Q. I have a hearing coming up involving my ex-wife's request to modify
spousal and child support. I've received a letter from her attorney
demanding I bring my 2010 tax returns to court. I don't want to produce these. I've always thought that these
are confidential and that I cannot be made to produce them if I am not
trying to borrow money or something like that. What are my rights?
A. The Revenue and Taxation Code sections 14251 and 19542 do declare that
our income tax records are generally privileged from disclosure. However,
in California that privilege does not bar production and consideration
of your income tax records according to
Family Code §3552 in proceedings involving any kind of support requests.
They are always available in discovery proceedings prior to the hearing itself.
prohibits the other side from disclosing the contents of your tax returns
to anyone except:
However, what I do recommend is an agreement with the other party or their
attorney that while the records may be voluntarily exchanged that they
be disposed of or returned after the hearing. Always redact your social
security number. Note that Family Code §3665(b)
- the court
- the party's accountant
- some other financial consultant providing assistance with the case
- anybody else the court specifically approves
Of course, once you lose possession of them there is little practical way
to enforce these limitations. This is a good reason to not simply hand
them over in response to an informal request without safeguards in place.
Since you report that you were asked to bring them in a letter request
rather than in response to a subpoena or some other form of discovery
request that seek the returns prior to the hearing itself, you might hold
on to them until the hearing. If they are to be discussed at the hearing
(or if you don't exchange them before because no agreement can be
reached on how to protect their confidentiality), then bring them but
ask the court under FC section 3552(c) to seal them in the file if the
court retains them, or to turn them back to you at the conclusion of the
hearing. An advantage to you in handling it this way is that the other
party won't have the benefit of reviewing them before the hearing,
or have the prior opportunity to have them looked at by their expert.
Obviously, for parties who want to see the other side's returns they
are better off obtaining them prior through a demand for production (assuming
enough time exists since without a court order shortening time production
demands don't have to be answered earlier than 35 days from the date
of mailing), and receiving on the date of the hearing might justify asking
the court to continue the matter to review them if they are complicated.
By the way, the rules are a little different if you file joint returns,
or if your returns contain information that relates to a non-party like
a new spouse or possibly a family corporation or LLC that you are only
one of several participants of, since their information remains privileged
and can only be produced under certain circumstances and using specific
procedures - which is another Blog.
Thurman W. Arnold, III