V. Tax records
- Tax Information.
Information in the possession of the Department of Revenue that discloses the particulars of the business or affairs of a taxpayer or other person is not public record. It is confidential, except that tax lists showing the names of delinquent taxpayers may be published, and taxpayer information may be presented in statistical form that does not identify particular reports or items. AS 40.25.100, AS 43.05.230.
- Tax Returns and Reports.
It is against the law for current or former officers, agents or employees of the state to divulge the amount of income or the particulars set out or disclosed in a report or return made under the state revenue code. Nothing in this section prohibits the publication of statistics so classified as to prevent the identification of particular returns or reports or the publication of delinquent lists showing the names of taxpayers who have failed to pay their taxes at the time and in the manner provided by law, together with other relevant information which in the opinion of the department may assist in the collection of delinquent taxes. AS 43.05.230.
- Taxpayer Information Disclosed in Court Proceedings.
During superior court's de novo valuation of oil pipeline system for property tax purposes, the court was not required to prevent public disclosure of Department of Revenue's exhibits and production forecasts; statute providing that confidential taxpayer information the Department used in preparing its own documents is not public record and must not be publicly disclosed, expressly did not apply to information required to be produced in court proceedings. State, Dept. of Revenue v. BP Pipelines (Alaska), Inc., 354 P.3d 1053 (Alaska 2015).
- Tax Appeals.
A 1983 Attorney General's Opinion states that when a taxpayer files a notice of appeal, the Department of Revenue hearing decision may be made public because the taxpayer is, in effect, waiving any right to confidentiality the taxpayer may have had. Also, the AG concluded that the Department can publish decisions that have not been appealed or for which confidentiality was not voluntarily waived if it establishes guidelines for publication to protect the taxpayer's identity. Absent an appeal, hearing decisions need not be published, even though they are technically orders of the Commissioner because of other statutory provisions which prohibit disclosure of the "particulars" of the business of a taxpayer except when in connection with investigations or court proceedings. Records, proceedings and decisions under this statute are confidential, except that they become public records and open to the public when the final administrative decision is issued and becomes final. AS 43.05.470(a). Upon a showing of good cause, an administrative law judge must issue a protective order requiring that specified parts of the records, proceeding or decision shall be kept confidential in a particular appeal, in which case the final administrative decision is made public after redacting by deletion or substitution of information as required by the protective order. AS 43.05.470(b). To promote consistency among legal determinations issued under AS 43.05.400 - 43.05.499, the chief administrative law judge may review and circulate among the other administrative law judges the drafts of formal decisions, decisions upon reconsideration, and other legal opinions of the other administrative law judges in the office. The drafts are confidential documents, not subject to disclosure under the public records act or under .470(a). AS 43.05.475(b).
- Oil and Gas Production Tax Credits.
To qualify for a production tax credit based on oil and gas or gas exploration, an explorer shall agree, in writing, to submit information and evidence about the claimed exploration necessary to evaluate the validity of the explorer's claim. Notwithstanding any provision of AS 38, information provided under this paragraph will be held confidential by the Department of Natural Resources—in the case of well data, until for a specified 24-month period (unless the Commissioner finds it necessary to withhold it to protect information related to valuation of unleased acreage in the vicinity, or the well is on private land and the landowner has not given permission to release the well data), and in the case of most seismic or other geophysical data, for 10 years following the completion date (except as to data acquired from private land unless the owner or lessee of that land gives permission to release data associated with that land), at which time, in either case, the Department will release the information after 30 days' public notice AS 43.55.025(f). If the Department issues a production tax credit or credit for exploration expenditures, having found that an explorer’s claimed expenditures qualified and all required data was submitted, notwithstanding other statutory provisions prohibiting disclosure of taxpayer information, the following information is not confidential: the explorer’s name, the date of the application, the location of the well or seismic exploration, the date of the department’s issuance of the certificate, and the date on which the information required to be submitted under the tax credit statute would be released. AS 43.55.025(f)(5).
- Background Information for Contractors with Access to Federal Tax Information.
Upon request of an agency, the procurement officer shall notify each contractor if a contract with the state requires access to federal tax information for performance of the contract. Each contractor with the state whose duties require access to federal tax information must submit to and pass a background investigation that includes a state and national criminal history record check, and must provide information for the background investigation. A background investigation under this section, including a state and national criminal history record check, is confidential. AS 36.30.960
- Background Information for Employees with Access to Federal Tax Information.
In connection with an initial application or as a condition of continued employment in a position with the state for which the job duties include access to federal tax information, an agency must require a prospective or current employee to provide information for a background investigation and request a state and national criminal history record check.
A background investigation under this section, including a state and national criminal history record check, is confidential. AS 39.90.210.
- Multistate Tax Compact.
Information obtained by any audit pursuant to the Multistate Tax Compact is confidential. AS 43.19.010. Fish processors engaged in selling canned salmon must semi-annually report to the Department of Revenue the prices received for the sale of canned salmon. Information in these reports and price averages calculated by the department from the information in the reports, are public information except that information that identifies or could be used to identify a particular fish processor is confidential. AS 43.80.065.
- Stranded Gas Development Act.
The Stranded Gas Development Act provides for contracts for payments in lieu of other taxes to encourage new investment to develop the state's stranded gas resources. The commissioner of revenue determines whether proposals for new investment qualify based on information and evidence submitted under this chapter. An applicant may request confidential treatment of information it provides by clearly identifying the information and the reasons supporting the request for confidential treatment. If the commissioner does not approve the request, the information is returned, the review ceases unless the returned information is deemed unnecessary. The information that is subject to the request is to be kept confidential if the applicant shows that (1) it is a trade secret or other proprietary research, development or commercial information that the applicant treats as confidential; (2) affects the applicant's competitive position; and (3) has commercial value that may be significantly diminished by public disclosure or that public disclosure is not in the long-term fiscal interests of the state. Information thus determined to be confidential is confidential only so long as is necessary to protect the competitive position of the applicant, to prevent the significant diminution of the commercial value of the information, or to protect the long-term fiscal interests of the state. The commissioner may not release information that the commissioner has previously determined to be confidential under AS 43.82.310(b) without providing the applicant notice and an opportunity to be heard. AS 43.82.310.
If the commissioner of revenue chooses to develop a contract under AS 43.82.020, the portions of the records and files of the various state and municipal agencies involved that reflect, incorporate or analyze information that is relevant to the development of the position or strategy of the commissioner of revenue, the commissioner of natural resources, or the attorney general with respect to a particular provision that may be incorporated into the contract are not public records until the commissioner of revenue gives public notice of the commissioner's preliminary findings and determination. AS 43.82.310(f). Nothing in this subsection makes a record or file of the Department of Revenue, the Department of Natural Resources, or the Department of Law a public record that otherwise would not be a public record under AS 40.25.100 - 40.25.220, affects the confidentiality of other provisions of AS 43.82.310; or abridges a privilege recognized under the laws of this state. Information that can be disclosed confidentially to other state or municipal agencies for purposes of this chapter does not become public when received by these public agencies. The confidential status of information must be maintained when copies of proposed contracts and the commissioner's preliminary finding and determination are publicly noticed, and confidential information cannot be released during the public portion of legislative committee meetings reviewing the proposed contracts and supporting data. AS 43.82.410.
In California there is a qualified privilege against discovery of tax returns. Webb v. Standard Oil Co., 49 Cal. 2d 509, 513, 319 P.2d 621 (1957); Fortunato v. Superior Court, 114 Cal. App. 4th 475, 479, 8 Cal. Rptr. 3d 82 (2003). Further, it is unlawful for the Franchise Tax Board or any other person, “who in the course of his or her employment or duty has or had access to returns to disclose” to disclose the amount of income or “any particulars (including the business affairs of a corporation) set forth or disclosed therein.” Cal. Rev. & Taxation Code §§ 19542; 19542.1 (prohibiting inspection).
Notwithstanding these laws, the Franchise Tax Board is required to make public at least twice each calendar year a list of the 500 largest tax delinquencies in excess of one hundred thousand dollars. Cal. Rev. & Taxation Code § 19195.
Separately, the CPRA exempts from disclosure “[i]nformation required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.” Gov’t Code § 6254(i).
The Act exempts records containing tax matters or tax information that is confidential under state or federal law. O.C.G.A. § 50-18-72(a)(43).
The Act does not apply to information sought under statute providing for a taxpayer to request information related to property tax assessment from county board of tax assessors. Hansen v. DeKalb Cty. Bd. of Tax Assessors, 295 Ga. 385, 761 S.E.2d 35 (2014).
Under the common law, “[t]axpayers of a municipality have a right to examine its books and records at proper times for any legitimate purpose.” Michigan City v. Marwick, 116 N.E. 434, 436 (Ind. App. 1917). However, statutes may limit the disclosure of tax records. See Ind. Code § 6-1.1-35-9 (limiting information relating to earnings, income, profits, losses, or expenditures between officials in the property tax context); id. § 6-4.1-12-12 (limiting the Department of Revenue’s disclosure of inheritance tax files); id. § 6-8.1-7-1 (limiting the Department of Revenue’s disclosure of the amount of tax paid relating to listed taxes when the information is agreed to be confidential); see also Brandenburg Indus. Serv. Co. v. Indiana Dep’t of State Revenue, 26 N.E.3d 147, 154 (holding that two pages of handwritten notes of the Department of State Revenue were not barred from disclosure under this exception because the deliberative materials exception applies to the general public rather than the litigants) (Ind. Tax Ct. 2015).
All tax returns and attachments filed with the Iowa Department of Revenue are protected by state confidentiality laws and can be used only for tax administration purposes. They can be released to other persons or agencies only as specifically allowed by law. Protest files, however, are open for public inspection unless you petition the Department, and an Administrative Law Judge or the Director of Revenue issues an order to delete identifying details of the case.
Records specifically prohibited or restricted from disclosure by federal law, state statute, or rule of Kansas Supreme Court are exempt from the KORA. K.S.A. 45-221(a)(1). This includes tax return information. Kan. Att’y Gen. Op. 1990-20; K.S.A. 79-3614.
A public agency shall delete the identifiable portions of the record and make available to the requester any remaining portions which are subject to disclosure pursuant to KORA. The agency is not required to disclose portions of records pertaining to a specific individual or such a limited group that the individual identities are reasonably ascertainable. K.S.A. 45-221(d). (May delete certain tax information and court settlements from financial statements, Kan. Att’y Gen. Op. 1983-49).
Property tax records are generally open, but many other tax records are confidential. See 11-ORD-174; see also Ky. Rev. Stat. 131.081(15) (taxpayers “shall have the right to privacy with regard to the information provided on their Kentucky tax returns and reports, including any attached information or documents.”).
Tax information is protected under Tax-General Article, § 13-202 and Tax-Property Article, § 1-301. See MacPhail v. Comptroller, 178 Md. App. 115 (2008). However, non-confidential information about the taxpayer's plans to engage in certain regulated business activities or the taxpayer's authority to collect the retail sales tax and (2) information that cannot be associated with any particular taxpayer must be disclosed to the public upon request. 71 Op. Att'y Gen. 318 (1986). Moreover, the property tax assessment appeal boards to permit any person to inspect any of their records with certain exceptions 62 Op. Att'y Gen. 712 (1977). But the State Department of Assessments and Taxation is barred from permitting inspection of a taxpayer's assessment worksheet by anyone except the taxpayer and the officers of the State and subdivision affected.
Municipal property tax records (including assessments, payments, etc.) are “government records” under OPRA. Commercial property records are also “government records” under OPRA, however, the Income and Expense Statements required to be filed by commercial property owners are confidential by statute. NJ State Income tax returns are also confidential by statute.
Confidential information provided to the tax commissioner is exempt. See, e.g., N.D.C.C. § 57-02-11.2 (records and information provided by the owner or occupant of commercial property with regard to income and expenses of the property); N.D.C.C. § 57-39.2-23 (information obtained in the enforcement of the sales tax); N.D.C.C. § 57-05-11 (information obtained during assessment of railroad property); N.D.C.C. § 57-37.1-22 (estate tax returns); N.D.C.C. § 57-38-57 (income tax returns).
Any federal tax return or return information opened to inspection or disclosed by the United States secretary of the treasury to the state tax commissioner for the administration of the tax laws is also exempt. N.D.C.C. § 57-01-14.
Except pursuant to judicial order, tax returns are confidential. Ohio Rev. Code §§ 718.13 (municipal), 5703.21 (audits), 5711.10 (submission of verified federal income tax return in lieu of listing income yielding investments), 5711.101 (financial statement or balance sheet of a business required to be filed), 5731.90 (estate taxes).
125.20(A)(2) creates and requires disclosure of tax credits granted by the State. State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992)(although application for approval of tax-abatement project was a public record, materials related to and submitted with the applications should have been reviewed in camera to determine if they were subject to an exemption).
Tax maps are public records. See State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 301-302, 986 N.E.2d 931, 935, 2013-Ohio-761, ¶ 16 (requester permitted to “input search terms” into County’s electronic database containing tax maps and aerial photographs and print requested records). Records pertaining to appraisals used to determine property tax assessments are likely public records. See State ex re. Bothwell v. Montgomery County Sanitary Engineering Dept., 1999 WL 959179 (Ohio Ct. App. 1999).
The Ohio Supreme Court has applied a “judicial mental process” privilege to bar access to records of the adjudicatory deliberations of a local board of tax appeals. TBC Westlake Inc. v. Hamilton County Bd. of Revisions, 81 Ohio St. 3d 58, 689 N.E.2d 32 (1998).
Tax information is generally confidential. T.C.A. §§ 67-1-110, -703, -1702, -1704, -1705(c); 67-4-722(d)(1), -2808; 67-5-402; 67-8-109, -404. See also Coleman v. Kisber, 338 S.W. 3d. 895 (Tenn. Ct. App. 2010) (economic and community development records under the Tennessee Small Business Investment Company Credit Act, T.C.A. § 4-28-101 et seq. which relate to tax credits are confidential).
Federal law (26 U.S.C. § 6103(a)) renders tax return information confidential, including the taxpayer’s identity, the nature, source, or amount of income, payments, taxes withheld, and other data “received by, recorded by, prepared by, furnished to, or collected by the Treasury Department. Tex. Att’y Gen. OR2018-00469.
The Texas Tax Code contains confidentiality provisions as well, making “all ‘information secured, derived, or obtained by the comptroller’” from an examination of a taxpayer’s records and business affairs confidential. A & T Consultants, Inc., 904 S.W.2d at 675.
State tax returns are to be kept confidential, except by court order or in other official proceedings. For all taxes except individual income tax and corporate franchise tax, the commission may, by rule, provide the identity and other information of taxpayers who failed to file tax returns or to pay the tax due. See Utah Code § 59-1-403.
Under the Multistate Tax Compact, information obtained in an audit is to be kept confidential and available only to party states, their subdivisions, or the United States. See id. § 59-1-801.5(Art. VIII, sec. 6).
Property tax audit reports are confidential, although the statistical information based on the audits may be public. See id. § 59-2-705(1). Sales and Use tax returns and other information are confidential under Utah Code section 59-1-403. See id. § 59-12-109.
“[T]ax return[s] and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business” are exempt from disclosure. 1 V.S.A. § 317(c)(6).
Tax returns, and information that would result in unfair competitive disadvantage to the taxpayer or violate the taxpayer’s right to privacy, are generally exempt. RCW 42.56.230(4). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050; Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Credit/debit card numbers and other financial account numbers are also exempt. RCW 42.56.230(4), (5). Personal information contained in documents used to apply for a driver’s license or identicard is exempt under RCW 42.56.230(6).
Except when required as part of a Tax Commissioner investigation or court proceeding in which the Commissioner is a party, it is unlawful for any state, county, municipal, or government subdivision officer, employee or agent to divulge any information in, or relating to, an individual, firm or corporate tax return. Similarly, it is unlawful to disclose any information in, or relating to, any tax report, investigation, taxpayer return, audit, declaration, or investigation under the state tax code concerning the personal affairs of any individual or the business of any single firm or corporation. W. Va. Code § 11-10-5d(a).
Also subject to the above confidentiality and disclosure restrictions are tax returns and return information obtained from the Tax Commissioner as part of an exchange of information agreement or pursuant to subsections (d) through (n) of West Virginia Code section 11-10-5d that is in the possession of any official officer, employee, agent or representative of a local or municipal government entity.
Unlawful disclosure of such tax related information is punishable as misdemeanor and subject to a fine of not more than one thousand dollars or one-year imprisonment, or both. W. Va. Code, § 11-10-5d(c).
There are a several exceptions to the above confidentiality requirements of West Virginia Code section 11-10-5d that are relevant to the public's right of access to tax records. The Tax Commissioner may release statistics that do not allow identification of particular returns and items contained therein.
Administrative decisions or summaries thereof of the Tax Commissioner are required to be released to the public with any identifying characteristics or facts about the taxpayer omitted or modified so as to not disclose the name or identity of the taxpayer. However, if the taxpayer appeals the administrative decision to a circuit court or waives in writing his/her right to confidentiality those identifying characteristics may be disclosed to the public.
Importantly, West Virginia Code section 11-10-5d (l) provides, "if the Tax Commissioner believes that enforcement of the tax laws administered under this article will be facilitated and enhanced thereby, he or she shall disclose, upon request, the names and address of persons who:
- have a current business registration certificate;
- are licensed employment agencies;
- are licensed collection agencies;
- are licensed to sell drug paraphernalia;
- are distributors of gasoline or special fuel;
- are contractors;
- are transient vendors;
- are authorized by law to issue a sales or use tax exemption certificate;
- are required by law to collect sales or use taxes;
- have been convicted of a criminal violation of this state's tax laws.
- are foreign vendors authorized to collect use tax; or
- whose business registration certificate has been suspended or canceled or not renewed by the Tax Commissioner;
- against whom a tax lien has been recorded under section twelve of this article (including any particulars stated in the recorded lien);
- against whom criminal warrants have been issued for a criminal violation of this state's tax laws.
In Hurlbert v. Matkovich, 233 W. Va. 583, 760 S.E.2d 152 (2014), the court addressed vendor's FOIA request for Computer–Assisted Mass Appraisal (“CAMA”) files relating to county tax assessor assessment for real property. As part of the real property assessment process, the county assessor is charged with “mak[ing] out the land books” which contain the tax ticket number, taxpayer name, map, parcel, deed book/page, property description, assessed value, and tax for each parcel of property in the county.” W. Va. Code §§ 11–4–1 et seq. This information is publicly available in the county offices; county assessors transmit this information to the State Tax Department for inclusion in the department's statewide Computer–Assisted Mass Appraisal.
The court also held that in determining whether the real property tax assessment information fell within the confidentiality provisions of the state tax code, West Virginia Code § 11–1A–23, as confidential “returns and return information” exempt from disclosure or are part of the non-confidential “itemized description,” in the statute, it was necessary "to resort to our well-established canons of statutory construction." 233 W. Va. at 592, 760 S.E.2d at 161.
The Tax department also argued, "the Legislature intended to make all of the data collected and/or utilized by the assessor for property appraisal purposes confidential, with the exception of the scant description of real property in the land books." The court found that "the language of the statute belies such a position." Id. The court observed that "[i]f the entire universe of information collected by the assessor were intended by the Legislature to be confidential save the land book description, it would have been unnecessary for the Legislature to make . . . specific additional exemption[s] for burglar alarms and security systems as such information would fall within the broad-sweeping confidentiality urged by respondents. "[A] cardinal rule of statutory construction, said the court, "is that significance and effect must, if possible, be given to every section, clause, word or part of the statute,” concluding that the CAMA data is not categorically exempted from disclosure pursuant to West Virginia Code § 11–1A–23(a). 233 W. Va. at 593, 760 S.E.2d at 162. Thus, the court held that the circuit court had erred in ruling that the CAMA data was subject to a wholesale exemption from disclosure because it includes some of these more narrowly defined exemptions. To the extent that the information requested falls within specific tax code exemptions, it may not be disclosed in response to a FOIA request. Id.
The court also rejected the Tax Departments argument that the CAMA data is categorically exempt from disclosure under FOIA’s exemption for information of a personal nature. W. Va. Code § 29B–1–4[a](2). The lower court had held all of the CAMA data exempt "based upon a few generally referenced categories of “personal” information presumably contained within the CAMA files and the inclusion of “return” information and burglar alarms/security systems." On remand, the Supreme Court directed the trial court to require submission of a Vaughn index containing the specific exemptions claimed by respondents as to the specific fields of data in the CAMA files, whereupon the circuit court is to evaluate the specific categories of information sought in accordance with the exemptions delineated in West Virginia Code sections 11–1A–23(a) and 29B–1–4.
Information provided to the secretary of revenue or to an employee in the office of the secretary. is exempt from disclosure under FOIA. W. Va. Code § 11B-1-6 (a). Moreover, information that by statute is confidential in the possession of any division, agency, board, commission or office of the department of revenue may be disclosed to the secretary, or an employee in the office of the secretary. That information is exempt under FOIA. W. Va. Code § 11B-1-6 (b).