JULY 30, 1985

JOHN
i(. VAN
Attorney
DE KAidP
General
.
.
.
.
.
.
.
.
OPINION
of
JOHN K. VAN DE KAMP
Attorney
General
ANTHONY
S. DA VIGO
Deputy
Attorney
General
No.
84-1104
1
:
.
JULY 30, 1985
;
:
.
.
____________________~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
THE
HONORABLE
JAMES
8.
COUNSEL,
COUNTY
OF SAN LUIS OBISPO,
01 the followirlc
criostion:
LINDHOLM,
.JR.,
has requested
an
COUNTY
opinion
pursuant
to
an
Must
the
county
assessor,
Internal
Revenue
the
administrative
summons
issued
by
Service
under
title
26 of
the United
States
Code,
section
either
(a) produce
or (b) produce
only
in compliance
7602,
contained
in
court
information
with
a
specific
order,
under sections
408,
property
tax
records
made
confidential
451,
and 481 of the Revenue
and TaxationCode?
CONCLUSION
pursuant
to an
The
county
assessor
is required,
Revenue
Internal
administrative
the
summons
issued
by
Service
under
title
26 of the
United
States
Code,
section
tax
information
contained
in
property
7602,
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,
such information
where
the
but
is prohibited
from
producing
Such
information
must
be produced
state
interest
prevails.
in any case
in compliance
with
a specific
court
order.
ANALYSIS
subdivision
Title
26,
United
as
(a), provides
"For
correctness
none
has
States
fo'llows:
Code,
section
7602,
ascertaining
the
purpose
of
the
a return
where
making
of any
return,
been
made,
determining
the
liabiliKy
of
1.
84-1104
*
L ;I
.
y;
-\
L 235
r;t)j~L>tit??
sr
OF
OFiiCE
State
LN
‘L’ZL
Qt..-
I’_LXL
Kt.,UUK’L’s
-_-__
THE ATTORNEY
GEbiERAL
of California
JOHN
K. VAN DE KAFIP
Attorney
General
..
.
.
.
.
.
.
.
OPINION
of
JOHEI K. VAN DE KAMP
Attorney
General
No.
84-1104
;
:
.
ANTHONY
S. DA VIGO
Deputy
Attorney
General
JULY 30,
1985
;
:
.
.
.
____________________~~~~~~~~~~~~~~~~~~~~~~~~~~-~--~-~-~~~~~
HONORABLE
JAMES
B.
THE
COUNSEL,
COUNTY
OF SAN LUIS
OBISPO,
07 t?e
fcllloNinc
qrlestion:
LINDHOLM,
.JR.,
has requested
an
COUNTY
opinion
pursuant
to
an
Must
the
county
assessor,
administrative
Internal
summons
issued
by
the
Revenue
Service
under
title
26 of
the United
States
Code,
section
7602,
either
(a) produce
or (b) produce
only
in compliance
with
a
contained
in
specific
order,
information
court
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
issued
by
the
Internal
Revenue
Service
under
title
26 of
the
United
States
Code,
section
7602,
in
property
tax
information
contained
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
subdivision
Title
26,
United
(a), provides
as
"For
correctness
none
has
the
of
been
States
follows:
Code,
section
7G02,
ascertaining
the
of
a return
where
making
determining
the
liabiliiy
of
purpose
return,
any
made,
1.
84-1104
,
__
:.
.
.
.k;:
:
:‘.A.
._.._
__-.-
. . ...5..:.;;.cr.‘.
.
I
.
.-......
._., _.
I_,
-..
..-a
I.~
\’ .
..x_.
:
i
. . ... . I;.,.-
.
- ._.-..m.
.
I
_
r
.
._-
.
_..
:
any
person
for
any
tax
or
the
transferee
or
in respect
of any
internal
any
such
liability,
the
fi
authorized--
internal
in equity
liaoility
at law or
fiduciary
of any
perscn
revenue
tax,
or collecting
Secretary
or
his
deleaate
--
r2venue
of
any
To examine
any
books,
papers,
may
be
relevant
or
data
whicS
inquiry;
“(1)
other
such
:'(2) To
required
to
employee
of
summon
pPrfm
such
custody,
the
the
person
act,
person,
or
liable
or
aw
any
records,
material
or
to
for
tax
officer
or
person
or
having
or care
of books
of
account
containing
entries
relating
to the business
of the
person
liable
for
tax
or required
to perform
the
act,
or
other
person
the
Secretary
x
his
any
delegate
E
deem
proper,
x
appear
before
the
Secretary
or hi-legate
at-a
time and place
named
ifl the summons,
and
to produce
such
books,
papers,
records,
and to give
such
testimony,
or otherTt7
Under
oath,
as may be relevant
or material
to such
inquiry;
and
possession,
"(3) To
take
such
concerned,
under
oath,
material
to such
inquiry,"
testimony
of
the
person
may
be
as
relevant
or
(Emphasis
added.)
Such
power
granted
to the
Commissioner
of Internal
Revenue
is inquisitorial
Sn nature
and
has been
analogized
to that
vested
in a grand
jury.
(United
States
v. Cortese
(3 Cir.
1976)
540 F.26
640;
Falsone
v. United
States(5r.
1953)
205
F.2d
734,
737,
cert.. den.
346U.S.
864.1
Unlike
the
report
of a grand
jury,
the tax investigation
is reported
to
the
commissioner
rather
than
to a court
(Falsone
Y. United
States,
supra),
and
may
not
be used
for
criminal
purposes
except
where
a parallel
civfl
Investigatory
purpose
exists
(United
States
v.
Civella
(8
Cir.
1981)
666
F.2d
1122;
Unltea
States
v.
First
National
Bank of Atlanta
(5
Cir.
Ti380, 628 F.2d 871).
.
is whether
a county
assessor
The
initial
inquiry
must,
pursuant
to such
an administrative
summons,
produce
information
Contained
tax records
which
are
in property
subject
to
the
following
provisions
of
the
Rev,enue
and
Taxation
Code:l/
1.
said
Hereinafter,
unidentified
section
references
are
to
code.
84-1104
2.
___. _---.__-
._._--
‘
.
"Sec.
408:
.
providea
in
"(a) Except
otherwise
subdivisions
information
and
(b)
a"n'd (c)
any
records
in
the
office
which
are
not
assessor's
required
by
Jaw
to
be
kept
or
prepared
by
the
assessor,
and homeowners'
exemption
claims,
are not
public
documents
ana
shall
not
be open
to public
receiving
the
homeowners'
inspection.
Property
exemption
shall
be
identified
on
the
clearJy
assessment
sha7 1
roil.
assessor
maintain
The
records
which
shall
be open
to public
inspection
to
identify
those
claimants
who
have
been
granted
the
homeowners‘
exemption..
II
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
e....
"(c) The
assessor
shall
disclose
information,
furnish
abstracts
or permit' access
to all
records
his
office
in
to
law
enforcement
agencies,
the
the
board
of
supervisors
or
county
grand
jury,
their
duly
employees
or
authorized
agents,
representatives
when
conducting
an investigation
of
the assessor's
oftice
pursuant
to Section
25303
of
Government
the
State
Controller,
Code,
the
inheritance
tax
State
Board
of
referees,
the
Equalization
and
other
duly
authorized
legislative
or administrative
bodies
of the state
pursuant
to
their
authorization
to examine
such records.
n
II
.
.
"Sec.
.
.
.
.
.
.
.
.
.
.
..*.......
451:
"A77
information
requested
by the assessor
or
furnished
in the
property
statement
shall
be held
the
assessor,
The
statement
is not
a
secret
by
public
document
and
is
not
open
to
inspection,
except
as provided
in Section
408."
"Sec.
481:
'Al7
information
requested
by the assessor
or
the board
pursuant
to this article
or furnished
in
the
change
in
ownership
statement
sha7J
be
held
The statement
secret
by the assessor
and the board.
not
not
a
open
to
SS
document
ana
is
public
inspection,
except
as provided
in Section
408."2/
the
Each
of the
2.
recorcls
deferred
quoted
to are
statutes
expressly
declares
that
Hence,
it
not public
documents;
3.
84-1104
In our
integral
confidentiality
vieti,
the’se
aspect;/
collect
of
taxes.
No
federal
officers
single
cases.
In
re
a
ci ty
Reid
provisions
sovereign
constitute
power4_/
clear
line
of authority
is found
relatea
contexti,
,for
example,
compel 1 ed
to
disclose
not
which
(C.C.
state’s
in
were
oriviletrled
1906j
155 F:
under
933,
the
state
an
to
the
state
In
were
communications
the
official
law.
fn
held
that
court
compelled
in
could
bankruptcy
assessor
not
be
proceehings
before
a referee
to aiscldse,
in violation
bf a
prohibitory
Michigan
statute,
certain
tax statements.
The
court
noteC
that
the purpose
of the state
statute
was:
EliCh.
plainly
to promote
the collection
from
just
share
of state,
tixda;er
of his
county,
municipal
taxes,
and
to
that
end
to
require
each
property
owner
the. full disclosure
of all
his
taxable
property
under
the state's
pledge
that
be kept
inviolate,
save
to the
the
statement
shall
officials
for whose
informatio'n
and guidance
it was
made.
To permit
that
information
to become
public
,rc,,ild defeat
the
plain
purrorc
nf tqs
statute
by
aeterring
revealing
what
the
taxpayer
from
frequently
could
not
be
learned
from
any
ether
source.'
at
935.)
(Id.,
II
each
and
from
2.
(Continued.)
is clear
that
they
do
not
fall
California
Public
Records
Act.
Subd.
(d);
Sltatewide
Homeowners,
Cal.App.3d
567,
569-570.)
within
the
purview
of the
(Cf.
Gov.
Code,
S 6252,
Inc.
v. Williams
(1973)
30
confidential
under
made
All
of
documents
the
3.
sections
408,
451,
and
481
are
sources
of information
the
of
which
is essential
to the
fair
and
efficient
accuracy
(Cf.
Roberts
v. Gulf
Oil
administration
of the
tax
laws.
785,
n. 9;
Gallagher
v.
(1983)
147
Cal.App.3d
770,
Such
consid~?~ons
are.
Bo
231 Cal.App.Zd
482.)
ir (1964)
public
policy
and
typical
of
nu merous
instances
in which
and
unrestricted
interest
requi re the curtailing
of an open
inspectlon
of documents.
242,
244
(Cf. 15 0 ps.Cal.Atty.Gen,
(19501.1
w-
The
collection
of taxes
is not the
4.
of a debt.
but a sovereign
act of the state
as prescribed
by the
Legislature.
(People
R.R.
Co. (1895)
105 Cal.
576, 588-589,Tffd.
mere
collection
to be exercised
?ac_,
v. Central
162 U.S.
91.1
84-11G4
4.
_---------____
--___~_.-I----
(Similarly,
State
V.
tax
:i . L . R .3
compGTEih
In re Valecia
(7th
Cir.
1917)
Brothers
co~~YiZ?sloner;
c-f. Herman
.
1966rT36F.2d
176
(6th
Cir.
claims.)
243
Pet
--
F.
Supply,
310
--
Inc.
unemployment
case,
however,
United
States
v.
22, the government
brought
Martin
(D. Kan.
1982)
542 F.Supp.
an action
to enforce
a summons
issued
under
section
7602
of
Internal
the
Director
of
Property
the
Revenue
Coae
on
Valuation
for the State
of Kansas.
Statutes
of the State
of
Kansas
directeo
that
the
information
sought
by the
summons
not be disclosea.
In
a
more
rec’ent
"Defendant
relies
on
K.S.A.
cj 58-2223b
to
satisfy
its burden.
Defendant
cannot
prevail
with
this
argument.
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
ihe Land
I
State
laws
U.S.
Const.
art.
VI,
cl.
2.
;hi'ch'substantially
interfere
with
the execution
of
federal
laws
are
preempted
by the operation
of the
Supremacy
Clause..
Aronson
v.
Quick
Point
Pencil
co
In general,
state
_A_.
(1979)
440
U.S.
257,
262.
laws
‘in conflict
with
the
execution
of
feoeral
internal
revenue
statutes
have
been
made
to yield.
U.S.
Dallas
National
Bank,
152
F.2d
582
(5th
Cir. ’ 1'946m
v.
City of Greenville,
118
F.Zd
963
(PwfaCir.T41);
U S
v. Pettyjohn,
84 F.S UPP*
MO
.
tha
423
State
laws
impeding
. .
1949)Y
enforcement
of
IRS
summons
have
not been
excepted
from
the operation
of the Supremacy
Clause.
U.S.
Gard,
76-l
U.S.T.C.
5 9314
(E.D.
Cal.
1976J;
v.
Interstate
Bank,
80-l
U.S.T.C.
3 9272
(N.D.
U.S.
m
19-801."
(Id.,
at 23.)
In our
view,
forth,
this
analytically
in
the
and
for
however,
ultra
simplistic
insufficient.
Rule
501 of
January
1975 (Pub.
Federal
Rules
of
title
L.
the
reasons
supremacy
hereinafter
approach
28,
United
States
Code,
93-595,
88 Stat. 1933) as
Evidence?/,
-
Set
is
enacted
part
of
provides:
-
5.
the
assumed
for
purposes
of this analysis
that
investigations
under
the statute
in question
to
the
same
testimonial
privileges
as judicial
(See Falsone
v. United
States,
-supra,
205 F.Zd
flctilann
v. Securities
% Exchange
Com.*(cir.
1937)
377,378;
2 Am.Jur.2d
Administra-e
Law,
§ 267.)
been
said
that
while
administrative
proceedings
are
It
conduct
is
subject
proceedings.
at
87
It
7C-.;
F.Ld
has
is
of
5.
84-1104
:
..-
,.
*
“Except
otherwise
required
by
the
Constitution
ofaSth e United
States
or provided
by
Act
of
Congress
or
in
rules
prescribed
by
the
Supreme
Court
pursuant
to statutory
authority,
the
privilece
of a iqitness,
person,
government,
State,
or political
zubaivision
thEof
shall
bec)overned
--by
tile p rlncipies
’
of the common
law as -they may
??tKretea
oy
the-?O???S
of the-rnited
States
in
Kliqht
of-ressn
and
t!xpexrICe.
However,
%i
W
CI'vi Gaioo
ana
pro=dlngs,
with
respect
to an
element
of a claim
or defense
as to which
State
law
supplies
the rule
of decision,
the privilege
of a
government,
State,
or
political
witness,
person,
subdivision
shall
determined
in
thereof
accordance
with
State
law."
(Embpehasis added.f6_/
--
Thus,
the
issue
in
case
is
whether
the
state
any
nonaisclosure
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 UniZed
States
in the light
of reason
and experience."L/
5.
(Continued.)
not generally
governed
by the Federal
Rutes
of Evidence,
the
ancient
and
widely
recognized
rules
of privilege
probably
(McMorrow
v. Schweiker
(1982)
561 F.Supp.
584,
586;
apply.
see
Wearly
v.
FTC
(1978)
462
F.Supp.
589,
vacated
as not
(3rd
Cir. 19801,
cert.
den. 449 U.S. 822,
ripe,
616 F.2d
66
after
remand,
503 F.Supp.
174
(1980);
and
see
rule
1101,
subd.
(c) - "The
rule
with
respect
to privileges
applies
at
all stages
of all.actions,
cases,
and proceedings,")
The
second
sentence
is designed
to
require
the
6.
application
of state
privilege
law in "diversity"
cases
(28
§ 1332)
governed
by Erie
R. Co.
v. Tompkins
(1938)
U.S.C.
304
U.S.
64.
Credit
Life
Ins. Co.
v. Uniworld
(See,
e.g.,
ins. Co.
F.R.D.
1r
- stm
(S.D.
Oh.,
W.D.
1982)
apprred-to
discovery
of tax returiz.)
Rules
of Evidence,
rule
502,. not
7.
Proposed
Federal
accepted
by
Congress,
would
have
recognized
a
specific
privilege
for
records
required
by
local
law
not
to
be
disclosed.
has
no
compelling
significance
Its
rejection
since
more
the
general
courts
remain
under
the
free
provisions
of rule
501 to recognize
a privilege
in a proper
case.
(In re Hampers
(1st Cir.
1981)
651 F.2d 19, 21, n. 2;
United
States
v.
King
(E.D.
N.Y.
1976)
73
F.R.D.
103,
104-105;
In re Grand
Jury
Empanelled
Jan. 21, 1981
(D. N.J.
1982)
535 F.Supp.
537,
540.)
6.
84-1104
_
.
biemorial
Xrved:
In
this
regard,
Ho=. _--Inc.
'Because
Evidence
experience,'
cases,
look
'should
be
comity.’
the
court
(11.~1. Ind.
Schafer
593=-p-p.
in
1984)
v. ParkvieN
61,:
Rules
of
501
of
the
Federal
'reason
in
terms
of
and
most
courts,
even
in federal
question
to
state
law
to
see
if d privilege
Rule
speaks
applied
Ott
v.
by analogy
St.
Luke
or
as
a
Hospital
matter
of
of
CampbelL
the expectation
of protiction
to its citizens,
they
shoula
not be disappointed
by a mechanical
and
unnecessary
application
of the federal
rule,'
Lora
Board
of Education,
74
F.R.D.
v.
565
(E.D.N.
state
and
federal
1977)
because
‘Tomi ry between
sovereignties
impels
federal
courts
to
recognize
state
privileges
where
this
can be accomplished
at
no
substantial
cost
to
federal
substantive
and
procedural
policy.'
King,
supra
at 105."
out
In balancing
the
competing
interests
between
the
need
i~r*
disclosure
and
the
need
confidentiality,
to
protect
the
Schafer
court
invoked
the
well
established
Yfour
factor
'test"d.,
at 64):
"Adopting
the four factor
test for recognition
of a testimonial
privilege
recognized
in cases
such
American
Civil
Liberties
Union
of Mississippi,
as
and
In
Inc. V.
inch,
638 F.2d
133
th Clr. 1981)
19 (1st
Cir.
19811,
other
651
F.2d
re Hampers,
courts
those
factors
to
a
claimed
have
applied
Ott
v,
privilege
under-peer
review
statutes.
See,
522
Fxpp.
St. Luke Hospital
of Campbell
County,
/06
(0. Ky.
1981).
The
four
factors
to be taken
into
consideration
include:
”1 .
confidence
The
communications
that
they will
not
This
element
"2.
essential
to the full
of the relation
between
must
originate
be diSClOsed.
in
a
of confidentiality
must
be
and satisfactory
maintenance
the parties.
must
be
The
relation
"3 .
opinion
ought
of
the
community
fostered.
one
to
which
in
the
be
sedulously
“4 .
that
inure
to
the
The
injury
would
relation
by
the
disclosure
of
the
communication
must
be greater
than
the benefit
thereby
gain?d
for
the
correct
of
litigation.
disposal
the
7.
84-1104
..-, .---- --- .----._-----.
.-.- .-
--.- - -.
-^
“Finch,
supra,
at
1344;
Ott,
Supra,
at
710.”
Specifically,
it remains
to be cleterminea
whether
i?evenue
and Taxation
Code
SsctiOnS
408,
451,
and 481 present
a "proper
case"
for
the
recognition
of d privilege
under
section
501
of
the
Federal
Rules
of
Evidence.8/
In re
hammers,
651
F.Zd
19,
involved
the
issu;nce
by
a
??Zm
specia
==?
grand
jury
investigating
an arson-insurance
fraud
scheme
of
a
tecum
airecting
subpoena
duces
the
Commissioner
of
Massachusetts
to
Revenue
for
produce
aocuments
re'iating
to the sales
tax on meals
and
beverages
owed
to
the
commonwealtn
at
the
time
of
the
fire
which
destroyed
a restaurant.
A motion
to quash
was
predicated
upon
a
state
statute
the
aisclosure
of
tax
pronibiting
return
information.
Approaching
whether
inquiry
the
state's
the
asserted
privilege
"intrinsically
meritorious
in
our
was
independent
juagment"
(American
Civil
Liberties
Union
of
Hiss.
v. Finch
ii333i3--F:2
a 13 36 ) , t-nT-zci
(5th
Cir.
court
adopted
the four part
test
(id.,
at 23):
first
is whether
the
communicaTh?
'tions
originate
in a confidence
that
they
will
not
be disclosed.
The
answer
is and
for a long
time
has been
'Yes'.
The second
is whether
this element
of
confidentiality
is essential
to
'the
fu'll and
satisfactory
maintenance
of
the
relation
between
On
this
issue
each
the
parties.'
Id.
at
1344.
overargues.
blithely
side
United
States
The
asserts
that
criminal
and
other
sanctions
proviae
than
continued
more
enough
guarantee
teeth
to
The
Commonwealth
compliance
with
the
tax
laws.
if the
slightest
invokes
the
specter
of Doomsday
II
Inasmuch
as the state‘s
interest
in confidentiality
8.
is
presented
in
federal
context
of
the
agency's
the
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
confiaential
information
within
the meaning
of rule
501,
but
is silent
with
respect
to rules
of evidence
and
procedure.
nThe
Franchise
Tax
(Compare
5
19254,
suba.
(c),
infra:
Board
may issue
. . . subpoenas
E
tecum,
which
. . . may
While
such
be
served
on
any
person
for
any
purpose.")
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,
(In re Grand Jury Empanelled
authority
of
a
grand
jury.
see
and
Jan.
21, 1981,
su ra,
535
F.Supp.
at
539-540;
Branzburg
v. Hayes
1972)
408
U.S.
665,
688.1
--+8.
84-11.04
,
Our viei; is
enforceci
breach
of confidence
occurs.
that
diSClOSUre
in
cases
where
while
selective
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
privilege
whatsoever--by
competitors,
creaitors,
purchasers
or
other
prospective
litigants
in federal
court
might
eventually
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',
ia. at 1344,
would
s2em
to
be beyond
dispute.
'Wigmore's
inquiry
is
whether
'the
fourth
injury
that
would
inure
to
the
relation
bv
the
disclosure
of the communications
[would
be] greater
than
the
benefit
thereby
gained
for
the
correct
xosrof
litiaation.'
Id. at 1344
(emohasis
in
Finch).
This
is-the
querythat
drives
us to seek a
more
particularistic
answer
than
the
macrocosmic
one that effective
federal
criminal
law enforcement
1 s mo 1-e Important
than
state
tax
CulleCiiOn.
We
can easily
see that
if a sta'te tax return
contained
the only
key
to resolving
a serious
federal
crime,
the
balance
would
tilt
in
favor
of
the
federal
government.
In re Grand
Jury
Subpoena
for
See
N.Y.
State
Income
Tax,
468
F.Supp.
575
(N.D.N.Y.
1979).
if a return
contained
information
that
But
would
be
easily
ef sewhere
best
obtained
and
at
would
constitute
only
cumulative
evidence
impeaching
one of several
witnesses,
we might
have
second
or third
thoughts.
"Being
charged
as
we
are
under
Rule
501
to
look
to reason
and experience
in'charting
a federal
evidentiary
common
law,
we
think
the
has
key
already
been
forged
by the Congress.in
legislating
in
26
U.S.C.
0
6103(i)(l)
the
conditions
under
which
federal
tax fnformation
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,
preventing,
and
punishing
criminal
activity,
in
safeguarding
individuals'
interests
in privacy,
and
in
fostering
voluntary
compliance
with
revenue
reporting
requirements,
seems
to us a legitimate
if
not
compelling
datum
in the
formation
of
federal
common
law
in
this
area.
See
Moragne
v.
State
Marine
Lines
(1970)
398
U.S.
375,
390-91,
Landis,
and the Source
of Law,
in
Statutes
Harvard
Legal
Essays
213,
226-27
(igT6>,
9.
84-1104
,.
reason
why,
if federal
prosecutions
are
not
unduly
the
restraints
of
hindered
by
§ 6103,
they
would
be so hindered
by applying
the
same rules to state tax returns.
We se2 a positive
circumvention
of
virtue
in
efther
avoiding
any
9 6103
or
rules
of
inconsistency
in
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."
“We se2
no
The
court
held
that
the
Revenue
enjoyed
a qualified
of the
stat2
nondisclosure
showing
by
the
federal
contravening
interest.
Comm issioner
of
Massachusetts
privilege
under
rule
501 because
statute,
subject
to an adequate
jury
of
an
overriding
grand
In re Grand
Jury
Empanelled
Jan. 21, 1981,
supra,
involved
the
i-ssuance
by a federal
grand
FSupp.
537,
investigating
racketeering
of a subpoena
duces
tecum
directing
Division
of- Taxation
to
deliver
the
New
Jersey
copies
of certain
franchise
tax returns
of a named
company.
A
motion
to
predicated
upon
a
State
statute
quash
was
by
the
division
of its
recnrds
and
prohibiting
rtisclosure
files.
535
jury
541)
The
court
observed
(id.,
at
that
the
motivating
factor
underlying
New Jersey's
legislatton
was a
desire
to
encourage
complete
reporting
by
accurate
and
providing
a measure
of
qualified
confidentiality
for
the
information
submitted,
that
this was a laudable
legislative
objective,
and
that
were
the
means
chosen
reasonably
calculated
to achieve
that
goal.
Moreover,
"the p-rinciples
of com:'ty
suggest
generally
that
the federal
courts
should
.recognize
state
privileges
'where
this
can
be accomplished
at no substantial
cost
to federal
substantive
and procedural
policy.'
(Citation.)"
The
court
adopted,
as
a
(Id.)
matter
of
federal
common
law
under
rule
501
a qualified
privilege
for the disclosure
of state
tax returns
patterned
on
26
United
States
Code
section
6103(i)(l)
respecting
to enforce
federal
laws
not
relating
to
tax
proceedings
administration.
at 542.)
(Id.,
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
sought
in connection
with non-tax
Criminal
matters.
It is
assumed
for
purposes
of this
analysis,
on the
other
hand,
that
the
administrative
issued
by
summons
the
Internal
Revenue
subject
of
the
Service,
which
is
present
the
inquiry,
would
be in connection
with
a civil
or criminal
tax
related
investigation.
10.
84-1104
United
States
v.
concerned
an
investigation
as income
thz- proceeds
of extdrtion
from high-level.
declare
narcotics
The
United
States
Attorney
issued
a
dealers.
subpoena
duces
tecum
directing
the Department
of Finance
of
the
City
of
New
York
to
furnish
city
inCOme
tax
Wturns
reflecting
A motion
to quash
filing
records
and payments.
was
predicated
the
New
York
City
upon
a
provision
of
Administrative
Code
(having
the
force
and
effect
of
state
law) prohibiting
the disclosure
of any report
or return.
observed
preliminarily
that
rule
501
The
court
"does
not
rigidly
circumscribe
the
form
or
extent
of
the
in
federal
criminal
cases.
rules
of
privilege
applicable
privileges,
as well
Courts
may
continue
to develop
accepted
as
to formulate
new
privileges
on a case
by case
basis."
the court
described
generally
Applying
the
four
part
test,
the federal
interest:
"Of
for
full
trier
is
the
four
factors
to be weighed,
the
need
revelation
of pertinent
evidence
to the
the most
powerful
and least
variable.
I
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
"Only
recently
Court
emphasized
the
Supreme
the
strong
policy
in favor
of full
development
of
the
facts
in federal
litigations
to. the
end
that
justice
be served.
It observed
in United
States
v.
Nixon
(1974)
418 U.S. 683, 709:
"We
have
elected
to
employ
an
adversary
system
of
criminal
justice
in
which
the
parties
contest
all issues
before
a court
of law.
The need
to
develop
all
relevant
facts
in
the
adversary
system
is both
fundamental
and
comprehensive.
The
ends
of
criminal
justice
would
be
defeated
if
judgments
be
founded
on
a
partial
or
were
to
speculative
presentation
of
the
facts.
The
very
integrity
of
public
judicial
the
system
and
confidence
in the system
depend
on full
disclosure
of all the facts,
within
the framework
of the rules
of evidence.
To ensure
that justice
is done,
it is
imperative
to
function
of
courts
the
that
compulsory
process
be available
for the production
of evidence
n'eeded 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
case
is
of
several
thousand
enactments
and
in
United
which.
'make
the
States
11.
84-1104
.
Confidential
in
varying
sundry
matters
degree
by law to be recorded
or to be reported
required
orally
or
in
writing
to
administrative
various
officials.'
8 .Wigmore,
Evidence
P 2377
at
781
(McNaughton
rev.
1951).
Tnese
statutes,
both
state
and
federal,
generally
represent
legislative
polici.es
cf
significant
dimension.
See
Advisory
Committee’s
Federal
Rule
of
Notes
to
Proposed
Evidence
502,
56
F.R.D.
183,
235
(1972)).
In
effect,
the
government
secrecy
as
an
promises
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
revelation.
As Wigmore
points
out:
needs
information
for
"'Where
the
government
the
conduct
of
its
functions
and
the
persons
possessing
the
information
need
the encouragement
of anonymity
in order
to be induced
to make
full
disclosure,
the
protection
of a privilege
will
be
accorded.
. . .
exist
where
situations
hJanyl
information
can
best
be obtained
only
from
;hi ;)c?rson
himself
whose
affairs
are desired
to be
known by the
government.
it by
An attempt
to get
mere
compulsion
might
be
tedious
and
ineffectjve;
and a concession
of anonymity
in this context
would
be meaningless.
Thus
where
alternative
methods
of
getting
impracticable
needed
information
are
enough,
it is expedient
for government
to promise
to cloak
the information
in some
special
degree
of
secrecy
in
truthful
exchange
for
and
ready
disclosure."'
part
as
The
court
follows:
interrelated
the
respective
interests
in
"A strong
policy
of comity
between
state
and
federal
sovereignties
courts
to
impels
federal
recognize
this
can
be
state
privileges
where
federal
cost
to
accomplished
at
no
substantial
Cf. Apicella
v.
substantive
and procedural
policy.
McNeil
taboratories,
Inc. (E.D.N.Y.
19751
66 F.R.D.
In
that
the
recognize
connection
we
78.
this
benefit
of
a
state's
promise
of
protection
from
divulgence
those
Wh6
attenuated
when
is
greatly
must
choose
not
in
whether
to
communicate
or
that
reliance
on
the
local
the
privilege
know
federal
authorities
may
force
public
revelation
at
will.
The
imperative
need
of the states
and
their
subdivisions
their
own
to
efficiently
administer
fiscal
operations
militate
strongly
against
action
by
a district
court
that
might
interfere
with
a
state
tax
program,
in the absence
of a showing
of
84-1104
12.
- ~- -.--
___.____.__.-.-__.._ .-. .-- ..
government
need
for
subpoenaed
material.
Tully
v. Griffin
Inc.
(1976)
429 U.S.
68,
73
for challenging
(recognition
of state
procedures
state
tax decisions
as reason for federal
courts
to
abstain
from granting
injunction)."z/
genuine
Cf.
It is apparent,
in view of the necessary
balancing
of rejpective
that
a categorical
case,
interests
in each
answer
without
reference
to
not
be given
abstractly
may
specific
facts and circumstances.
it is not clear
Moreover,
whether
a
case
federal
would
analyze
a
court
appeals
involving
a tax related
investigation
without
reference
to
the correlative
standards
of 26 United
States
Code
SeCtiOn
6103;
it is not immediately
apparent
why the corresponding
federal
non-taxwould
be
significant
only
in
criteria
related
Subdivision
(h)
of
that
section
proceedings.
pertains
to the disclosure
of federal
tax information
for
purposes
of tax administration.
Subparagraph
(4) concerns
disclosure
in judicial
and administrative
proceedings:
I8
--A
return
or
return
information
may
disclosed
in
a
Federal
or
jodl'cial
State
administrative
proceeding
per!aining
to
administration,
but only--
be
or
tax
"(A) if
the
taxpayer
is
a
party
to
the
proceeding,
or the proceeding
arose out of, or
in
connection
with, determining
the taxpayers
civil or
Criminal
liability,
or the collection
of such civil
liability,
in respect
of any tax imposed
under this
title;
'(8) if the treatment
of an ftem reflected
on
such return
is
directly
related
to the resolution
of an issue in the proceeding;
"(C) if
such
return
or
returti
information
directly
relates
to
a transactional
relationship
between
a person
who is a party to the proceeding
and
the
taxpayer
which
directly
affects
the
resolution
of
an
issue
in
the
proceeding;
or
Applying
the
pertinent
tests
to
the
9.
particular
facts of the case,
the court ruled in favor of disclosure.
Primary
among the considerations
was the indication
that the
principal
objective
of the New York nondisclosure
provision
was
not to foster
secrecy
so as to encourage
candor
and
cooperation
by the taxpayers,
but to induce
other
taxing
authorities,
including
the
United
States,
to
furnish
information
upon the basis for selective
reciproc$ty.
13.
84-1104
"(0)
to
the
extent
required
‘by' order
of
a
court
pursuant to section
3500 of title
18, United
or
rule
16 of
the
Federal
Rules
of
States
Code,
such
court
Deing
authorized
in
Criminal
Procedure,
due
order
to
give
issuance
of
the
such
consideration
to congressional
policy
favoring
the
information
confidentiality
of returns
and
return
as set forth
in this
title.
-
such
return
or return
information
"However,
shall
not
be disclosed
as provided
in subparagraph
(A),
(61,
or (C) if the Secretary
determines
that
confidential
a
identify
such
disclosure
would
informant
or
seriously
impair
a civil
or criminal
tax investigation."
federal
While
we
no
prediction
as
to
the
future
make
judicial
determinations
in the przmises,
it is at least
a
if
disclosure
for
tax
related
reasoned
hypothesis
that
purposes
of federal
tax
information
is not,
in the federal
policy
of
of
the
general
view,
a
significant
impairment
(see
S 6103,
subd.
(a)),
a
similar
View
confidentiality
ncndicclosur2
lccal
w~sllld be
rcsp2ct
to
a.Soptzd
wi t h
provisions.
the
state
A
variable
lies
in
corresponding
nondisclosure
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
for
federal
concomitant
related
purposes,
disclosures
purposes
are
less
likely
to be viewed
as such
an increased
override
a
impairment
of
policy
as
to
general
state
such
where
federal
especially
countervailing
interest,
sufficiently
and
substantial
interest
is
found
to
be
the extent
It
remains
to
be
examined,
therefore,
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
not
equation
whether
or
balance
of
the
state-federal
reference
is made
in the total
analysis
to the provisions
of
26 United
States
Cod2
section
6103.
Of the three
statutes
prescribing
the nondisclosure
policy
of this
state
with
respect
to the
county
assessor,
sections
408,
451,
and
481
which
are
the subject
of
this
discussion
and
set
forth
at the outset,
each
is expressly
section
408.
contained
in
subject
to
the
exceptions
Subdivision
(c)
of
section
408
provides
for disclosure
to
law
enforcement
agencies,
the county
grand
jury,
the board
tax
inheritance
of
the
Controller,
supervisors,
State
Department
of
referees,
the
staff
appraisers
of
.Transportation,
the State
Board
of Equalization,.
and
"other
administrative
bodies
of
the
state
duly
authorized
. . .
14.
84-1104
pursuant
to
jrith respect
examine
such
their
authorizati
to the authority
records,
section
such
records.'
on
to examine
of the Franchise
Tax
Board
to
19254
provides:
:
“(a) The Franchise
Tax Board,
for
the purpose
this
administering
under
of
its
duties
part,
ascertaining
correctness
of
including
the
any
return;
making
a return
where
none
has
been
made;
the
liability
of
any
determining
or
collecting
person
in respect
of any
liability
imposed
by this
part
(or
the
liability
at law or in equity
of any
respect
of
such
liability);
shall
transferee
in
books,
have
the
power
to
examine
papers,
any
which
may
be relevant
to
records,
or other
data,
such
purpose.
Tax
Board
may
require
the
"(b) The
Fr anchise
attendance
of the
taxpayer
or of any
other
person
in
the
premises
and
may
take
having
knowledge
proof
its
for
testimony
and
require
material
information
and
administer
oaths
to carry
out
the
provisions
of this
part.
Board
issue
Tax
"(cl The
Franchise
may
subpoenas
or subpoenas
duces tecum, which subpoenas
must
be signed
by any
member
of the Franchise
Tax
be
served
on
any
person
for
any
Board
ar!,d may
purpose.
Thus,
the
state
policy
provides
for disclosure
to another
It
is
not
for
tax
related
purposes.
state
tax
agency
significant
that
the
state
statute
makes
no provision
for
The
salient
factor
is
disclosure
to a federal
tax agency.
rather
that
the state
does
not view
its own policy
to be so
disclosure
for
that
type
of
compelling
as
to
preclude
designated
purpose
for
which
disclosure
is
sought
by
the
fegeral
agency.
In
any
event
it
is
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
actual
or
whether
averments
of
a
particular
case,
it must
be concluded
generally
that
the county
hypothetical,
may
or
pursuant
to
an
assessor
not
be
required,
may
to produce
information
contained
in
administrative
summons,
subject
to
the
state
records
which
are
property
tax
depending
the
balance
of
nondisclosure
statutes,
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.
neither
an
is
the
assessor
with
simply
denied,
leaving
nor
a
court
summons
express
order
to
comply
with
the
determination
of an appellate
court,
or where
the' balance
in
84-1104
15.
_
-.-_... _--------
----------..- .-----.-.
.. ..-_-_..- _._--._..
. _
favor
of disclosure
is not within
the realm
of dispute
such
motion
is made,
no
the
question
remains
whether
assessor
is
required,
without
the
issuance
even
of
express
court
order
pursuant
to an enforcement
action
by
In ternal
Revenue
Service,s/
to produce
such
information.
and
the
an
the
Article
III,
the
California
section
3.5,
of
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
appellate
has
determination
that
the
zzforcement
of :~~~tstatutem~~epr~hibited
by federal
law.II/
Section
3.5
does
not
operate
to preclude
compliance
witha
direct
order
of a lower
court.
it'has
been
held
that
Thus,
when
a
directed
to
an
superior
court
writ
issues
a
administrative
agency
to not enforce
a statute
because
it is
unconstitutional,
the
administrative
agency
must
obey
that
the
individual
petitioner
or
mandate
with
respect
to
specific
class
of petitioners
to which
it pertains.
(Fenske
of Administration
(1980)
103 Cal.App.3d
590,TKr
v. Eoard
duty
in
We are
now
concerned,
however,
with
the aSSeSSOr’S
where
no
privilege
exists
the
absence
of
such
an
order,
under
rule 501.
The
assessor
may
elect
to
await
such
an
order
10.
determination
by
an
particularly
an
independent
where
interests
is
the
of
respective
assessor
as
to
balance
practicably
infeasible.
11.
That
section
provides
fn
its
entirety:
including
an
administrative
'An
agency,
administrative
agency
created
by
the
Constitution
or an initiative
statute,
has no power:
"(a) To
declare
a statute
unenforceable,
or
refuse
to enforce
a statute;
on
the
basis
af
it
unless
an
appellate
court
being
unconstitutional
statute
is
has
determination
that
such
made
a
unconstftutional;
"(b)
To
declare
a
statute
unconstitutional;
"(cl To declare
a statute
unenforceable,
or to
that
refuse
to
enforce
a
the
basis
statute
on
federal
law
or
federal
regulations
prohibit
the
unless
an
appellate
enforcement
of
such
statute
court
has made
a determination
that
the enforcement
law
or
of
such
statute
is
prohibited
by
federal
federal
regulations."
16.
84-1104
against
disclosure
is
jlhere
no
privilege
such
481
would
clearly
and
available,
sections
408,
451,
7602.
conflict
with
title
26
United
States
Code
section
Article
III,
section
3.5,
would
operate
to
preclude
the
summons
administrative
assessor
from
with
an
complying
issued
pursuant
to that
federal
statute,
since
no appellate
the
conflicting
Court
has
determined
that
enforcement
of
State
restrictive
statutes
is prohibited
by federal
law.
Article
VI,
Constitution
provides:
section
2,
of
the
United
States
and the laws of the United
"This
Constitution,
States
which
shall
be made
in pursuance
thereof;
or
which
shall
be
made,
and
all
treaties
made,
under
the authority
of the United
States,
shall
be
law
of
the
land;
and
the
Judges
in
the
supreme
every
State
shall
be bound
thereby,
anything
in the
Constitution
or laws
of any'state
to the contrary
notwithstanding."
the
Similarly,
section
1,
article
III,
"[t]he
SrOafte
of
California
provides
that
Constitution
Ca'l.;forr.ia is an
inseparable
part
cf the
Uni';G.a States
of
America,
and
the United
States
Constitution
is the
supreme
law of the land."
Thus,
the
Con,stitution
and
laws
of
the
United
States
are
the supreme
law of the land,
and
to these
every
citizen
his
of
every
allegiance,
whether
in
state
owes
Individual
or official
capacity.
(Ex parte
Siebold
(1879)
100
U.S.
371,
392.1
The
supremacy
clause
requires
that
every
state
provision,
including
those
enacted
by ballot
and
conform
to
federal
accorded
state
constitutional
stature.
constitutional
(Mulkey
VI
Reitman
(1966)
64
standards.
Cal.'2d. 529,
533,
542..)
Conseqmy,
both
the constitution
.and latis of a State,
so far
as they
are
repugnant
to the
Constitution
and
laws
of the United
States,
are absolutely
void.
(Chae
Chan Ping
States
(1889)
130 U.S.
581,
V. United
605;
Ex parte
Siebold,
supra,
at 376.)
To the extent,
therefore,
that the federal
statute,
title
26
United
States
Code
section
7602,
conflicts
with
sections
408,
451,
and
481,
it
is
the
obligation
of
the
county
assessor
to act
in accordance
with
the
federal
law
and
to
ano
constitutional
disregard
conflicting
state
Such
action
provides
no
basis
for
statutory
provisions.
(In re Hampers,
supra,
651
F.2d
at 21;
state
law
sanction.
In re Grand Jury Subpoena,
flay, 1978 at Baltimore
(4th
Cir.
Article
III,
section
3.5
of the
1979). 596
F.2d
630,
632.)
state
constitution,
on
the
contrary,
would
by its
express
terms
interpose
a material
condition
precedent
to Compliance
an appellate
court
determination
with
the supreme
law,
i.e.,
17.
84-1104
The
Conrti tution
which
may
require
years
to transpire.
Hence,
in
tt7e United
States
permits
no such
impediment.
extent
itself
the
view.,
section
3.5
falls,
to
of federal
supremacy.
inconsistency,
upon
the bedrock
of
our
of
It is
recognized
that
some
state
appellate
courts
have
referred
to section
3.5
in the
context
of a federal
constitutional
the
matter
of
federal
issue.lZ/
However,
supremacy
with
executive
compliance
with
an
in connectiX
unconstitutional
state
statute
has not been
examined
in any
supreme
or
perhaps
due
to
the
appellate
court
decision,
of
the
issue
once
the
statute
has
relative
insignificance
been
appellate
court
declared
unconstitutional
by
the
deciding
the case.
cases
in which
section
3.5
has been
In any
event,
a constitutional
challenge
to a
noted
generally
concerned
administrative
state
statute
in
the
course
of
an
Public
adjudicatory
proceeding.
1042
Employment
Relations
Board
(1983)
the
- PER8
properly
declined
to decide
the question
whet&
claimed
statutory
right
to use
the
internal
mail
System
is
law;
of breemntive
federal
uos+.ai
unenforceable
b\l reason
(1982)
Lewis-Westco
& Co.
v.
Alcoholic
Bev. Cont.
App.'Bd.
136
Ca !.,4pp.3d
829,
840,
n. 12 - assumed,
aFguend0,
that
section
3.5 would
prohibit
an adjudication
by the board
that
a
Chev.
state
statute
violated
the
federal
Sherman
Act;
Motor
Div.
v. New Motor
Veh.
Bd. (1983)
146 Cal.App.3dm
could
not have granted
relief
from a statute
539 - the board
of procedural
due
prescribing
its
composition
in violation
also
-Dep.
Ale.
Bev. Cont.
v.
Alcoholic
Bev.
process;
see
Leek
Cont.
App
Bd.
118
Cal.App.3d
720,
72 *
(1981)
Washingto;
Unified
Sch.
Dist.
(1981)
124 Cal.App%d
c53:;
section
3.5
does
not affect
the
powers
Of course,
of the California
courts
to consider
constitutional
claims.
(Dash,
Inc. v. Alcoholic
Bev. Cont.
App
Bd, (9th Cir.
1982)
it
has been
uiiversally
held that
683
F.2d
1229,
1234.)
while
a constitutional
issue
as to the validityof a state
under
section
3.5
in
an
statute
cognizable
not
be
may
it may either
be raised
for
the
administrative
proceeding,
first
time
on judicial
review
(Westminster
Mobile
Home
Park
Owners'
Assn.
v. City
of Westminster
(1985)
167
Cal.App.3d
In Valdes
v. Cory
(1983)
139 Cal.App.Jd
773,
780,
12.
the
court
nogsummarm
as a supplemental
basis
for its
determination
that
an action
was
properly
initiated
in the
that
the
named
respondents
were
under
a
appellate
court,
duty
imposed
by
section
3.5
to
comply
with
a
constituappellate.
court
had
, tionally
until
an
contested
statute
declared
it invalid.
18.
84-1104
.
610,
619-620;
Chev.
Motor
Div.
v. New Motor
Veh.
Bd.,
supra,
146
539;
Cal.App.3d
at
Capitol
Industries-EMI,
Inc.
v;
Bennett
(9th
Cir.
1982)
681
F.2d
1107,
1116-1117f
nevertheless
presented
and
preserved
for
judicial
revi::
(Southern
Pac.' Trans.
Util;
Corn. etc.
(9th
Cir.
Pub.
1983)
716
F.26
1285,
l;;l*
Washington
Unified
Sch.
Dist.,
supra,
Thus,
in the context
124 Cal.App.'3d%?5~)
ofministrative
adjudication,
the'application
of
section
3.5 would
not require
the agency
to act unConStitutiOnally;
its
sole
effect
is
to
the
superior
to refer
the
parties
court
for
judicial
disposition.
We are
not
concerned
here
with
an
interim
decision
in
an
adjudicatory
extended
process,
but with
the effect
of section
3.5 upon
the purely
executive
act of a county
assessorl3/
seeking
to comply
with
summons
in
a
the
statutorily
valid federal
authorized
absence
or
other
objection
which
would
of
any
privilege
In such a case,
and
warrant
judicial
intervention
or -delay.
for
the reasons
hereinabove
set forth,
section
3.5 would
be
“absolutely
void"
and of no force
or effect.
valid
It
follows
federal
that,
pursuant
to
a
summons,
acounty
required
to
produce
assessor
is
iI)fcrmaticn
contained
in
property
tdx
records
which
are
subject
to
the
state
statutes,
where
nondisclosure
the
federal
interest
in disclosure
outweighs
the state
interest
in
confidentiality.
Considerations
which
would
weigh
in
limited
to,
favor
of disclosure
would
include,
but are not
the following:
the
1)
2)
resolution
of
importance
o.f the
the
information
a primary
issue;
would
federal
proceeding;
directly
affect
the
Inasmuch
as
section
13.
3.5
would
not
apply
in
any
event,
it is not necessary
to engage
in a detailed
analysis
as
to
whether
the
county
assessor
is
an
"administrative
agency'
within
the
meaning
of
that
section.
(Cf.
62
Ops.Cal.Atty.Gen.
809,
811
(1979);
62 Ops.Cal.Atty.Gen.
788,
790-791
(1979)J
Section
been
considered
in
3.5
has
connection
with
local
agencies
(Schmid
v. Lovette
(1984)
154
Cal.App.3d
466,
473-474
school
district;
--ml
Westminster
Mobile
Home
Park
Owners'
Assn.
v.
Westminster,
6~up~~~.C~~~Att~~!E~~~.3d6go~t
619
--=+-&
arbitrator;
694-695
--county
board
of equalization)
and with
agencies
headed
by
an
officer
as
distinguished
from
a commission
(Valdes
v.
supra,
139
Cal.App.3d
at
780
-State
Comer,
Gory,
Director
of
Finance;
cf.
62
Ops.Cal.Atty.Gen.
365,
367
(1979)
--Secretary
of State).
We do not,
however,'reach
the
question
for purposes
of this analysis.
19.
84-1104
~.-...-c._-_-
____.__
-...-.--.
_._
.._.-_.-
.
under
3)
government
similar
circumstances,
disclosure
by
of
federal
tax
information
would
the
be
under
similar
circumstances,
disclosure
by
4)
to another
state
taxing
agency
would
be permitted
law;
the
by
federal
permitted;
state
state
5)
disclosed
is
investigative
the
taxpayer
a
party
or
proceeding.
whose
records
is
directly
are
sought
interested
to be
in
the
However,
the
county
assessor
is
prohibited
from
producing
such
interest
in
where
the
state
information
confidentiality
interest
in
federal
the
outweighs
Considerations
which
would
weigh
in favor
of
disclosure.
nondisclosure
would
include,
but
are
not
limited
to,
the
following:
from
other
1)
another
the information
source;
sougnt
the information
sought
competent
evidence
acquired
or
2)
may
be
readily
would
he
available;
acquired
cumir1sti\re
of
the disclosure
of information
not otherwise
3)
matter
of
publ-ic
record
or
knowledge
would
constitute
substantial
invasion
of privacy
or impairment
of competitive
advantage:
disclosure
of
information
4)
substantial
adverse
effect
upon
vo?untary
revenue
reporting
requirements:
5)
confidential
progress.
disclosure
informant
of
or
information
impair
a state
a
a
would
have
a
compliance
with
would
identify
investigation
a
in
Such
information
must
be produced
in any
case
in
It is, of course,
compliance
with
a specific
court
order.
the responsibility
of the assessor
to proffer
in connection
with
proceeding
any
state
interest
in
such
judicial
any
interest
in
nondisclosure
which
may
outweigh
the
federal
disclosure.
*
*
*
20.
*
84-1104