(d.1) (1)Notwithstanding this Code section, the commissioner, upon request by resolution of the governing authority of any county, consolidated government, or municipality of this state, shall furnish to the designated finance officer or taxing official of the county, consolidated government, or municipality information included on the vendor's sales tax certificate for all vendors that have filed a report for the designated period, to be used by such designated officer or official in the discharge of his or her official duties.
(A) Such designated officer or official shall not be authorized to contact in any manner any taxpayer identified in such confidential information.
Such designated officer or official to whom such confidential information is provided under this subsection may request the commissioner to validate the political subdivision to which a taxpayer with a business location within the political subdivision has remitted sales and use taxes for the designated period. Upon inquiry by such designated officer or official, the commissioner shall, within 30 days, respond to the inquiry and validate that the sales tax being collected from a taxpayer is being remitted to the proper political subdivision and take other appropriate action as provided by law.
Any information furnished under this subsection to such designated officer or official shall retain its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner.
Any such information furnished under this subsection shall constitute confidential tax information for purposes of paragraph (2) of Code Section 50-14-2 and paragraph (43) of subsection (a) of Code Section 50-18-72 and shall not be discussed or disclosed except as specifically authorized under this subsection.
Such information may be discussed with or disclosed to the members of the governing authority of such county or municipality levying a tax pursuant to the provisions of Article 4 of Chapter 8 of this title, but only when the members of such governing authority are in executive session as defined in paragraph (2) of subsection (a) of Code Section 50-14-1. In the event of such discussion with or disclosure to the members of such governing authority, any such information so discussed or disclosed shall retain its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner, and any further disclosure by the members of such governing authority is prohibited. Prior to such discussion with or disclosure to the members of such governing authority, any member of the governing authority who has a conflict of interest shall be required to recuse himself or herself from the executive session. For purposes of such recusal, a conflict of interest shall include, but not be limited to, engaging in similar business to those which are identified in the confidential information or having a financial or other personal interest, direct or indirect, in such matter which is incompatible with the impartial and proper discharge of that person's official duties, which would tend to impair the independence of that person's judgment or actions, or which would make such person privy to information that would provide a competitive business advantage.
It shall be unlawful for any person to divulge confidential tax information in violation of this subsection. Any person who violates this paragraph shall, upon conviction thereof, be subject to the same penalties that would apply to an employee of the department convicted of divulging confidential tax information.
The commissioner may make a nominal charge for any information so furnished, not to exceed the actual cost of furnishing the information; provided, however, that any such charge shall be in addition to the 1 percent administrative fee otherwise allowed to the commissioner for defraying the cost of collecting a local sales and use tax.
Nothing contained in this subsection shall prevent or be construed to prevent:
The use of the information as evidence in any state or federal court in the event of litigation involving any municipal or county tax liability of a taxpayer; or
The release of the information pursuant to a subpoena or court order.
(Ga. L. 1937-38, Ex. Sess., p. 77, § 12; Ga. L. 1945, p. 160, § 1; Ga. L. 1969, p. 1137, § 1; Code 1933, § 91A-212, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 8, 9; Ga. L. 1981, p. 1857, § 4; Ga. L. 1991, p. 303, § 1; Ga. L. 2006, p. 200, § 2/HB 1310; Ga. L. 2010, p. 838, § 11/SB 388; Ga. L. 2011, p. 297, § 1/HB 346; Ga. L. 2016, p. 574, § 1/HB 960; Ga. L. 2018, p. 312, § 1/HB 811; Ga. L. 2018, p. 689, § 3-4/HB 751; Ga. L. 2018, p. 720, § 1/SB 371; Ga. L. 2019, p. 1056, § 48/SB 52.)
The 2016 amendment, effective July 1, 2016, in subsection (b), deleted "or" at the end of paragraph (b)(4), substituted "; or" for a period at the end of paragraph (b)(5), and added paragraph (b)(6); and added subsection (f).
The 2018 amendments. The first 2018 amendment, effective May 3, 2018, substituted the present provisions of subsection (e) for the former provisions, which read: "This Code section shall not be construed to prohibit persons or groups of persons other than employees of the department from having access to tax information when necessary to conduct research commissioned by the department or where necessary in connection with the processing, storage, transmission, and reproduction of such tax information; the programming, maintenance, repair, testing, and procurement of equipment; and the providing of other services for purposes of tax administration. Any such access shall be pursuant to a written agreement with the department providing for the handling, permitted uses, and destruction of such tax information, requiring security clearance checks for such persons or groups of persons similar to those required of employees of the department, and including such other terms and conditions as the department may require to protect the confidentiality of the tax information to be disclosed. Any person who divulges or makes known any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department." The second 2018 amendment, effective January 1, 2019, inserted "or her" near the end of subsection (a); deleted "or" at the end of paragraph (b)(5); substituted "; or" for a period at the end of paragraph (b)(6); and added paragraph (b)(7). The third 2018 amendment, effective July 1, 2018, repealed and reserved former subsection (d), which read: "Notwithstanding this Code section, the commissioner, upon request by resolution of the governing authority of any municipality of this state having a population of 350,000 or more according to the United States decennial census of 1970 or any future such census, shall furnish to the finance officer or taxing official of the municipality any pertinent tax information from state tax returns to be used by those officials in the discharge of their official duties. Any information so furnished shall retain, in the hands of the local officials, its privileged and confidential nature to the same extent and under the same conditions as that information is privileged and confidential in the hands of the commissioner. The commissioner may make a nominal charge for any information so furnished, not to exceed the actual cost of furnishing the information. Nothing contained in this subsection shall be construed to prevent the use of the information as evidence in any state or federal court in the event of litigation involving any municipal or county tax liability of a taxpayer."; and added subsection (d.1). See Editor's notes for applicability of the second amendment.
The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in division (e)(1)(B)(iii).
Editor's notes.- Ga. L. 2018, p. 689, § 4-1(b)/HB 751, not codified by the General Assembly, provides that: "The provisions of this Act shall not in any manner diminish, extinguish, reduce, or affect any cause of action for audits, services, or the recovery of funds from service providers which may have existed prior to January 1, 2019. Any such cause of action is expressly preserved."
Law reviews.- For comment, "Confidentiality and Dissemination of Personal Information: An Examination of State Laws Governing Data Protection," see 41 Emory L.J. 1185 (1992).
JUDICIAL DECISIONS
Purpose of exceptions to confidentiality of tax information.
- It was clear from the exceptions to former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60) and Ga. L. 1969, p. 1137, § 1 (see now O.C.G.A. § 48-2-15) that the confidentiality of tax returns is not absolute and that the social policy underlying the law providing for confidentiality of tax returns inures to the benefit of the state by encouraging the citizenry in voluntary reporting and assessment of income. Thus, the decision to produce the returns or appeal an order demanding the returns for use in a criminal prosecution lies with the Attorney General. Garrett v. State, 147 Ga. App. 666, 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322, 253 S.E.2d 741 (1979).
Use of tax information in litigation.
- While a court will afford the utmost deference to a claim of privacy raised by the Attorney General with respect to income tax returns, the Attorney General cannot defeat the need for evidence in pending criminal proceedings based upon a generalized interest in confidentiality. In extraordinary cases, when the interest in criminal prosecution is as important as the release of privileged information to other governmental units for the purpose of collection of taxes, there exists a specific exception to the confidentiality of income tax returns. Garrett v. State, 147 Ga. App. 666, 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322, 253 S.E.2d 741 (1979).
OPINIONS OF THE ATTORNEY GENERAL
Legislative purpose.
- Purpose of Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15) and former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60) is to encourage taxpayers to fully disclose their income and to protect any confidential information with reference to their business which it is essential to divulge in an income tax return; it is also the intent of the General Assembly to relieve the department from furnishing information concerning a taxpayer's income tax return. 1960-61 Op. Att'y Gen. p. 538.
Former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60) and Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15) must be construed together. 1954-56 Op. Att'y Gen. p. 767.
Permissible grounds for release of tax information.- Release of tax information for use is authorized only in cases involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue. 1971 Op. Att'y Gen. No. 71-184.
Disclosure of information which is neither secret nor confidential.- This section would not prohibit disclosure of information as to whether a taxpayer filed a tax return for a particular year. 1957 Op. Att'y Gen. p. 317.
When Ga. L. 1945, p. 160, § 1 and Ga. L. 1959, p. 88, § 1 (see now O.C.G.A. §§ 48-2-15 and50-18-70) are considered together, it was readily apparent, there being no prohibition by court order or by law against public inspection of public utilities tax information at the county level, that information incident to assessment of ad valorem taxes on public utilities furnished by the commissioner to the counties was not covered by the secrecy provision of Ga. L. 1945, p. 160, § 1, and that release of information to the public by the commissioner would not violate Ga. L. 1945, p. 160, § 1. However, any information obtained by the commissioner which in the regular course of business is not furnished to the county in the process of assessing the tax would not be the subject matter of a public document in the county office and, therefore, would remain covered by the secrecy provision of Ga. L. 1945, p. 160, § 1. 1963-65 Op. Att'y Gen. p. 277.
An application for a liquor permit is a public record and is not confidential or secret. 1963-65 Op. Att'y Gen. p. 171.
Release of tax information to public officers and agencies.- Records of the income tax unit of the department constitute confidential information and should not be divulged to local taxing authorities of this state. 1952-53 Op. Att'y Gen. p. 471.
In order to assist county tax assessors in the discharge of their duties as prescribed by law, the commissioner has authority to furnish tax information to county boards of tax assessors upon official request. 1954-56 Op. Att'y Gen. p. 767.
This section limits the commissioner to furnishing the appropriate tax official of a local government with information to which the local official is entitled by law to have access. The commissioner may only furnish other tax information to the tax or legal officer of another state, territory, country, or to the United States government. 1954-56 Op. Att'y Gen. p. 828.
Neither former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60) nor Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15) makes income tax returns privileged or confidential as to the commissioner, the commissioner's agents, or other persons who properly have access to them for use in the administration and the enforcement of any tax. 1965-66 Op. Att'y Gen. No. 66-225.
County boards of tax assessors in the discharge of their official duties are entitled to have access to the files of the commissioner, including the income tax files; any files furnished to county boards of tax assessors retain their privileged or confidential character in the hands of those officials. 1965-66 Op. Att'y Gen. No. 66-225.
Information contained in state income tax returns may not be furnished to city or municipal tax assessors. 1965-66 Op. Att'y Gen. No. 66-225.
Release of tax information to private firms and other groups.- It is not a violation of law for the department to deliver income tax returns to a private company for processing the information onto punch cards, if certain restrictions are followed. 1960-61 Op. Att'y Gen. p. 538.
Disclosure to National Alcohol Beverage Control Association of prices posted in department by various distilleries is not prohibited. 1962 Op. Att'y Gen. p. 300.
Fingerprinting not required.
- Offenses arising from a violation of O.C.G.A. § 43-17-8.1 do not, at this time, appear to be offenses for which fingerprinting is required. 2018 Op. Att'y Gen. No. 18-3.
RESEARCH REFERENCES
C.J.S.
- 84 C.J.S., Taxation, § 675.
ALR.- Recovery of damages under § 7431(c)(1)(B) of Internal Revenue Code (26 USCA § 7431(c)(1)(B)) based on improper release of confidential tax return information, 154 A.L.R. Fed. 537.