OHIO BELL TELEPHONE COMPANY, Plaintiff-appellant

vs.
OHIO BUREAU OF EMPLOYMENT SERVICES, Defendant-appellee
 NO. 73547
 COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
 1998 Ohio App. LEXIS 5078
 October 29, 1998, Date of Announcement of Decision

CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas. Case No. CV-334135.
 
COUNSEL
For Plaintiff-Appellant: THOMAS A. LINTON, ESQ.,Cleveland,Ohio.
ForDefendant-AppelleeOhioBureau of Empl.Services: CHARLETTE BUNDY, ESQ., ASST. ATTORNEY GENERAL,Cleveland,Ohio.
For Patricia A. Dettling: PETER H. WEINBERGER, ESQ., SPANGENBERG, SHIBLEY, TRACI, LANCIONE, & LIBER,Cleveland,Ohio.
 
JUDGES
ANN DYKE, JUDGE. PORTER, P.J., AND MCMONAGLE, J., CONCUR.
 
AUTHOR: DYKE
 
OPINION
JOURNAL ENTRY AND OPINION
DYKE, J.:
 
Appellant, Ohio Bell Telephone Co., is appealing the trial court's affirmance of the decision of the Ohio Unemployment Compensation Review Commission. For the following reasons, we affirm.
 
The claimant, Patricia Dettling, worked for Ohio Bell fromJuly 13, 1970toOctober 4, 1996. Dettling's job was relocated toChicago. She was paid $ 27,200 in severance pay. Dettling had vested rights in an employer funded pension fund. She elected a lump sum pension payment of $ 258,897.34, instead of periodic payments. The lump sum was deposited into an IRA. No withdrawals have been made from the IRA. Dettling was 53 years old when her employment was terminated.
 
The Review Commission denied benefits for the week endingOctober 12, 1996, because the severance pay exceeded the weekly unemployment benefit. The Review Commission found that the pension should not be offset against the unemployment benefits. This decision became the law of the case concerning future benefits. See Hawley v. Ritley (1988), 35OhioSt.3d 157,160, 519 N.E.2d 390, New Winchester Gardens Ltd. v.FranklinCountyBd.of Revision (1997), 80OhioSt.3d 36, 41, 684 N.E.2d 312.
 
Appellant's sole assignment of error states:
THE ADMINISTRATOR AND THE BOARD OF REVIEW ERRED IN FAILING TO COMPLY WITH OHIO REV. CODE § 4141.312(A) BY OFFSETTING AGAINST UNEMPLOYMENT COMPENSATION BENEFITS OTHERWISE PAYABLE THE PRO-RATA WEEKLY AMOUNT OF THE $ 259,471.94 PAID TO APPELLEE DETTLING UPON HER SEPARATION AS THE PRESENT VALUE OF HER LIFE ANNUITY PENSION.
 
Ohio Bell contends that R.C. 4141.312 mandates that Dettling's unemployment benefits be offset by the pro-rata weekly amount of her pension. This section states:
*** to the extent that the following provisions are required as a condition for full tax credit against the tax imposed by the "Federal Unemployment Tax Act of 1976" *** then the following conditions shall apply:
 
(A) The amount of benefits payable to a claimant for any week with respect to which the claimant is receiving a governmental or other pension, retirement or retired pay, annuity or any other similar periodic payment which is based on the previous work of the individual, shall to the extent required by such federal act, be reduced by an amount equal to the amount of the pension *** which is reasonably attributable to that week. (Emphasis added.)
 
R.C. 4141.312. The Review Commission found that Dettling did not "receive" the pension. The Commission based its decision upon Ohio Adm. Code 4141-30-12, which provides:
 
(B) Payments, interest, and other distributions under pensions, retirement plans, and annuities will not be deemed to have been received by the claimant with respect to a week of unemployment if ***
 
(1) the claimant had a right to defer receipt of payments, interest and other distributions under the pension plan with respect to the week; and
 
(2) The claimant did not receive payments, interest, or other distributions under the plan with respect to the week; and
 
(3) The claimant elected, within sixty days after the initial distribution under the plan to transfer or roll over the entire pension payment, interest or distribution to an individual retirement account . . .
 
(C) Payments, interest, and other distributions under pensions, retirement plans, and annuities that are transferred or rolled over, as provided in paragraph (B) of this rule shall not reduce the benefits payable to a claimant effective with weeks after the date of the transfer or roll over, if such payments, interest, or distributions are transferred or rolled over into . . .:
 
(1) Individual retirement accounts . . .
 
Appellant contends that Ohio Adm.Code 4141-30-12 does not comply with federal or state law. Section 3304(a)(15), Title 26, U.S. Code states:
 
The amount of compensation payable to an individual ... which begins in a period with respect to which such individual is receiving a ... pension ... or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension ... which is reasonable attributable to such week. . .
 
(Emphasis added.)
 
The wording of the federal and theOhiostatutes do not clearly mandate that lump sum pensions rolled over into an IRA must be offset. Both statutes use the term "receiving" a pension or "similar periodic payment." The term "receiving" is ambiguous and may mean constructive receipt or actual receipt of money The reference to "similar periodic payments" implies that lump sums are not required to be offset. The phrase "reasonably attributable to such week" does not necessarily mean that a lump sum must be allocated over the weeks and offset against compensation.
 
An Unemployment Program Letter (UIPL) issued by the Secretary of Labor states that each state may decide whether lump sum pension payouts should be offset against unemployment compensation. UIPL No. 22-87. The Department of Labor informs the states of the minimum federal requirements via the UIPLs. See Gleason v.OhioBureau of Employment Services (1985), 17OhioSt.3d 107,108, 478 N.E.2d 225. UIPL No. 7-81 did not specifically reach the issue and in any case, it was superseded by UIPL 22-87. The issue at hand was also never reached in Cabais v. Egger (D.C.C. 1981), 527 F. Supp. 498. Appellant submits no authority demonstrating that federal law mandates that lump sum Pensions rolled into IRAs must be offset.
 
Some states have held that a lump sum pension distribution rolled over into an IRA must be offset against unemployment compensation. See Lincoln National Bank v. Review Board (Ind.App. 1983), 446 N.E.2d 1337,AlabamaDept. of Ins. Rels.v. Brown (Ala.Civ.App. 1996), 678 So. 2d 785. These out-of-state decisions are based upon the language of the state statutes in question, and do not hold that federal law mandates this result. Other states have held that a lump sum pension distribution rolled over into an IRA should not be offset against unemployment compensation. See Redin v. Empire Oldsmobile Inc. (Col.App. 1987), 746 P.2d 52, Johnson v. Dept. of Employment Services (1989), 112Wash.2d 172, 769 P.2d 305. Thus, the states are free to decide whether to offset the rolled over pension.
 
Ohiocases have held that when a person is actually receiving money from their pension, the pension must be offset. Gleason v. Bur. of Employment Services (1985), 17OhioSt.3d 107,478 N.E.2d 225;Independencev.Ventura(1996), 113OhioApp.3d 661, 681 N.E.2d 1352. There is noOhiocase law holding that a lump sum pension placed in an IRA must be deducted from unemployment compensation.
 
Appellant argues that failing to deduct the pension would violate the purpose of the unemployment compensation laws. The purpose is to provide subsistence for the involuntarily unemployed. SeeIrvinev. Unemployment Compensation Bd. of Review (1985), 19OhioSt.3d 15,17, 482 N.E.2d 587. Ohio Bell asserts that a person with access to a pension fund does not need the subsistence payments from the government. There is also a public policy that the involuntarily unemployed should not be forced to deplete their retirement savings before retirement age. See Redin v. Empire Oldsmobile Inc. (Col.App. 1987), 746 P.2d 52. By promulgating Ohio Adm.Code 4141-30-12, the Ohio Bureau of Employment Services has chosen to further the public policy of protecting employee pensions. No federal or state law prohibits the adoption of such a policy.
 
Accordingly, appellant's assignment of error is overruled.
 
The decision of the trial court is affirmed. It is ordered that appellee recover of appellant its costs herein taxed.
 
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing theCommon Pleas Courtto carry this judgment into execution.
 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
 
PORTER, P.J., AND
MCMONAGLE, J., CONCUR.
ANN DYKE
JUDGE
 
N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1).
 
DISPOSITION
 
JUDGMENT: AFFIRMED.