TAXATION: REVIEW OF LOCAL TAXES
[Hon. Ross A. Mugler]
[City of Hampton Commissioner of the Revenue]
November 22, 1999
You ask whether the information on a distress warrant issued by a
local tax collector pursuant to § 58.1-394 1
of the Code of Virginia1 must be disclosed in response to a request
under The Virginia Freedom of Information Act2
("Act") or whether the information is protected from disclosure under
§ 58.1-3.3 You state that the
distress warrant contains the delinquent taxpayer's name and address,
the type of tax, and the amount of the delinquency.
Section 2.1-342(A) of the Act provides that "[e]xcept as
otherwise specifically provided by law, all public records shall be
open to inspection and copying by any citizens of the Commonwealth."
A distress warrant is clearly a public record encompassed within the
Act4 and must be disclosed unless an
exception applies. Section 2.1-342.01(A)(2) excepts from the Act
"confidential tax records held pursuant to § 58.1-3." Section
Except in accordance with a proper judicial
order or as otherwise provided by law, the commissioner
of the revenue, treasurer, or any other state or local tax or
revenue officer or employee 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
The prohibition does not apply to "[m]atters required by
law to be entered on any public assessment roll or book"5
or "[a]cts performed or words spoken or published in the line
of duty under the law."6 A violation of
the confidentiality provisions of § 58.1-3 constitutes a Class 2
misdemeanor.7 In accordance with the
language of § 58.1-3(A), the information on a distress warrant
would be deemed confidential to the extent the information would
reveal, either directly or indirectly, "the transactions, property,
income or business of any person, firm or corporation" and to
the extent the information is neither "required by law"8
to be entered on a public assessment book nor "published in the line
of duty under the law."9 Prior opinions
of the Attorney General conclude that, while the fact of delinquency
in the payment of taxes is not confidential tax information under
§ 58.1-3,10 the amount of the
delinquency is confidential when the tax is based on gross receipts
because its disclosure would reveal the amount of business
done.11 Thus, the amount of the
delinquency may not be disclosed in response to a request under the
Act unless one of the exceptions in § 58.1-3 applies. The
exception for matters required to be entered on a public assessment
roll or book does not apply to gross receipts taxes. Moreover, while
a tax collector is authorized to issue a distress warrant, I do not
view the amount of a tax delinquency stated on the distress warrant
as constituting "words published in the line of duty under the
law."12 The line of duty exception
allows tax officials to disclose information to other such officers
and employees.13 It does not authorize
the disclosure of the information to third parties.14
Whether a distress warrant related to taxes other than gross receipts
taxes would be deemed confidential will depend on the particular
facts, including the information that is on the warrant, the extent
to which the information constitutes confidential taxpayer
information, and whether the information fits within any of the
exceptions set out in § 58.1-3.15
1. The first sentence of § 58.1-3941 provides
that "[a]ny good or chattels, money and bank notes in the
county, city or town belonging to the person or estate assessed with
taxes, levies or other charges collected by the treasurer may be
distrained therefor by the treasurer, sheriff, constable or
collector." As stated in prior opinions, §§ 58.1-3941 and
58.1-3919 authorize a local treasurer to issue a distress warrant or
letter without the necessity of a judicial proceeding. See Op. Va.
Att'y Gen.: 1997 at 203, 204; 1990 at 249, 250; 1953-1954 at 204
(citing predecessor statutes to §§ 58.1-3919,
2. Sections 2.1-340 to 2.1-346.1.
3. Section 2.1-118 permits the Attorney General to
issue opinions to a commissioner of the revenue only when the
question is directly related to the duties of the commissioner.
Although distress warrants are issued by the treasurer or other
collector, I assume for purposes of this opinion that the distress
warrants are in your possession and are connected with the
performance of your duties as commissioner of the revenue.
4. Section 2.1-341 defines "public records" to
include "all writings prepared or owned by, or in the
possession of a public body or its officers, employees or agents in
the transaction of public business."
5. Section 58.1-3(A)(1).
6. Section 58.1-3(A)(2). Section 58.1-3 includes
numerous other instances in which taxpayer information may be
provided. See § 58.1-3(A)(3)-(5), (B)-(E).
7. Section 58.1-3(A).
8. Section 58.1-3(A)(1).
9. Section 58.1-3(A)(2); see 1993
Op. Va. Att'y Gen. 217, 219 (information prohibited from
disclosure under § 58.1-3 is not to be disclosed under Act).
10. Section 58.1-3(B) states: "Nothing contained
in this section shall be construed to prohibit the publication
of delinquent lists showing the names of taxpayers who are currently
delinquent, together with any relevant information which in the
opinion of the Department [of Taxation] may assist in the
collection of such delinquent taxes."
11. See Op. Va. Att'y Gen.: 1993,
supra, at 220 (local tax official may reveal identity of taxpayer
delinquent in payment of business license tax but may not reveal
amount of delinquency); 1992 at 157, 160 (local tax officials may not
disclose amount of delinquent meals tax because such disclosure would
reveal volume of business done for time period); see also 1989
Op. Va. Att'y Gen.304, 305 (commissioner of revenue may not
disclose amount of tax paid by coal companies subject to gross
receipts tax under § 58.1-3712 because it would reveal amount of
12. Section 58.1-3(A)(2).
13. See 1984-1985 Op. Va. Att'y Gen. 397, 398,
and opinions cited therein.
14. Because the purpose of § 58.1-3 is to
protect the taxpayer from the disclosure of confidential tax
information to third parties, the fact that the distress warrant has
been served on the delinquent taxpayer would not operate to authorize
disclosure to third parties. See 1984-1985 Op. Va. Att'y Gen., supra,
at 398 (commissioner of revenue may describe taxpayer's property on
tax bill sent to taxpayer but should not describe on personal
property tax book available to public except to extent necessary to
satisfy statute); see also op. to Hon. Marsha Compton Fielder,
Roanoke Comm'r Rev. (Jan. 20, 1999) (information regarding make,
model and assessed value of vehicle may not be disclosed unless line
of duty exception applies).
15. A prior opinion concludes that if a local tax
official receives a request pursuant to the Act for an existing
record containing the names of delinquent taxpayers and the amount of
the delinquency, the official should delete the amount of the
delinquency before disclosing the document. See 1992 Op. Va. Att'y
Gen., supra note 11, at 160 n.1; see also § 2.1-342(A)(3)
(public body may "delete or excise" only portion of public record to
which exemption applies and shall disclose remainder of record).