DOR tax credit certificates and acknowledgemetns

To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10, I hereby request the following records:

-- Copies of all records created by the Department of Revenue since Jan. 1, 2015 that record the transfer/sale of a Massachusetts tax credit from one party to another. This should include communications sent from the DOR to the interested parties, individual records created for internal use by the DOR, and/or databases/spreadsheets used to track the transfer of credits. In the case of databases, please provide all available data and not just data entered on or after Jan. 1, 2015. Please note, I am not requesting information filed by a taxpayer, individual or corporate, with the DOR.

I also ask that all fees be waived as I am a journalist employed by the Lowell Sun and I intend to use the requested records to publish articles in the public interest and not for any commercial purposes. I would prefer the request be filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Todd Feathers

Hello,

I am writing to appeal the Department of Revenue's rejection of my Sept. 23 request for:

"Copies of all records created by the Department of Revenue since Jan. 1, 2015 that record the transfer/sale of a Massachusetts tax credit from one party to another. This should include communications sent from the DOR to the interested parties, individual records created for internal use by the DOR, and/or databases/spreadsheets used to track the transfer of credits. In the case of databases, please provide all available data and not just data entered on or after Jan. 1, 2015. Please note, I am not requesting information filed by a taxpayer, individual or corporate, with the DOR."

On Sept. 27, the department responded by rejecting my request, citing a supposed statutory exemption contained in M.G.L. Chapter 62c, Section 21a. An attorney for the department, Roger H. Randall, wrote that:

"You write that you are not requesting information filed by an individual or corporate taxpayer, but transfer statements and any Department record developed therefrom are indeed a document filed with the commissioner as that term is used in G.L. chapter 62C, § 21(a), and 830 CMR 62C.21.1(2), and therefore forbidden from being disclosed..."

I disagree with the assertion that a record under the custodianship of the DOR is exempted from disclosure by G.L. Chapter 62C, § 21(a) simply because it contains information that is also contained in a tax return, and I ask that the Supervisor of Records instruct the DOR to produce the records I have requested.

While Massachusetts courts have consistently held that an individual's or corporation's tax returns are not subject to the public records law, they have been careful to state that G.L. Chapter 62C, § 21(a) is not a blanket exemption for all tax-related information. In Hastings & Sons Publishing Company vs. City Treasurer of Lynn (1978), the Supreme Judicial Court found that payroll information of public employees was not protected by G.L. Chapter 62C, § 21(a), even though the same information could be found in an individual's tax return.

"information contained in those payroll records can also be found in tax returns. Nevertheless, we find no conflict between the legislative policies to disclose city payroll records and to protect the confidentiality of tax returns; payroll records and tax returns serve different purposes and reveal different facts...," the court wrote.

The DOR contends that because taxpayers are required to file information about the transfer or sale of tax credits in their returns, any DOR records about the transfer and sale of tax credits are to be withheld from the public. But in many other cases, the DOR discloses information that was gleaned from tax returns. Perhaps the most obvious example is the annual report the DOR releases to the public on the tax credits it has issued during the previous fiscal year.

Recipients of tax credits, such as the Low Income Housing Tax Credit (LiHTC), are required to file documents pertaining to their tax credit in their annual returns. In the case of LiHTC, taxpayers are also required to file documentation about the specific development for which they received the credit (760 CMR 54). If the argument put forward by the DOR in the case of my request were true, then the DOR would be in violation of the law when it released its annual reports detailing every project that received a LiHTC or other credit. This is clearly not the position of attorney Randall, however, given that he included a link to those annual reports in his denial of my request.

Randall writes that "any Department record developed" from information included in individual or corporate tax returns is forbidden from disclosure. But as illustrated in the above example and in numerous other cases (consider, for example, that any information the DOR releases about annual revenues to the legislature or public is derived from tax returns) this is not a consistent, common, or statutorily mandated practice. The purpose of M.G.L. Chapter 62c, Section 21a is to protect sensitive information in tax returns, not create a black hole out of which no information about the government's taxing power is released to the public.

Serious consideration should be paid to the value of the requested records to the public. As stated in the Hastings decision, information that happens to be included in tax returns can still be subject to disclosure if it "serve(s) different purposes and reveal(s) different facts" than the whole of the return. A payroll record, as was discussed in Hastings, is clearly valuable information that should be disclosed to the public because it documents the use of a government asset (i.e., money). Likewise, a Massachusetts tax credit is a government asset that is given to an individual or corporation in exchange for a service rendered. The public has a strong interest in knowing who holds those government assets.

i therefore ask you to overturn the DOR's rejection of my request and instruct the agency to provide me with the requested records in as timely a fashion as is possible.

Thank you very much for your time and consideration,
Todd Feathers