0 ’ STATE BOARD OF EQUALIZATION

STATE OF CALIFORNIA
’
0
STATE BOARD
1020
P.O.
OF EQUALIZATION
N STREET, SACRAMENTO,
BOX 1799, SACRAMENTO,
(916)
CALIFORNIA
CALIFORNIA
WILLIAM
M. BENNETT
Fin) Oistrtct Kmtfldd
95808)
Seead
ERNEST
445-4982
CONWAY
htrkt,
H. COLLIS
Los An~cler
J. ORONENBURG.
JR.
San olego
lhwd Oirlnct,
Fourth
RICHARD NMNS
Oirlr~ct, Parrrdma
KENNETH
CORY
Controller.
sacramenlo
September l-2, 1985
.
DOUGLAS
Emcutive
0. BELL
secr.¶tmy
No. 85/93
-
TO COUNTY ASSESSORS:
ATTORNEY GENERAL OPINION NO. 84-1104
For your information
we are forwarding
a copy of Attorney
General
Opinion No. 84-1104,
dated July 30, 1985, and pertaining
to
compliance
with administrative
summons issued by the Internal
Revenue Service.
Sincerely,
Verne Walton,
Chief
Assessment Standards
Division
VW:sk
Enclosure
c
as
.
--
- --_-
-__. -_
.
.
OFFICE
.
.
OF THE ATTORNEY
State
of California
l
JOHN K.
Attorney
GENERAL
VAN DE KAMP
General
-----------------------------..
..
0 P I'N I ON
l
.
of
JOHN K.
Attorney
VAN DE KAMP
General
ANTHONY S.
Deputy
Attorney
DA VIGO
General
:
.
;
:
:
:
:
..
THE
HONORABLE
JAMES
B.
COUNSEL,
COUNTY OF SAN LUIS OBISPO,
on the
following
question:
No.
JULY
84-1104
30,
1985
LINDHOLM,
has requested
JR.,
an
COUNTY
opinion
the
county
assessor,
pursuant
to
an
Must
admihistrative
summons
issued
by
the
Internal
Revenue
Service
under
title
26 of
the
United
States
Code,
section
7602,
either
(a)
produce
or
(b)
proouce
only
in
compliance
information
with
a
specific
court
order,
contained
in
property
tax
records
made confidential
under
sections
408,
451,
and 481 of the
Revenue
and Taxation
Code?
CONCLUSION
The'
county
assessor
is
required,
pursuant
to
an
administrative
summons
the
Revenue
issued
by
Internal
Service
under
title
26 of
the
United
States
Code,
section
contained
7602,
information
in
property
tax
to
produce
records
made confidential
under
sections
408,
451,
or 481 of
the
Revenue
and Taxation
Code,
where
the
federal
interest
in
disclosure
outweighs
the
state
interest
in confidentiality,
but
is
prohibited
from
producing
such
information
where
the
Such
information
must
be produced
state
interest
prevails.
in any case
in compliance
with
a specific
court
order,
ANALYSIS
Title
subdivision
"For
correctness
none
has
(a),
26,
United
provides
as
the
of
been
States
follows:
Code,
section
purpose
of
ascertaining
any
return,
making
a return
made,
determining
the
liability
1.
7602,
the
where
of
84-1104
any
person
for
anv
internal
revenue
tax
or
the
liability
at
law
0: in equity
of any transferee
or
fiduciary
of
anv
oerson
in respect
of any internal
revenue
tax,
or-collecting
any'such
liabjlity,
the
his
delegate
G authorized-other
Such
any books,
papers,
“(11
To examine
data
whl'ch
*may be relevant
or
inquwy;
records,
material
or
to
"(2)
To summon
the
person
liable
for
tax
or
TZ
perform
or
any
requ’i red
Lhe
act,
officer
or
person,
or
any
person
emdloyee
of
-such
having
or
care
of
books
of
account
possession,
custody,
containing
entries
relating
to the
business
of the
for
tax
or
required
to
perform
the
person
liable
person
the
Secretary
or
his
act, or any other
deem
Eper,
F
a-jj?Jig
DefoZ
zz
delegate
";;;5y
Secretary
Thinlegate
at a time
and place
named
in
the
iummons,
and to produce
such
books,
papers,
and to give
such
testimony,
or other - data,records,
as may be relevant
or material
to such
under
oatFa,
inqu.iry;
and
"(3)
concerned,
material
To
to
take
such
under
oath,
such
inquiry."
testimony
of
the
relevant
as
may
be
(Emphasis
added.)
person
or
to
the
Commissioner
of
Internal
Revenue
Such
power
granted
is
fnauisitorial
in
nature
and
has been
analogized
to that
(United
States
v. Cortese
(3 Cir.
vested'
in
a grand
jury.
1976)
540 F,Za
640;
Falsonemr?taten?-nr.
1953)
Unlike
the
205
F.2a
734,
737,
cert..
aen.
WTiTr')
the
tax
investigation
is reported
to
report
of a grand
jury,
EhE! commissioner
rather
than
to a court
(Falsone
v. United
for
-E?iTGKl
purposes
and
may not
be used
States,
-1,
exceut
where
d Darallel
civil
investigatory
purpose
exists
(United II_--States
;.
Civella
(8
Cir.
1981)
-666
F.2d
1122;
mTationa7
Bank of Atlanta
(5
Cir.
Uni tea Stafes
1980')
628 F.2d
8vjl).
must,
information
subject
Taxation
said
is
whether
a county
assessor
dnitial
inquiry
to
such
an administrative
summons,
produce
property
tax
records
which
are
contained
in
the
Revenue
and
t173e
following
provisions
of
to
Code:k/
The
pursuant
Herednafter,
1,
code.
unidentified
section
2.
references
are
to
84-1104
e
; .
.
.
nSec.
.
408:
.
otherwise
"(a)
Except
provided
in
subdivisions
Eb)
zid
(c)
any
information
and
records
in
office
the
assessor’s
which
are
not
required
by
law
to
be
kept
or
prepared
by
the
assessor,
and homeowners'
exemption
claims,
are
not
public
documents
and
shall
not
be open ‘to
public
receiving
the
homeowners'
Property
inspection.
clearly
identified
on
shall
be
exemption
the
assessor
shall
assessment
roll.
The
maintain
records
which
shall
be open
to public
inspection
to
identify
those
claimants
who have
been
granted
the
homeowners’
exemption.
n
.
.
.
.
*
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
"(c)
The a ssessor
shall
disclose
information,
furnish
abstracts
or
permit
access
to all
records
law
his
office
to
enforcement
agencies,
in
the
county
grand
the
board
of
supervisors
or
jury,
their
duly
employees
or
authorized
agents,
representatives
when conducting
an investigation
of
the
assessor's
office
pursuant
to Section
25303
of
Government
Code,
the
State
Controller,
the
i nheri
tance
tax
referees,
the
Board
of
State
Equalization
and
other
duly
authorized
legislative
or
administrative
bodies
of
the
state
pursuant
to
their
authorization
to examine
such
records.
II
.
"Sec.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
n
451:
"All
information
requested
by the
assessor
or
furnished
in
the
property
statement
shall
be held
secret
by
the
assessor.
The
statement
is
not
a
public
document
and
is
not
open
to
inspection,
except
as provided
in Section
408."
“Sec.
48i:
"All
information
requested
by the
assessor
or
the
board
pursuant
to this
article
or furnished
in
the
change
in
ownership
statement
shall
be held
secret
by the assessor
and the board.
The statement
is
not
a
document
an3
is
not
open
to
public
inspection,
except
as provided
in Section
408.“z/
-
the
Each
of the
2.
recoras
deferred
quoted
to are
statutes
not
public
3.
expressly
documents.
declares
that
Hence,
it
84-1104
.
.
In our
integral
collect
these
aspect21
taxes,
view,
confidentiality
of
the
state's
provisions
sovereign
Constitute
power?/
an
to
ho single
clear
line
of authority
is
found
in the
federal
cases,,
In
related
contexts,
for
example,
state
officers
were
not
disclose
s compel led
to
official
communications
wnIch
were
privileged
under
state
law.
In re Reid
(D-C.
Mich.
1906)
155 F. 933,
the court
held
thi:
a
compelled
in
city
assessor
Could
not
be
bankruptcy
proceedings
before
a referee
to disclose,
in Violation
of a
prohibitory
tdichigan
statute,
certain
tax
statements.
The
court
noted
that
the
purpose
of the state
statute
was:
n
plainly
to promote
the
collection
from
each
ta'xdaier
of
his
just
share
of
state,
county,
and
municipal
taxes,
and
to
that
end
to
require
from
each
property
owner
the
full
disclosure
of all
his
taxable
property
under
the
state's
pledge
that
the
statement
shall
be kept
inviolate,
save
to the
officials
for
gshose
information
and guidance
it
was
To permrait
that
information
to become
public
made.
would
defeat
the
plain
purpose
of
the
statute
by
deterring
the
taxpayer
from
revealing
what
frequently
could
not
be
learned
from
any
other
sourcer'
at
935,)
(Id_,.
2.
is
clear
California
Subd.
(d);
Cal.App.3d
(Continued.)
that
they
do not
fall
Public
Records
Act.
Homeownccs,
S'tat ewide
567,
569-m
within
the
purview
of
the
(Cf,
Gov.
Code,
S 6252,
Inc.
v. Williams
(1973)
30
confidential
documents
made
under
All
of
she
3.
and
481
are
sources
of
information
the
sections
408,
451,
is
essential
to
the
fair
and
efficient
of
which
accuracy
(Cf.
Roberts
v.
Gulf
Oil
administration
of
rhe
tax
laws,
785,
TrGallagher
v.
Cal.App,3d
770
(1983)
147
Such considF?Tons
are
%!$r
(1964)
231 Cal,App.2d
482:)
in
which
public
policy
and
of
numerous
instances
typical
interest
require
the
curtailing
of an open
and unrestricted
(Cf.
15 Ops.Cal.Atty.Gen.
242,
244
inspection
of documents.
(1950).)
The collection
of taxes
is not
the
4.
but
a sovereign
act
of the
state
of a debt,
as prescribed
by the
Legislature.
(Peo&
576,
588-589,yffd.
R.R.
CL
(1895)
105 Cal.
4.
mere
collection
to be exercised
Central
Pac.
v.
162 U,S.
9m
84-1104
*
c
l
(Similarly,
state
tax
N.L.R.B
r;lrnpZ?Yi%i
In re Vale-cia
(7th
Cfr.
1917)
commlssloner;
~3.
Herman
Brothers
(6th
Cir.
1966)TFT176
claims.)
.
240
F.
310
-Pet Supply,
Inc.
-unemployment
In
a more
recent
case,
however,
United
State?
v.
Martin
(D.
Kan.
1982)
542 F.Supp.
22,
the government
brought
an action
to enforce
a summons
issued
under
section
7602
of
the
Internal
Revenue
Code
on
the
Director
of
Property
Valuation
for
th;? State
of Kansas.
Statutes
of the
State
of
Kansas
directed
that
the
information
sought
by the
summons
not
be disclosed.
'Defendant
relies
on
K.S.A.
5 58-2223b
to
satisfy
its
burden.
Defendant
cannot
prevail
with
argument.
this
The
United
States
Constitution
provides
that
'This
Constitution,
and
the
Laws
of
the
United
States
which
shall
be made in Pursuance
thereof;
. . . shall
be the
supreme
law of the
Land
I
U.S.
Const.
art.
VI
cl.
2.
State
laws
Lh/ch'substantial1y
interfere'with
the execution
of
federal
laws
are
preempted
by the
operation
of the
Supremacy
Clause.
Aronson
v.
Quick
Point
Pencil
(1979)
440
U..S.
257,
262.
-In
general,
state
co.
laws
in
conflict
with
the
execution
of
federal
internal
revenue
statutes
have
been
made to vleld.
Dallas
National
BanL,
1.52
F.2d
582(5th
:;467"City
of Greenville,
118
F.2d
Ci)r.%41v)**
U 5
v. EttTnn,
84 F.S UPP*
963 ( 4th
(W.D.
MO.
194k=
State
laws
impedins
423
the
enforcement
of
IRS summons
have
not
bee'n
exce pted
operation
of
the
Supremacy
Clause.
il .3.c
from
the
76-l
U.S.T.C.
§ 9314
(E.D.
Cal.
19 m-7
Gard,
v.
U.S.
Intersta;;
Ba;;,,;O;l
U.S.T.C.
§ 9272
1 N.D.
TTTT
1980) .”
l
In
our
forth,
analytically
view,
this
Rule
in
the
January
Federal
.
I
however,
ultra
insufficient.
*
and
for
simplistic
501 of
title
28,
1975
(Pub.
L. 93-595,
Rules
of Evidencez/,
the
reasons
supremacy
hereinafter
approach
United
States
Code,
88 Stat.
1933)
as
provides:
set
is
enacted
part
of
It
is
assumed
for
purposes
of
this
analysis
that
5.
the
conduct
of
investigations
under
the
statute
in question
subject
to
the
same
testimonial
privileges
as judicial
is
proceedings l,c,'ann(Svee
Falsone
v. United
states,.supra,
205 F.2d
at
738;
g ;b
Securities
& Exchan&om.l(ilacir.
1937)
87 F.2d 377,378';
n,Sur.2d
Administr
e Law,
$ 267.)
It
has been
said
that
while
administrative
proceedings
are
c
J.
.
54-1134
.
req’uired
by
"Except
'as
' otherwise
the
Constitution
of
the
United
States
or
provided
by
Act
of
Congress
or
fn
rules
prescribed
by
the
Supreme
Court
pursuant
to statutory
authoritv.
the
witness,
E
, go;ernment,
!Siate,
---.--.-.
ubdivlslon
thereof
shall
Egovernedw-s
--u----v.
es-of common J&
ps they
x
E
--the _I___
the
courts
of
JI&
Unlted
States
rn
lnterpre
ted
--the
li
ht
of
reason
and experience.
However,
in
mi
re, acyio7i"s
and
prozdlngs,
w13
respect
to dn
element
of a claim
or defense
as to which
State
law
suppIles
the
rule
of decision,
the
privilege
of a
government,
State,
or
political
witness,
person,
sha'lj
determined
in
subdivision
thereof
accordance
with
State
law."
(Embpehasis
added.12/
Thus,
the
issue
in
case
is
whether
the
state
any
nondisclosure
statute
should
be recognized
as a privilege
'governed
by the principles
of the common law as they
may be
interpreted
by the
courts
of the
United
States
in the
light
of reason
and experience."l/
-
5,
--
(Continued.)
not
generally
governed
by the
Federal
Rules
of Evidence,
the
ancient
and
widely
recognized
rules
of
privilege
probably
(McMorrow
v. Schweiker
(1982)
561 F.Supp.
584,
586;
appb.
see
!IearlL
v.
FTC (1978)
462
F.Supp.
589,
vacated
as not
616 F.2d
6T
(3rd
Cir.
19801,
cert.
den.
449 U.S.
822,
ripe,
503
F.Supp.
174
(198G);
and
see
rule
1101,
after
remand,
rule
with
respect
to privileges
applies
at
subd.
(c)
- 'The
all
stages
of all
actions,
cases,
ana proceeaings.")
The
second
sentence
is
desisned
to
require
the
6.
application
of state
privilege
law in 'diversity"
'cases
(28
Tomekins
(1938)
u,s.c.
§ 1332)(;i;erned
by ErieA.
Co.
CrXt
Life
InI'
ZZ- -Unirvorl
d
304 U.S.
64,
9 e.g.,
Ins.
Co.
(S.D.
Oh.,
W.D.
lmm"me-i??
-"'s
Tr;"z-to
z
discovery
of tax
returns.)
Proposed
Federal
Rules
of Evidence,
rule
502,
not
7.
would
have
recognized
a
accepted
by
Congress,
specific
for
records
required
by
local
law
not
to
be
privilege
Its
rejection
has
no
compelling
significance
disclosed,
since
remain
free
under
more
the
courts
the
general
provisions
of rule
501 to recognize
a privilege
in a proper
(In
re H-s
(1st
Cir.
1981)
651 F.2d
19,
21,
n, 2;
case.
Uni ted SGrv.
Krnp
(E.D.
N.Y.
1976)
73
F,R.D.
103,
-iYGFm-In re Gran-ury
Empanelkd
Jan.
21,
1982 _ (0.
N.J.
1982)
535 F.Supp.
537,
540.1
60
84-1104
h
.
.
.
?.
.
Memorial
observed:
In
this
rkgarh,
Host.
Inc.
(N.D.
the
Ind.
court
1984)
in' Schafer
593mi-p.
v.
61,
Parkview
62-63,
"Because
Rule
501
of
the
Federal
Rules
of
Speaks
in
terms
of
'reason
Evidence
and
even
in
federal
question
most
courts,
experience,
look
to
siate
law
to
see
if
a
privilege
cases,
'should
be applied
by analogy
or
as a matter
of
out
the
expectation
of protiction
to its
citizens,
they
should
not
be disappointed
by a mechanical
and
unnecessary
application
of
the
federal
rule,'
Lora
74
F.R.D.
Board
of Education,
565
(E.D.Nr
v.
1977)
because
'?iTy
between
state
ancl
federal
sovereignties
impels
federal
courts
to
recognize
state
privileges
where
this
can be accomplished
at
federal
substantive
cost
to
and
I-IO substantial
King,
supra
at 105."
procedural
policy.'
the
competing
interests
between
the
In
balancing
disclosure
and
the
need
to
protect
confidentiality,
Schafer
court
invoked
the
well
established
"four
iest”-TId.,
at 64):
need
for
the
factor
"Adopting
the
four
factor
test
for
recognition
of a testimonial
privilege
recognized
in cases
such
American
Civil
Liberties
Union
of Mississippi,
as
Inc.
v. Finch,
638 F.2d
1336
(5th
Cir.
1981)
and In
651
F.2d
19
(1st
Cir.
19811,
other
re Hampers,
those
factors
to
a claimed
applied
courts
have
Ott
v.
See,
privilege
under
peer
review
statutes.
522
Fxpp.
St.
Luke
Hospital
of Campbell
County,
The
four
factors
to be taken
/06
(0.
Ky.
1981).
into
consideration
include:
The
that
” 1.
confidence
This
element
to the
full
relation
between
"2.
essential
of the
The
" 3.
opinion
fostered.
communications
they
will
of
not
must
originate
be disclosed.
of
confidentiality
and satisfactory
the
parties.
relation
must
be
the
community
ought
one
to
in
a
must
maintenance
be
which
in
the
be sedulously
would
"4.
that
inure
to
The
injury
the
disclosure
of
the
communication
relation
by
must
be greater
than
the benefit
thereby
gained
litigation.
correct
disposal
of
the
the
7.
the
for
84-1104
.
.
B at
1344;
Ott,
# ae
710."
it
remains
to be determined
wheeher
Specifically,
Revenue
and Taxation
Code sections
408,
451,
and 481 present
a o'ptYqJe~
case"
for
the
r-ecognl
tion
of
a privilege
under
section
501
of
the
Federal
Rules
of
Evidence.81
In re
651 .F.2d
19,
involved
the
issu<nce
K
D
grand
jury
investigating
an arson-insurance
S
fraud
scheme
df
a
subpoena
duces
tecum
directing
the
Commissioner
of
Revenue
for
Massachusetts
to
produce
dcbcuments
relating
to
the
sales
tax
on meals
and beverages
Owed
to
the
commonwealth
at
the
time
of
the
fire
which
destroyed
a restaurant.
A motion
to
quash
was predicated
statute
pronibiting
the
disclosure
of
tax
upon
a state
return
information.
Approaching
the
inquiry
whether
the
privilege
was
"intrinsically
meritorious
nt
juagme n t”
(American
Civil
Liberties
Finch
(5th
Cir.
v.
im=%xthe
fo ur par t test
ado pted
(id.,
at 23):
asserted
i ndepende
Miss,
court
state's
in
our
Union
of
II
The
first
is
whether
the
communica.&ions
briginate
in
a confidence
that
they
will
not
The
answer
is
and
for
a long
time
be disclosed.
The second
is whether
this
element
has been
“Yes’.
of
confidentiality
is
essential
to
'the
full
and
maintenance
of
the
relation
between
satisfactory
On this
issue
each
at
1344,
the
parties.'
Id,
The
Unitea
States
blithely
over-argues.
side
asserts
that
criminal
and other
sanctions
provide
teeth
to
continued
enough
guarantee
than
more
with
the
tax
laws.
The
Commonwealth
compliance
invokes
t&e
specter
of
Doomsday
if
the
slightest
-
Inasmuch
as the
state’s
interest
in confidentiality
the
context
of
the
federal
presented
in
agency's
it
should
be noted
at
the
outset
interest
in
disclosure,
that
the
operative
federal
statute,
26 United
States
Code
section
7602,
does
not
"otherwise
require"
the disclosure
of
confidential
information
within
the meaning
of rule
501,
but
is silent
with
respect
to rules
of evidence
and procedure.
"The
Franchise
Tax
(Compare
$ 19254,
subd.
(cl,
infra:
%??!?
tecum,
which
., o 0 may
Board
may issue
e I
D subpoenas
any
person
for
any
purpose.")
be
served
on
While
such
it
does
not
purport
to
statutory
language
is
broad
in form,
It
has been
held,
supersede
established
rules
of privilege.
that
rule
501 governs
over
the
broad
subpoena
for
example,
Empanelled
(In
re Grand
Jury
authority
of
a
and
21,
1981,
see
Jan,
Branzba
v, hay
8.
1s
8.
84-1104
.
.
.
0
enforced
breach'of
confidence
occurs.
Our view
Is
that
while
selective
disclosure
in
cases
where,
rigorous
criteria
have
been met would
most
probably
have
little
or no effect
on the
state’s
reporting
system,
easy
and
automatic
recourse
to
tax
return
information
by
federal
grand
juries
or--if
there
were
no
whatsoever--by
privi1eg.e
competitors,
creditors,
prospective
purchasers
other
litigants
in federal
court
might
eventuaT:L
have an
adverse
impact
on the
state-taxpayer
relationship.
That
such
a
relationship,
to
address
Wigmore's
third
test
briefly,
is a vital
one,
which
'ought
to
be sedulously
fostered’,
id.
at 1344,
would
seem to
be beyond
dispute.
“Wigmore’s
whether
fourth
inquiry
is
'the
injury
that
would
inure
to
the
.relation
by
the
disclosure
of the
communications
iwould
be] greater
than
the
benefit
thereby
gained‘
for
the
correct
ofation.'
Id.
at 1344
(emphasis
in
This
is the
query%t
drives
us to seek
a
Finch).
~
particularistic
answer
than
the
macrocosmic
one that
effective
federal
criminal
law enforcement
is
more
important
than
state
tax
collection.
We
can easily
see that
if
a state
tax
return
contained
the
only
key
to resolving
a serious
federal
crime,
the
balance
would
tilt
in
favor
of
the
federal
In re Grand
Jury
Sub oend
for
government.
See
State
Income
Tax,
m-fK0.N.Y.
m.Supp.
N.Y.
But
if
a return
contained
information
that
19791.
elsewhere
and
at
best
obtained
woulh
be
easily
cumulative
constitute
only
evidence
would
fmpeaching
one of several
witnesses,
we might
have
second
or third
thoughts.
as we are
under
Rule
501
to
"Being
charged
look
to reason
and experience
in 'charting
a federal
common
law,
we
think
the
has
evidentiary
key
already
been
forged
by the
Congress
in legislating
5 6103(i)(l)
the
conditions
under
in
26
U.S.C.
which
federal
tax
information
may be made available
to federal
officials
for
non-tax
criminal
purposes.
The
deliberate
judgment
of
the
legislature
on the
balancing
of
the
societal
interests
in
detecting,
criminal
and
punishing
activity,
in
preventing,
safeguarding
individuals'
interests
in privacy,
and
compliance
with
revenue
voluntary
in
fostering
seems
to us a legitimate
if
reporting
requirements,
the
formation
of
federal
not
compelling
datum
in
See floragne
v.
State
common
jaw
in
this
area.
Marine
Lines
(1970)
398
U.S.
375,39UTl,
Landis,
Harvard
Legal
Statutes
and the
Source
of Law,
in
(iPsrT,G-13,
226-27
9.
84-1104
.
"We see no reason
why,
if
federal
prosecutions
are
not
unduly
hindered
by
the
restraints
of
si 6103,
they
would
be so hindered
by applying
the
same rules
to state
tax
returns,
We see a positive
virtue
in
avoiding
either
circumvention
of
any
0 6103
or
inconsistency
in
rules
of
access
to
federal
and
state'
tax
information.
And
we see
value
in preserving
in this
small
area
the postures
of comity
and deference
arising
from
federalism."
held
The
court
that
the
Revenue
enjoyed
a qualified
of
the
state
nondisclosure
showing
by
the
federal
contravening
interest,
Massachusetts
privilege
under
statute,
swbject
grand
jury
of
Commissioner
of
rule
501 because
to an adequate
an
overriding
swra,
ral
grand
535
F,Su
jury
investigating
racketeering
of
a subpoena
duces
tecum
Division
of. Taxation
to
deliver
the
New Jersey
directing
copies
of certain
franchise
tax
returns
of a named company.
A motion
to
quash
was
predicated
upon
a state
statute
prohibiting
disclosure
by the
division
of
its
records
and
files.
The
coldrt
observed
(id.,
at
541)
that
the
motivating
factor
underlying
New xsey's
legislation
was a
accurate
and
complete
reporting
by
desire
to
encourage
providing
a measure
of
qualified
confidentiality
for
the
that
this
was a laudable
legislative
information
submitted,
means
objective,
and
that
the
chosen
were
reasonably
calculated
to achieve
that
goal.
Moreover,
"the
principles
of
comity
suggest
generally
that
the
federal
courts
should
'where
this
can be accomplished
recognize
state
privileges
at no substantial
cost
to federal
substantive
and procedural
(Citation.)"
The
court
adopted,
as
a
policy.'
(Id.)
common
under
rule
501
a qualified
matter
of
federal
tax
returns
patterned
privilege
for
the
disclosure
o f state
26
United
States
Code
section
6103(i)(l)
respecting
on
to
enforce
federal
laws
not
relating
to
tax
proceedings
at 542.)
administration.
(fd.3
where
an asserted
state
privilege
is based
on
Thus,
the
confidentiality
of
tax
returns,
26 United
States
Code
section
6103(i)(l)
sets
the
standard
where
information
is
It
is
sought
in
connection
with
non-tax
criminal
matters.
on the
other
hand,
assumed
for
purposes
of
this
analysis,
summons
issued
by
the
Internal
that
administrative
the
the
subject
of
the
present
Revenue
Service,
which
is
would
be in connection
with
a civil
or criminal
tax
inquiry'.
related
investigation.
10,
84-1104
.
United
States
v.
supra,
73
F.R.D.
103,
Kin
,
concerned
an
a taxpayer
for
failure
to
investigation
+0
declare
as income
the- proceeds
of extortion
from
high-level
narcotics
dealers.
The
United
States
Attorney
issued
a
subpoena
duces
tecum
directing
the
Department
of Finance
of
to
furnish
city
income
tax
returns
the
City
of
New York
reflecting
filing
records
and payments.
A motion
to quash
was
predicated
upon
a
provision
of
the
New
York
City
the
force
and
effect
of
state
Administrative
Code
(having
law)
prohibiting
the disclosure
of any report
or return.
The
court
observed
"does
not
rigidly
circumscribe
rules
of
privilege
applicable
Courts
may continue
to develop
as
to
formulate
new privileges
Applying
the
four
part
test,
the
federal
interest:
for
trier
"Of
full
is
the
four
revelation
the most
preliminarily
that
rule
501
the
form
or
extent
of
the
in
federal
criminal
cases.
accepted
privileges,
as well
on a case
by case
basis."
the
co Art
described
generally
factors
of
powerful
to be nleighed,
the
need
pertinent
evidence
to
the
and le,ast
variable.
II
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
"Only
recently
the
Supreme
Court
emphasized
favor
of
full
development
of
the
strong
policy
in
the
facts
in
federal
litigations
to
the
end
that
It
observed
in United
States
v.
justice
be served.
Nixon
(1974)
418 U.S.
683,
709:
employ
an
adversary
"'We
have
elected
to
in
which
the
parties
system
of
criminal
justice
The need
contest
all
issues
before
a court
of law.
all
relevant
facts
in
the
adversary
to
develop
The
system
is both
fundamental
and comprehensive.
defeated
if
would
be
criminal
justice
ends
of
founded
on
a
partial
or
judgments
were
to
be
The
very
speculative
presentation
of
the
facts.
and
public
judicial
system
the
integrity
of
confidence
in
the
system
depend
on full
disclosure
within
the
framework
of the rules
of all
the
facts,
To ensure
that
justice
is done,
it
is
of evidence.
courts
that
function
of
imperative
to
the
compulsory
process
be available
for
the
production
of evidence
needed
either
by the
prosecution
or by
the
defense."'
With
respect
"The
but
one
regulations
to
the
state
interest
the
court
observed:
secrecy
statute
involved
in
this
thousand
enactments
of
several
in
the
United
States
which
case
is
and
‘make
*
84-1104
11.
., ” ,
.
\
_, 1
1 >-*a~
,.
.;“I’
. ,~~~,‘I.-,‘..:r,.~,,-.
:A-> .r-l~~;.lr’l‘.~‘I.IF
confidential
‘sn
sundry
;arying
degree
matters
required
by law
to
be recorded
or
to be reported
orally
or
in
wrfting
to
VariOUS
administrative
officials.'
8 Gligmore,
Evidence
$ 2377
at
781
(McNaughton
rev,
195%).
These
statutes,
both
state
and
federal,
generally
represent
legislative
policI.es
of
significant
dimension.
See Advisory
Committee's
Notes
to
Proposed
Federal
Rule
of
Evidence
502,
56
F.R.D.
183,
235
(1972)).
In
effect,
government
promises
the
secrecy
as
an
inducement
for
the
creation
of the communication
to
the
state
on the
assumption
that
the
communicator
will
be motivated
to make a more
honest
and candid
As
Wigmore
points
out:
revelation.
"*Where
the
government
needs
information
for
conduct
of
its
and
the
functions
the
persons
information
need
the
encouragement
possessing
the
of
anonymity
iaa order
to
be induced
to make
full
disclosure,
the
protection
of a privilege
will
be
situations
exist
accorded,
u . o
where
Many1
information
can
best
be obtained
only
from
ihl
ierson
himself
whose
affairs
are
desired
to be
known
by the
government.
An attempt
to get
it
by
mere
compulsion
might
be tedious
and ineffective;
and a concession
of anonymity
in this
context
would
be meaningless.
Thus
where
alternative
methods
of
needed
information
are
impracticable
getting
it
is
expedient
for
government
to promise
enough,
to cloak
the
information
in some special
degree
of
ready
and
truthful
secrecy
in
exchange
for
discloswre."'
part
as
The court
follows:
interrelated
the
respective
interests
in
'A
strong
policy
of
comity
between
state
and
impels
federal
courts
to
federal
sovereignties
where
this
privileges
can
be
recognize
state
substantial
cost
to
federal
accomplished
at
no
substantive
and procedural
policy.
Cf,
Inc?,a (E,D.N.Y.
1975
McNeil
Laboratories,
.i:
that
c~nnectf~n
we recognize
the
In
this
n-7benefit
of
a state's
promise
of
protection
from
divulgence
is
greatly
attenuated
when
those
who
must
whether
to
communicate
or
choose
not
in
privilege
know
that
the
local
reliance
on
the
federal
authorities
may force
public
revelation
at
The i mpesative
need
of the
states
and their
Will.
subdivisions
to
efficiently
administer
their
own
fiscal
operations
militate
strongly
against
action
by a district
court
that
might
interfere
with
a
in
the
absence
of a showing
of
state
tax
program,
12.
84-1104
.
_.
.
*
l
need
for
subpoenaed
material.
genuine
government
Cf.
Tully
v.
Griffin
Inc.
(1976)
429
U.S.
68,
for
challenging
of
state
procedures
(recognition
state
tax
decisions
as reason
for
federal
courts
abstain
from
granting
injunction)."z/
73
to
in view
of the
necessary
balancing
It
is
apparent,
of
respective
interests
in
each
case,
that
a categorical
answer
may
abstractly
without
reference
to
not
be
given
Moreover,
specific
facts
and circumstances.
it
is not
clear
would
court
whether
a
federal
analyze
a
case
appeals
related
investigation
without
reference
to
involving
a tax
the
correlative
standards
of 26 United
States
Code
section
6103;
it
is
not
immediately
apparent
Why the
corresponding
significant
criteria
would
be
only
in
non-taxfederal
related
proceedings.
Subdivision
(h)
of
that
section
pertains
to
the
disclosure
of
federal
tax
information
for
purposes
of
tax
administration.
Subparagraph
(4)
concerns
disclosure
in judicial
and administrative
proceedings:
I.’
--A
return
disclosed
in
administrative
administration,
u(A)
proceeding,
connection
criminal
liability,
ti t7e;
"(B)
return
an issue
Such
of
or
return
Federal
proceeding
but
only--
a
or
information
State
pertaining
may
judicial
to
be
or
tax
if
the
taxpayer
is
a
party
to
the
or
the
proceeding
arose
out
of,
or in
with,
determining
the
taxpayers
civil
or
or the
collection
of such
civil
liability,
in respect
of any tax
imposed
unaer
this
if
the
treatment
of
is
directly
related
in the
proceeding;
an
item
reflected
to
the
resolution
on
"(C)
if
such
return
or
return
information
to
a transactional
relationship
relates
between
a person
who is
a party
to the
proceeding
affects
the
which
directly
and
the
taxpayer
the
proceeding;
or
issue
in
resolution
of
an
directly
the
particular
the
pertinent
tests
to
Applying
the
court
ruled
in
favor
of disclosure.
facts
of the
case,
Primary
among
the
considerations
was the
indication
that
the
principal
objective
of
the
New York
nondisclosure
provision
so as
to
encourage
candor
and
was
not
to
foster
secrecy
but
to
induce
other
taxing
cooperation
by
the
taxpayers,
authorities,
States,
to
furnish
United
including
the
information
upon
the
basis
for
selective
reciprocity.
9.
13.
84-1194
.
"ID)
to
the
extent
required
by
order
of
a
court
pursuant
to section
3500 of title
18,
United
States
Code,
or
rule
16 of
the
Federal
Rules
of
Criminal
Procedure,
such
court
being
authorized
in
the
issuance
of
order
to
such
give
due
consideration
to congressional
policy
favoring
the
confidentiality
of
returns
and
return
information
as set
forth.in
this
title.
.
"However,
such
return
or return
informatIon
shall
not
be disclosed
as provided
in subparagraph
(A),
(B),
or
(C)
if
the
Secretary
determines
that
such
disclosure
would
identify
a
confidential
Snformant
or
seriously
impair
a civil
or criminal
tax
Investigation."
#bile
we
judicial
reasoned
purposes
view,
a
confidentiality
would
be
provjsfons,
make
no
prediction
as
to
the
future
federal
determinations
in
the
premises,
it
is
at
least
a
hypothesis
that
if
disclosure
for
tax
related
of federal
tax
information
is not,
in
the
federal
impairment
of
the
general
policy
of
significant
(see
S 6103,
subd.
(a)),
a similar
view
adopted
with
respect
to
local
nondisclosure
A
lies
in
corresponding
variable
the
state
nondSsclosure
policy
which
is
propounded
as the
basis
for
It
is
a
reasonable
inference
that
the
asserted
privilege.
if
such
state
policy
itself
contains
an exception
for
tax
dSsclosures
for
concomitant
federal
related
purposes,
purposes
are
less
likely
to be viewed
as such
an increased
override
a
state
policy
as
to
dmpal'rment
of
general
where
interest,
especially
such
countervailing
federal
substantial
and
sufficiently
found
to
be
interest
is
It
remains
to be examined,
therefore,
the extent
supported.
to which
the nondisclosure
policy
of this
state
provides
for
In our
view,
tax
related
disclosures
to outside
agencies.
such
an exception
would
constitute
a strong
factor
in
the
whether
or
state-federal
equation
not
balance
of
the
reference
is made in the
total
analysis
to the provisions
of
26 United
States
Code section
6103.
Of the
three
statutes
prescribing
the nondisclosure
policy
of
this
state
with
respect
to
the
county
assessor,
and
481
which
are
the
subject
of
this
sections
408,
451,
discussion
and
set
forth
at
the
outset,
each
is
expressly
exceptions
contained
in
section
subject
to
408.
the
Subdivision
(c)
of
section
408
provides
for
disclosure
to
law
enforcement
agencies',
the
county
grand
jury,
the
board
inheritance
of
supervisors,
State
Controller,
the
tax
referees,
staff
appraisers
of
the
Department
of
Transportation,
the
State
Board
of Equalization,
and "other
bodies
of
the
state
duly
authorized
0 e . administrative
14,
84-1104
pursuant
to
With
respect
examine
such
their
authorization
to the
authority
records,
section
to
examine
of the
Franchise
19254
provides:
such
records."
Tax Board
to
"(a)
The
Franchise
Tax Board,
for
the
purpose
of
its
administering
duties
under
this
part,
ascertaining
including
the
correctness
of
any
making
a return
where
none
has
been
made;
return;
determining
or
collecting
the
liability
of
any
person
in
respect
of any
liability
imposed
by this
part
(or
the
liability
at
law
or in
equity
of any
transferee
in
respect
of
such
liability);
shall
power
to
have
the
examine
books,
any
paws,
or
other
data,
records,
which
may be relevant
to
such
purpose.
"(b)
The
Franchise
Tax
Board
attendance
of
the
taxpayer
or of
knowledge
in
having
the
premises
and
require
testimony
material
information
asld administer
oaths
provisions
of this
part.
may require
the
any
other
person
and
take
may
proof
for
its
to carry
out
the
Franchise
Tax
"(c)
The
Board
issue
may
subpoenas
or subpoenas
duces
tecum,
which
subpoenas
must
be signed
by any
member
of
the
Franchise
Tax
Board
and
may
be
served
on
any
person
for
any
purpose.'
the
state
policy
provides
for
disclosure
to another
Thus,
related
purposes.
not
for
tax
It
is
state
tax
agency
state
statute
makes
no provision
for
significant
that
the
disclosure
to
a federal
tax
agency.
The salient
factor
is
rather
that
the
state
does
not
view
its
own policy
to be so
preclude
disclosure
for
that
type
of
compelling
as
to
designated
purpose
for
which
disclosure
is
sought
by
the
federal
agency.
event
it
is
In
any
clear
that
all
of
the
four
established
factors
should
be weighed
in
the
balance.
In
the
absence
of a complete
recitation
of all
of the
material
particular
whether
actual
or
averments
of
a
case,
it
must
be concluded
generally
that
the county
hypothetical,
pursuant
to
an
assessor
may
or
not
be
required,
may
administrative
summons,
to produce
information
contained
in
which
property
records
are
subject
to
state
tax
the
nondisclosure
statutes,
depending
the
balance
of
upon
respective
state
and
federal
interests
in
any
given
case.
Such
a determination
may,
of
course,
be made by a federal
But
where
the
motion
court
pursuant
to a motion
to quash.
leaving
with
Is
simply
denied,
the
assessor
neither
an
court
order
to
summons
nor
a
express
comply
with
the
determination
of an appellate
court,
or where
the balance
in
15.
84-1104
.
.
favor
of disclosure
is
not
within
the
realm
of dispute
no such
motion
is
made,
the
question
remains
whether
is
require&i,
assessor
even
without
the
Issuance
of
express
court
order
pursuant
to an enforcement
action
by
Internal
Revenue
Service,.lOJ
to produce
such
informatdon,
atid
the
an
the
Article
3.5'
of
the
California
111, I section
Constitution
provides
that
an administrative
agency
has no
power
to
refuse
'to
enforce
a statute
on
the
basis
that
federal
law prohibits
the enforcement
of such
statute
unless
court
has
made
determination
appellate
that
the
t:forcement
of such
statute
1s prihibited
by federal
law.ll/
Section
3.5
does
not
operate
to preclude
compliance
witTa
Thus,
direct
order
of a lower
court.
it'has
been
held
that
court
issues
a
writ
when
a
superior
directed
to
an
administrative
agency
to not
enforce
a statute
because
it
is
the
administrative
agency
must
obey
that
unconstitutional,
respect
to
ind
vidual
petitioner
or
with
the
mandate
(Fenske
specific
class
of petitioners
to which
it
pertains.
of Administration
(1980)
103 Cal,App.3d
590,m
V. Board
with
the
assessor's
duty
in
We are
now concerned,
however,
where
no privilege
exists
the
absence
of
such
an
order,
under
rule
501.
10.
particularly
assessor
practicably
11,
The
assessor
where
the
as
to
infeasible.
That
section
elect
may
independent
dn
balance
of
provides
administrative
"An
adminIstrative
agency
or an initiative
statute,
in
to
await
such
an
order
determination
by
an
respective
interests
is
its
entirety:
including
agency,
created
by the
Constitution
has no power:
"(a)
To
declare
a statute
unenforceable,
on
the
basis
refuse
to
enforce
a statute,
unless
an appellate
unconstitutional
being
statute
that
such
has
made
a determination
unconstitutional;
"(b)
To
declare
a statute
an
or
of
it
court
is
unconstitutional;
refusL(c)
To declare
a statute
unenforceable,
or to
on
the
basis
that
to
enforce
a statute
federal
law
or
federal
regulations
prohibit
the
statute
unless
an
appellate
enforcement
of
such
court
has made a determination
that
the enforcement
law
or
of
such
statute
is
prohibited
by
federal
federal
regulations."
16.
84-1104
.
t..
. ,
Where
no ' suc'h
privilege
against
disclosure
is
available,
sections
408,
cl,early
451,
would
and
481
conflict
with
title
26
United
States
Code
section
7602.
Article
III,
section
3.5,
would
operate
to
preclude
the
assessor
from
complying
with
an
summons
administrative
issued
pursuant
to that
federal
statute,
since
no appellate
court
has
determined
that
enforcement
of
the
conflicting
State
restrictive
statutes
is prohibited
by federal
law.
t
0
Article
Constitution
'
.
VI,
section
2,
of
the
United
States
provides:
"This
Constitution,
and the
laws
of the
United
States
which
shall
be made
in
pursuance
thereof;
and
all
treaties
made,
or
which
shall
be made,
under
the
authority
of the
United
States,
shall
be
law
of
the
land;
lnd
the
Judges
in
the
supreme
every
State
shall
be bound
therety,
anything
in the
Constitution
or laws
of any
State
to
the
contrary
notwithstanding."
California
California
America,
law of
Similarly,
article
III,
the
section
1,
Constitution
"[tfhe
StOafte
of
provides
that
is
an inseparable
part
0.i the
United
States
of
and
the
United
States
Constitution
is
the
supreme
the
land."
the
United
Thus,
the
Constitution
an1
laws
of
States
are
the
supreme
law of
the
land,
and to these
every
of
every
owes
whether
in
his
citizen
state
allegiance,
individual
or
official
capacity.
(Ex parte
Siebold
(1879)
100
U.S.
371,
392.)
The
supremacy
clause
requires
that
every
state
provision,
including
those
enacted
by ballot
and
conform
to
federal
accorded
state
constitutional
stature,
Reitman
(1966)
64
constitutional
standards.
(Mulkey
v.
Conseqmy,
both
the
constitution
Cal.2d
529,
533,
542.1
and
laws
of
a state,
so far
as they
are
repugnant
to
the
Constitution
and
laws
of
the
United
States,
are
absolutely
States
(1889)
130 U.S.
581,
void.
(Chae
Chan Ping. v. United
605;
Ex parte
Siebold,
supra,
at 376.r
To the
extent,
therefore,
that
the
federal
statute,
title
26 United
States
Code
section
7602,
conflicts
with
it
is
the
obligation
of
the
sections
408,
451,
and
481,
county
assessor
to
act
in
accordance
with
the
federal
law
constitutional
and
and
to
disregard
conflicting
state
Such
action
Drovides
no basis
for
statutorv
orovisions.
(In
re Hampers,
s'upra,
651
F.2d
at
21;
state
la-w sanction.
In re Grand
Jury
Subpoena,
May,
1978 at Baltimore
(4th
Cir.
section-3.5
of
the
Article
Iii,
1979)
596 F.2d
630,
632.)
would
by its
express
on the
contrary,
state
constitution,
terms
interpose
a material
condition
precedent
to compliance
with
the
supreme
law,
i.e.,
an appellate
court
determination
17.
84-1104
.
The Constitution
which
may require
years
to transpire.
the
United
States
permits
no such
impediment,
Hence,
in
view,
section
3.5
Ptself
falls,
to
the
extent
inconsistency,
upon
the
bedrock
of federal
supremacy.
of
our
of
It
is
recognized
that
some state
appellate
courts
have
referred
to
section
3.5
in
the
context
of
a federal
constitutional
i,ssue.l2/
However,
the
matter
of
federal
in
connectjx
with
executive
compliance
with
an
supremacy
unconstitutfonal
state
statute
has not
been
examined
Sn any
supreme
or
appellate
court
decision',
perhaps
due
to
the
relative
insignificance
of
the
issue
once
the
statute
has
been
unconstitutional
by
declared
the
appellate
court
deciding
the case.
In any
event,
cases
in
which
section
3.5
has been
noted
generally
concerned
a COnStitUtiOnal
challenge
to
a
statute
in
state
the
course
of
an
administrative
ad judicatory
proceeding.
Public
(
Employment
Relations
Board
(1983)
104-T
.3dVi037
- PER5 properly
declined
to decide
the
question
whethir
the
claimed-statutory
right
to use
the
internal
mail
system
is
unenforceable
by reason
of
preemptive
federal
postal
law;
Lewis-Nestco
& Co.
v.
Alcoholic
Bev.
Cont.
App..Bd.
(1982)
136
C’a].App,3d
829,
840,
n.
12 - assumed,
arguendo,
thdt
section
3.5 would
prohibit
an adjudication
by the board
that
state
statute
violated
the
federal
Sherman
Act;
Chev.
iotor
Div.
v 0 New Motor
Veh.
Bd.
(1983)
146 Cal.App.3dT
board
could
not
have
granted
relief
from
a statute
339
- the
prescribing
its
composition
in-violation
of procedural
due
also
Dep.
Ale.
Bev.
Cont.
v.
process;
see
Alcoholic
Bev-.A
Cont.
App.
Bd,
(1981)
118
Ca'l.App.3d
720,
-72 .
Washington
Unified
Sch.
Dist.
(1981)
124 Cal. Appe53'd 353:j
section
3.5
does
not
affect
Of course,
of
the
California
courts
to consider
constitutional
(Dash,
Inc.
v.
(9th
683
F,2d
1229,
sally
whfle
a constitutional
issue
as to the
validitynot
be
cognizable
under
section
statute
may
it
may either
be raised
administrative
proceeding,
first
time
on judicial
review
(Westminster
Nobile
Owners'
Assn.
v.
City
of Westminster
(1985)
167
the
powers
claims.
Cir,
1982)
held
that
of a state
3.5
in
an
for
the
Home Park
m.App.Sd
In --Valdes
v.
(1983)
139 Cal.App.3d
773,
780,
12.
as a supplemental
basis
for
its
the
court
noted
summar
determination
that
an actlon
was properly
initiated
in
the
that
the
named
respondents
were
under
a
appellate
court,
imposed
by
section
3.5
to
comply
with
a constituduty
tionally
contested
statute
until
an
appellate
court
had
declared
it
invalid.
18.
84-1104
lance
wltn
an
c
9.
*
0
.
.
.
.
610,
619-620;
Chev,
v. New Motor
Veh.
Bd.,
supra,
146
Cal.App.3d
a
i to]
Industries-EMI,
Inc.
v.
Bennett
(9th
Cir,
F.2d
1107,
1116-1117f
or
nevertheless
presented
and
preserved
for
judicial
review
(Southern
Pac.' Trans.
Pub.
Util.
Corn. etc.
(9th
Cir.
.&l*
1983)
716 F.2d
1285,
Washington
Unified
Sch.
Dist,,
supra,
124
Cal .App.>d%
5!3*)
Thus,
in
the
context
the'application
of
section
ofadminlstrative
adj udication,
3.5
would
not
require
the
agency
to adt
unconstitutionally;
its
sole
effect
is
to
refer
the
parties
to
the
superior
court
for
judicial
disposition.
We are
not
concerned
here
interim
decision
in
an
with
an
extended
adjudicatory
but
with
the
effect
of section
3.5
upon
the
purelyprocess,
executive
act
of a county
assessorl3/
seeking
to comply
with
federal
summons
in
statutorily
authorized
valid
the
a
or
other
objection
which
would
of
any
privilege
absence
In such
a case,
and
warrant
judicial
fntervention
or delay.
for
the
reasons
hereinabove
set
forth,
Section
3.5
would
be
"absolutely
void"
and of no force
or effect.
It
follows
pursuant
to
a
valid
federal
that,
summons,
a
county
assessor
is
required
to
produce
information
contafned
in
property
tax
records
which
are
subject
to
state
nondi scl osure
the
statutes,
where
the
federal
interest
in
disclosure
outweighs
the
state
interest
in
confidentiality.
Considerations
which
would
weich
in
favor
of disclosure
would
include,
but
are
not
limited
to,
the
following:
1)
the
2)
resolution
of
importance
o.f
the
information
a primary
issue;
the
would
federal
directly
proceeding;
affect
the
Inasmuch
as
section
3.5
would
not
apply
in
any
13.
event,
it
is not
necessary
to engage
in a detailed
analysis
as
to
whether
the
county
assessor
is
an
"administrative
agencylL
within
meaning
of
that
section.
(Cf.
62
the
809,
811 (1979);
62 Ops.Cal.Atty.Gen.
788,
Ops.Cal.Atty.Gen.
790-791
(19791.1
Section
3.5
has
been
considered
in
connection
withiocal
agencies
(Schmid
v. Lovette
(1984)
154
district;
Cal.App.3d
473-474
-- lcal
school
466,
Westminster
Home Park
Owners'
Assn.
v.
Mobile
Westminster,
6??$~;.Cal16.7Att;:!$?.‘3d690;t
6,“:‘,,,--:%
arbitrator;
--county
board
of equalization)
and with
agencies
headed
by
an officer
as distInguished
f;;m7;o
commission
(Valdes
v.
-State
Comler,
62
Ops.Cal.Atty.Gen.
367
365,
We do not,
however,
reach
the
question
for
purposes
of this
analysis.
19.
84-1104
L
under
3)
government
federal
permitted;
4)
state
state
under
to another
law;
5)
disclosed
Investigative
iS
1)
2)
the
3)
of
would
dfsclosure
by
be permitted
the
by
assessor
is
prohibited
where
the
state
interest
the
federal
interest
which
would
weigh
in
favor
but
are
not
limited
to,
from
in
i!
the
sought
may
are
sought
interested
be
readily
would
be
available;
to
acquired
cumulative
of
disclosure
of information
not
otherwise
record
or
knowledge
would
constitute
of privacy
or impairment
of competitive
information
disclosure
of
voluntary
adverse
effect
upon
reporting
requirements:
5)
confidential
progress.
the
be
be
the
4)
substantial
revenue
by
would
in
information
sought
evidence
acquired
or
the
publ-ic
invasion
disclosure
informatdon
whose
records
is
directly
the
fnformation
source;
competent
matter
substantial
advantage:
the
taxpayer
or
a party
proceeding,
the
county
information
outweighs
Considerations
would
include,
another
other
sfmilar
circumstances,
state
taxing
agency
However,
such
producing
confidentiality
disclosure.
nondisclosure
following:
from
similar
circumstances,
of
federal
tax
disclosure
informant
of
or
information
impair
a state
would
compliance
a
a
have
a
with
would
identify
investigation
a
in
Such
information
must
be produced
in
any
case
in
of course9
It
is,
compliance
with
a specific
court
order,
the
responsibility
of
the
assessor
to proffer
in connection
with
any
such
judicial
proceeding
any
state
interest
in
interest
in
the
federal
nondisclosure
which
may
outweigh
disclosure.
*
*
20.
*
*
84-1104