NOT TO BE PUBLISHED
January 31, 1995
In re: Donald H. Vish/Kentucky Revenue Cabinet
OPEN RECORDS DECISION
On behalf of his client, Dominion Trust Company of Roanoke, Virginia, Executor of the Estate of Mr. Eugene Bane, Mr. Donald H. Vish challenges the Kentucky Revenue Cabinet's denial of his request for all unmined mineral tax returns filed by Flannery Coal and Land Company, Apache Coal Company, and Bane Mining Company. In his request, Mr. Vish explains that the unmined mineral tax returns filed by these companies constitute evidence of Mr. Bane's holdings at the time of his death. The trust company needs this information to discharge its duties in probating Mr. Bane's estate. It is Mr. Vish's position that because the executor is responsible for filing tax returns, "Dominion Trust Company stands in the shoes of the taxpayer for purposes of this request."
Relying on KRS 61.878(1)(a), (h), and (k), now codified and hereinafter referred to as KRS 61.878()1)(a), (i), and (l), and KRS 131.190, 131.081(15), and 133.047, the Revenue Cabinet denied Mr. Vish's request. Mr. Douglas M. Dowell, Attorney Manager, stated that the Cabinet did not consider the executor of an estate an agent of the partnership or corporation. Accordingly, Mr. Dowell advised Mr. Vish that in order to secure access to these returns the executor would have to obtain written authorization from the former partners, officers of each corporation, and lessees who might have filed informational returns for the companies. Acknowledging that nothing in KRS 131.190, 131.081(15), and 133.047 precludes the Cabinet from "furnishing any taxpayer or his properly authorized agent with information respecting his own return," Mr. Dowell proceeded to refute Mr. Vish's assertion that the executor is an authorized agent of Flannery Coal and Land Company or Bane Mining Company. We concur with Mr. Dowell in the views he expresses, and affirm the Cabinet's denial of Mr. Vish's request.
KRS 61.878(1)(l) exempts from the mandatory disclosure provisions of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This provision operates in tandem with KRS 131.190(1) to preclude any present or former Revenue Cabinet employee from divulging:
[A]ny information acquired by him of the affairs of any person, or information regarding the tax schedules, returns or reports required to be filed with the Cabinet or other proper officer . . . .
See also, KRS 131.081(15) (providing that no information pertaining to Kentucky tax returns and reports may be divulged by the Revenue Cabinet); KRS 133.047 (providing that personal property tax returns, real property tax returns, and any accompanying documents must be treated as confidential under the provisions of KRS 131.190). As Mr. Dowell observes, these provisions do not prohibit the Cabinet from furnishing a taxpayer, or the taxpayer's properly authorized agent, information relating to his own return. The question presented is, therefore, whether Dominion Trust Company is an authorized agent for Flannery Coal and Land Company, in which Mr. Bane was a partner, or Bane Mining Company, in which he was an officer and a shareholder, and thus entitled to access to the unmined mineral tax returns filed by these companies.
In a recent decision, this office recognized:
Although KRS 131.190(1) has been the subject of a number of past open records, this office has not had occasion to address the specific question raised in this appeal. We have, however, 'consistently recognized that much but not all of the material generated in the administration of tax statutes and ordinances is privileged and not subject to public inspection.' OAG 86-11, p. 3. Records pertaining to the affairs of the business of a particular gas company, such as the amount of taxes paid or the amount of gas extracted, can only be released to the company or its properly authorized agent.
93-ORD-130, p. 4. We believe that the reasoning of this decision can be extended to the present appeal.
We have examined the authorities cited by Mr. Dowell, and find that they support the Cabinet's position relative to the executor's failure to qualify as an authorized agent of the respective mining companies. Those arguments are set forth at page 2 of Mr. Dowell's letter to Mr. Vish, and are incorporated herein by reference. The Revenue Cabinet having met the statutory burden of proof imposed on it by KRS 61.880(2), and the requester having failed to cite any contrary authority in support of its assertion that the Dominion Trust Company is an authorized agent for Flannery Coal and Land Company and Bane Mining Company, we find that the Cabinet properly denied Mr. Vish's request.
Mr. Vish may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Douglas M. Dowell
Division of Legal Services
P.O. Box 423
Frankfort, KY 40602
Hon. Donald H. Vish
Brown, Todd & Heyburn
2700 Lexington Financial Center
Lexington, KY 40507-1749