Confidentiality of Tax Information; Exceptions; Authorized Inspection by Certain Officials; Conditions; Furnishing Information to Local Tax Authorities; Conditions; Furnishing Information to Nonofficials; Conditions; Effect of Code Section

  1. Law
  2. Georgia Code
  3. Revenue and Taxation
  4. Income Taxes
  5. Returns and Furnishing of Information
  6. Confidentiality of Tax Information; Exceptions; Authorized Inspection by Certain Officials; Conditions; Furnishing Information to Local Tax Authorities; Conditions; Furnishing Information to Nonofficials; Conditions; Effect of Code Section

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  1. Except in accordance with proper judicial order or as otherwise provided by law, it is unlawful for the commissioner, other officer, employee, or agent, or any former officer, employee, or agent to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under the law of this state or any return or return information required by the Internal Revenue Code when the information or return is received from the Internal Revenue Service or submitted by the taxpayer as provided by the laws of this state. Nothing contained in this Code section shall be construed to prohibit the print or electronic publication of statistics so presented as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General or other legal representative of the state, or use as evidence, of the report or return of a taxpayer in the event of any action or proceeding involving any tax liability of the taxpayer. Reports and returns shall be preserved for three years and thereafter until the commissioner orders them to be destroyed.
  2. The commissioner may permit the commissioner of internal revenue of the United States, the proper officer of any state imposing an income tax similar to that imposed by this chapter, or the authorized representative of either such officer to inspect the income tax returns of any taxpayer, or may furnish to the officer or his authorized representative an abstract of the return of income of any taxpayer or supply him with information concerning any item of income contained in any return or disclosed by the report of any investigation of the income or return of income of any taxpayer. The permission shall be granted or the information shall be furnished to the officer or his representative only if:
    1. The request is only for state tax information including federal tax information required by the state to be filed by the taxpayer with his state return;
    2. The requested information will be used solely for tax purposes;
    3. The requesting state has a confidentiality statute which complies with the requirements of Section 6103(p)(8) of the Internal Revenue Code; and
    4. The statutes of the United States or of such other state, as the case may be, grant substantially similar privileges to the proper officer of this state charged with the administration of this chapter.
  3. The commissioner may permit the disclosure of inventories, depreciable assets, accumulated depreciation, and book value of depreciable assets to local tax authorities in this state to be used solely for ad valorem tax purposes, provided that the furnishing of the information is not prohibited by Section 6103 of the Internal Revenue Code; and provided, further, that the furnishing of the information to the local tax authorities shall not be deemed to change the confidential character of the information, and any persons receiving the information pursuant to this subsection shall be subject to Code Section 48-7-61, relating to the sanctions to be imposed for the unauthorized disclosure of confidential material.
  4. 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 where 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.
  5. Notwithstanding any other law, this Code section shall remain in full force and effect unless specific reference is made in such other law to this Code section and to the disclosure of income tax information contained in any report or return required under this Code section.

(Code 1933, § 91A-3711, enacted by Ga. L. 1979, p. 5, § 72; Ga. L. 1982, p. 3, § 48; Ga. L. 1987, p. 191, § 9; Ga. L. 2002, p. 372, § 7; Ga. L. 2010, p. 838, § 11/SB 388; Ga. L. 2011, p. 297, § 4/HB 346.)

Cross references.

- Failure of Senators to file state income tax returns, § 28-1-8.1.

Inspection of public records generally, § 50-18-70 et seq.

Editor's notes.

- Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Administrative Rules and Regulations.

- Inspection of records, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Organization, § 560-1-1-.05.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 92-3216, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Legislative purpose.

- Legislative purpose of this section is to encourage voluntary and truthful reporting of income by ensuring confidentiality. The strict language of the statute and the severe penalty for defaulting from the statute's mandates emphasize a clear policy favoring nondisclosure. Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

Purpose of exceptions to confidentiality of tax information.

- It is clear from the exceptions to the law that the confidentiality of tax returns was not absolute and that the social policy underlying the law providing for confidentiality of tax returns inured 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) (decided under former Code 1933, § 92-3216).

Open Records Act, O.C.G.A. § 50-18-70, has not abrogated the mandate of O.C.G.A. § 48-7-60 that tax information be maintained inviolate. Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995).

Permissible grounds for release of tax information.

- No "proper judicial order" can be made except in an event when the integrity of the report itself is attacked or defended as the main and not as a merely collateral issue. Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

By "proper judicial order" a court may require employees of the department to produce income tax returns and reports only when such returns are directly in issue. Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

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, it cannot defeat the need for evidence in pending criminal proceedings based upon a generalized interest in confidentiality, and particularly 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) (decided under former Code 1933, § 92-3216).

Income tax director's motion to quash a subpoena for the production of tax returns of the deceased for use in a probate court proceeding to determine the existence of a common law marriage should have been granted because the proceeding did not involve the integrity of the returns. Goolsby v. Estate of Williams, 243 Ga. App. 890, 534 S.E.2d 559 (2000).

Real property ad valorem records subject to Open Records Law.

- Real property ad valorem digest, returns, and related records, not having been made confidential by O.C.G.A. § 48-7-60 or other sections, are, prima facie, subject to the provisions of the Open Records Law, O.C.G.A. § 50-18-70. Pensyl v. Peach County, 252 Ga. 450, 314 S.E.2d 434 (1984).

Illegal to conduct audits solely to uncover criminal activity.

- If the plaintiffs could show that Department of Revenue employees, acting for the commissioner, were engaged in a series of audits conducted solely to uncover criminal activity unrelated to tax improprieties on the part of the person audited, such conduct would be illegal and would constitute grounds for the issuance of an injunction against such employees. Willis v. Department of Revenue, 255 Ga. 649, 340 S.E.2d 591 (1986).

Cited in Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828, 815 S.E.2d 841 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-3216, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Legislative purpose.

- The purpose of former Code 1933, §§ 92-3216 and 91A-212 (see now O.C.G.A. §§ 48-7-60 and48-2-15, respectively) was to encourage taxpayers to fully disclose the taxpayers' income and to protect any confidential information with reference to the taxpayers' business which it was essential to divulge in an income tax return; it was 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 (decided under former Code 1933, § 92-3216).

Construction with other provisions.

- Former Code 1933, §§ 92-3216 and 91A-212 (see now O.C.G.A. §§ 48-7-60 and48-2-15, respectively) must be construed together. 1954-56 Op. Att'y Gen. p. 767 (decided under former Code 1933, § 92-3216).

Permissible grounds for release of tax information.

- Former Code 1933, §§ 91A-212, 91A-9932.1, 92-3216 and 92-9914 (see now O.C.G.A. §§ 48-2-15,48-7-60, and48-7-61) did not authorize the release of tax information for use 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 (decided under former Code 1933, § 92-3216).

Disclosure of information which is neither secret nor confidential.

- Prohibition contained in former Code 1933, § 92-3216 applied only to divulging the amount of income or particulars set forth or disclosed in an income tax report or return required by law. The listing of worthless checks, their amount, and the person issuing the same in an official audit of the department made by the state auditor did not come within the prohibition contained in former Code 1933, § 92-3216. Former Code 1933, § 40-1805 (see now O.C.G.A. § 50-6-24) made it mandatory upon the state auditor to list and call special attention to all irregularities found in an examination of a department of the state government and to make available for the information of the public, through the press, such transactions, and for the further information of the public officials of the state charged with the responsibility of instituting legal action for violations of state laws. 1950-51 Op. Att'y Gen. p. 358 (decided under former Code 1933, § 92-3216).

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 (decided under former Code 1933, § 92-3216).

Neither former Code 1933, §§ 92-3216 and 91A-212 (see now O.C.G.A. §§ 48-7-60 and48-2-15, respectively) made income tax returns privileged or confidential as to the commissioner, the commissioner's agents, or other persons who properly have access to the returns for use in the administration and the enforcement of any tax. 1965-66 Op. Att'y Gen. No. 66-225 (decided under former Code 1933, § 92-3216).

County board of tax assessors in the discharge of the boards' 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 (decided under former Code 1933, § 92-3216).

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 (decided under former Code 1933, § 92-3216).

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 of the information onto punch cards if certain restrictions are followed. 1960-61 Op. Att'y Gen. p. 538 (decided under former Code 1933, § 92-3216).

RESEARCH REFERENCES

Am. Jur. 2d.

- 71 Am. Jur. 2d, State and Local Taxation, § 464.

ALR.

- Constitutionality, construction, and application of statutory provisions regarding publicity or confidential and privileged character of income tax information or returns, 151 A.L.R. 1049.


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