized. The applicant shall represent on the waiver form that:

(a) the applicant is engaged in each independently established trade, occupation, profession, or business that is specifically identified on the application form;

(b) the applicant is responsible for all taxes related to the applicant's work as an independent contractor;

(c) the applicant controls the details of how services are performed, both under contract and in fact, and the hiring agent retains only the control necessary to ensure the bargained for end result; and

(d) the applicant understands and agrees that if the ICEC is granted, the applicant is not eligible for and waives the right to workers' compensation or occupational disease benefits for an injury or occupational disease related to work performed as an independent contractor in each independently established trade, occupation, profession, or business for which the ICEC is granted.

(4) An ICEC issued by the department remains in effect for two years unless the department revokes or suspends the ICEC or the applicant requests in writing that the department cancel the ICEC.

(5) The department shall approve or deny an ICEC application within 30 days of receipt and notify the applicant in writing.

(6) The department shall retain an incomplete or denied application for a period of six months from the date of receipt and allow the applicant the opportunity to supplement supporting documentation or submit missing components. Upon the written request of applicant, the department shall re-evaluate an application, taking into consideration the supplemental information submitted by applicant. Incomplete applications that have not been approved within six months of receipt by the department will remain denied.