Attorney General's Opinion 1992 #157

TAXATION: GENERAL -- REVIEW OF LOCAL TAXES - COLLECTION BY TREASURERS, ETC.

ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Local treasurer/commissioner of revenue not required to prepare list of names of businesses delinquent in remitting city-imposed taxes on meals, transient lodging, amusements or other special taxes based on sales or gross receipts in response to citizen request; if such list exists, it may be disclosed without violating secrecy of information prohibition and must be disclosed on citizen request as required by Act. In absence of specific statutory language authorizing disclosure of amounts of taxes owed by delinquent taxpayers, no exception to be made to general prohibi- tion against disclosure of information about taxpayers' businesses. Local tax officials prohibited from disclosing tax amounts owed by individuals and businesses paying business license taxes, or collecting excise taxes on meals, transient lodging or amusements, and similar taxes based on sales or gross receipts, when such disclosure reveals volume of business conducted by taxpaying entity during period for which taxes due.

August 13, 1992

The Honorable Ross A. Mugler
Commissioner of the Revenue for the City of Hampton

1992

You ask whether a city treasurer, commissioner of the revenue or comparable local tax official may disclose to a requesting citizen the names of businesses that are delinquent in remitting city-imposed taxes on meals, transient lodging, amusements or other permitted special taxes based on sales or gross receipts. If so, you ask whether such a local tax official also may disclose on request the delinquent amounts owed by such businesses.

I. Applicable Statutes

Section 2.1-342(A) of the Code of Virginia, a portion of The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the FOIA), establishes a general rule that all records of public bodies are open to inspection and copying by any citizens of the Commonwealth during regular office hours, "[e]xcept as otherwise specifically provided by law."

Section 58.1-3 provides, in part:

A. Except in accordance with proper judicial order or as otherwise provided by law, the Tax Commissioner or agent, clerk, commissioner of the revenue, treasurer, or any other state or local tax or revenue officer or employee, or any former officer or employee of any of the aforementioned offices shall not divulge any information acquired by him in the performance of his duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation. Such prohibition specifically includes any copy of a federal return or federal return information required by Virginia law to be attached to or included in the Virginia return. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor. The provisions of this subsection shall not be applicable, however, to:

1. Matters required by law to be entered on any public assessment roll or book;
2. Acts performed or words spoken or published in the line of duty under the law;
3. Inquiries and investigations to obtain information as to the process of real estate assessments by a duly constituted committee of the General Assembly, or when such inquiry or investigation is relevant to its study provided that any such information obtained shall be privileged;
4. The sales price, date of construction, physical dimensions or characteristics of real property, or to any information required for building permits.
B. Nothing contained in this section shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof or the publication of delinquent lists showing the names of taxpayers who failed to timely pay their taxes, together with any relevant information which in the opinion of the Depart- ment [of Taxation] may assist in the collection of such delinquent taxes. This section shall not be construed to prohibit a local tax official from disclosing whether a person, firm or corporation is licensed to do business in that locality.

II. Section 58.1-3 Permits Disclosure of List of Names of Businesses Delinquent in Payment of City Excise and License Taxes; Preparation of List Not Required by Statute, but FOIA Requires Disclosure of List if One Exists

Although §2.1-342 of the FOIA establishes a general require- ment for disclosure of public documents, that requirement is overridden by specific statutes restricting or limiting such disclosure, because §2.1-342(A) expressly makes disclosure applicable "[e]xcept as otherwise specifically provided by law." As a result, information whose disclosure is prohibited by §58.1-3 is not required to be made public under §2.1-342. See 1982-1983 ATT'Y GEN. ANN. REP. 727 (interpreting former §58-46, now recodified as §58.1-3). A citizen seeking disclosure of information concerning individual taxpayers under the FOIA is not entitled to that information unless he can establish that it falls within a stated exception in §58.1-3 for which disclosure is permitted. National Rural Utilities v. Greenlief, No. 12457, ltr. op. at 2 (Fairfax Co. Cir. Ct. Feb. 24, 1992).

Section 58.1-3(B) expressly authorizes the publication of delinquent lists showing the names of taxpayers who failed to timely pay their taxes. A prior Opinion of this Office therefore concludes that a list of delinquent real estate taxpayers may be disclosed under §58.1-3 and must be disclosed when requested under the FOIA. 1984-1985 ATT'Y GEN. ANN. REP. 313, 313, 314 n.4.

Local treasurers are required by statute annually to prepare lists of taxpayers who are delinquent in payment of property taxes. See §58.1-3921. No comparable statutory requirement exists for preparation of lists of taxpayers who are delinquent in the payment of the taxes about which you inquire. Section 2.1-342 does not require a public official to compile information at the request of a citizen or to create a document that does not already exist. See 1989 ATT'Y GEN. ANN. REP. 13, 14.

It is my opinion, based on the above, that a local treasurer or commissioner of the revenue is not required to prepare a list of the names of businesses that are delinquent in remitting city- imposed taxes on meals, transient lodging, amusements or other special taxes based on sales or gross receipts in response to a citizen request, but that if such a list exists, it may be disclosed without violating §58.1-3 and must be disclosed on citizen request as required by §2.1-342.

III. Disclosure of Amounts of Delinquent Taxes Based on Sales or Gross Receipts Not Permitted Under §58.1-3

The exception in §58.1-3(B) specifically authorizes publication of lists showing the names of taxpayers who are delinquent. The statute makes no mention of publication of the amounts of taxes that are delinquent. The general prohibition against disclosure in 58.1-3(A), however, expressly applies to information acquired by tax officials with respect to the transactions income or business of any person, firm or corporation.

Local excise taxes on meals, transient lodging, amusements and similar items are based on the sales of the businesses that collect and remit those taxes to the locality. Local business, professional and occupational license taxes are based on the gross receipts of the businesses or individuals who pay those taxes. Accordingly, for all those local taxes, disclosure of the amount of tax owed for a particular time period necessarily reveals the volume of business conducted by the individual or business during that time period. A prior Opinion of this Office concludes that 58.1-3 prohibits a commissioner of the revenue from disclosing the amount of taxes paid by a coal company under the coal severance tax imposed by §58.1-3712, a comparable license tax based on gross receipts, because that disclosure would reveal the amount of coal produced by the taxpaying company. 1989 ATT'Y GEN. ANN. REP. 304, 305.

In the absence of specific language in §58.1-3(B) authorizing disclosure of the amounts of taxes owed by delinquent taxpayers, it is my opinion that the General Assembly did not intend to make that exception to the general prohibition in §58.1-3(A) against disclosure of information about taxpayers' businesses. It is further my opinion, therefore, that §58.1-3(A) prohibits local tax officials from disclosing the amounts of taxes owed by individuals and businesses paying business license taxes, or collecting excise taxes on meals, transient lodging or amusements, and similar taxes based on sales or gross receipts, when the disclosure of those amounts will reveal the volume of business conducted by the taxpaying entity during the period for which the taxes are due.1

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Footnotes:

1. Section 2.1-342(A)(3) of the FOIA requires that [a]ny reasonably segregatable portion of an official record shall be provided to any person requesting the record after the deletion of the exempt portion. If a local tax official receives an FOIA request for an existing document containing both the names of delinquent taxpayers of these types of taxes and the amounts of their respective delinquencies, the official should delete or excise the amounts of delinquencies from the document before disclosing it.