16 Misc. 2d 1043 | N.Y. Sur. Ct. | 1959
Among other items in the account filed, the amount of attorney’s fees paid is attacked, as is a certain compromise of income tax liability. The objectant, having subpoenaed the New York State Tax Commission’s income tax files relating to the decedent, sought to introduce into evidence two items, namely, a record of telephone calls and time spent
The right-of governmental agencies and departments to withhold information in judicial, quasi-judicial and legislative proceedings iñ. a variety of situations has evoked widespread interest (107 U. of Pa. L. Eev. 166, “ Governmental Nondisclosure in Judicial Proceedings ”).
In judicial proceedings, the respective rights have been clearly placed in proper perspective by the Court of Appeals in Matter of Bakers Mut. Ins. Co. (Dept. of Health) (301 N. Y. 21) where it said (p. 27): “ The right to resort to means competent to compel the production of written as well as oral testimony has long been regarded as not less than essential to the very existence and constitution of a court at common law. But persons subpoenaed may nevertheless assert against the compulsion of such process whatever privileges they may enjoy under the common law or by statute (see American Lithographic Co. v. Werck
Although the Court of Appeals has indicated that it is not proper for the courts to speculate as to the reasons motivating the Legislature in enacting the prohibitions against disclosure by governmental agencies, the sound basis behind such enactments as section 384 has already been explored by our courts and found salutary. (Matter of Manufacturers Trust Co. v. Browne, 269 App. Div. 108, affd. 296 N. Y. 549; Matter of People v. Johnson & Co., 213 App. Div. 402.)
“ The object of the secrecy provisions is to assure every taxpayer making returns that the information therein contained will remain confidential and will be used only for the purpose of computing his tax. The statute indicates a legislative- determination that such returns shall not be used as evidence in the ordinary case and shall not, without the taxpayer’s consent, be employed for any purpose other than that stated in the statute ” (Manufacturers Trust Co. v. Browne, supra, p. 113; see, also, 8 Wigmore, Evidence [3d ed., 1940], § 2377, p. 761).
Under section 384, the prohibition against disclosure “ Except in accordance with proper judicial order ” refers to such an order in the specific actions or proceedings mentioned by the section itself.
“ It would also justify an order for publicity in proceedings affecting the truthfulness, validity and legality of the report itself, as for example, in a criminal prosecution for forgery or perjury arising out of a false report.
‘ But in my opinion 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.
‘ To permit the use of such reports in an ordinary case is to destroy the secrecy attaching to them and to break down the protection which the statute gives to taxpayers in the disclosure of their most intimate business affairs to the taxing power.” (Matter of People v. Johnson & Co., 213 App. Div. 402, 405, supra.)
The report of the examiner determining the income tax is offered to substantiate the charge of negligence on the part of