830 CMR: DEPARTMENT OF REVENUE
830 CMR 62C.00: STATE TAX ADMINISTRATION
830 CMR 62C.21.1 is repealed and replaced with the following:
830 CMR 62C.21.1: Confidentiality of Tax Information

(1) General. The Commissioner, or any deputy, assistant, clerk or assessor, or other employee of the Commonwealth or of any city or town therein, or any employee of a bank designated as a depository and fiscal agent of the Commonwealth under M.G.L. c. 62C, § 45, shall not disclose to any person but the taxpayer or his representative, any information contained in or set forth by any return or document filed with the Commissioner, other than the name and address of the person filing it, except in proceedings or other activities to determine or collect the tax or for the purpose of criminal prosecution under M.G.L. c. 62C or under the statutes referred to in M.G.L. c. 62C, § 2. (For exceptions see 830 CMR 62C.21.1(5)).

(2) Definitions.

Depository Bank. Any bank which is designated by the Commissioner and approved by the State Treasurer as a depository and fiscal agent of the Commonwealth for the purpose of receiving any tax, pursuant to M.G.L. c. 62C, § 45.

Inspect. Permission to inspect a tax return shall include permission to receive copies of the tax return upon payment of the required fee.

Returns. For the purposes of 830 CMR 62C.21.1(1)-(4) and 830 CMR 62C.21.1(6), a return is any tax return, tax information or declaration together with any schedules, lists or other statements designed to supplement or to become a part of such return, which are filed with the Commissioner. For the purposes of 830 CMR 62C.21.1(1) and 830 CMR 62C.21.1(6) only, a return includes information developed by the Department of Revenue based on material filed, or required to be filed, with the Commissioner, or based on information received from the Internal Revenue Service or any other taxing authority or derived from any other source.

Taxpayer. A taxpayer is a person who has filed a return or who is required to file a return, or a person against whom a tax has been assessed or to whom a notice of intention to assess a tax has been issued.

(3) Records. The Commissioner shall keep records of persons who are granted access to, or given copies of, returns. Such records shall contain.

(a) The name and address of the person who has been granted access to, or given copies of returns;

(b) The representative capacity of such person, if not the taxpayer;

(c) The date of disclosure;

(d) The name of the taxpayer(s);

(e) The type of returns; and

(f) The taxable periods involved.

Such records shall be considered tax information under 830 CMR 62C.21.1(2).

(4) Inspection by Certain Classes of Persons. The following returns shall be open to inspection, as hereinafter provided, by certain classes of persons, who, for the purposes of 830 CMR 62C.21.1(1), shall be considered the taxpayer or representatives of the taxpayer.

(a) Individual returns. All returns filed on behalf of an individual shall be open to inspection.

1. By the individual for whom the return was made.

2. By certain fiduciaries as follows:

The administrator, executor, guardian, or conservator of the estate of a deceased or legally incompetent taxpayer shall be permitted to inspect the returns of the taxpayer. A properly authorized employee of a corporate fiduciary shall be permitted the rights of inspection of such fiduciary. Satisfactory evidence of appointment as fiduciary, such as a current certified copy of the court appointment, must be furnished. A fiduciary, during the period of his appointment, shall be permitted to inspect all returns of the taxpayer or his estate to the extent necessary for the discharge of the duties of such fiduciary;

3. By a receiver or trustee in bankruptcy. A receiver or trustee in bankruptcy of the estate of a bankrupt taxpayer shall be permitted to inspect the returns of such taxpayer. Satisfactory evidence of such appointment, such as a current certified copy of the court order appointing the receiver or trustee, must be furnished. He shall be permitted, during the period of his appointment, to inspect all of the returns of the taxpayer to the extent necessary for the discharge of his duties. The receiver or trustee in bankruptcy may inspect returns made by prior receivers or trustees of the taxpayer's property.

4. By an attorney of the taxpayer or of his representative. An attorney in fact of the taxpayer or of any representatives qualifying as such under 830 CMR 62C.21.1(4)(a)2 and 830 CMR 62C.21.1(4)(a)3 shall be permitted to inspect the returns of the taxpayer or representatives upon production of written evidence of authorization, such as a letter of authorization from the taxpayer or representative, or an appropriate and current power of attorney. The attorney in fact acting for and on behalf of the taxpayer or representative, and acting for and on behalf of no other interested party shall be permitted to inspect only such returns as the taxpayer or representative specifically allows, in the written letter of authorization; or as relate to his duties on tax matters for which he is so authorized to represent the taxpayer or representative. Where appropriate, a person may be determined by the Commissioner to be the attorney in fact of the taxpayer where there is less formal evidence of authority.

(b) Corporate returns. All returns filed on behalf of a corporation shall be open to inspection.

1. By a duly authorized officer of the corporation or their designee,; and, if the corporation has been dissolved, by the most recently elected president or treasurer of the corporation, or their designee;

2. By the receiver or trustee in bankruptcy, or their attorney, subject to the requirements and restrictions set forth for such representative in 830 CMR 62C.21.1(4)(a)3. and 830 CMR 62C.21.1(4)(a)4.; or

3. By the attorney for the corporation, subject to the requirements and restrictions set forth for such representative in 830 CMR 62C.21.1(4)(a)4.

(c) Joint returns. Joint income tax returns filed pursuant to M.G.L. c. 62C, § 6 shall be open to inspection.

1. By either spouse for whom the return was made;

2. If either spouse has died, become legally incompetent, or bankrupt, by the executor, administrator, conservator, guardian, receiver or trustee in bankruptcy of the estate of such spouse, subject to the requirements and restrictions set forth in 830 CMR 62C.21.1(4)(a)2. and 830 CMR 62C.21.1(4)(a)3.; or

3. By the attorney in fact of either spouse, or of a representative, subject to the requirements and restrictions set forth in 830 CMR 62C.21.1(4)(a)4.

(d) Partnership return. All returns filed by a partnership, including, but not limited to, income tax returns of a partnership (M.G.L. c. 62C, § 7), shall be open to inspection.

1. By any person who was a partner during any part of the period covered by the return;

2. If a partner has died, become legally incompetent or bankrupt, by the executor, administrator, conservator, guardian, receiver or trustee in bankruptcy of the estate of such partner, subject to the requirements and restrictions set forth in 830 CMR 62C.21.1(4)(a)2. and 830 CMR 62C.21.1(4)(a)3.; or

3. By the attorney in fact of a partner, or of a representative, subject to the requirements and restrictions set forth in 830 CMR 62C.21.1(4)(a)4.

(5) Exceptions to Prohibitions on Disclosure.

(a) Processing by a depository bank of returns and tax payments. Subject to the following restrictions on the use of information by employees of the depository, the prohibition against disclosure does not prevent an employee of a depository bank ("bank") which is processing tax returns and payments pursuant to M.G.L. c. 62C, §45A, from having such access to tax returns and documents as is reasonably required for such processing.

1. Employees of the bank will not disclose any information contained in a return or document except to other authorized bank employees engaged in processing or to authorized employees of the Department of Revenue. The Commissioner will authorize in writing the Department of Revenue employees who will receive the information.

2. The bank will give the Commissioner a list of all employees of the bank who will have access to returns or documents and will promptly notify the Commissioner in writing of any changes in the list of employees who will have access to the information.

3. Employees of the bank will use such information only as required in performing their duties for the Department of Revenue and will not copy, reproduce, retain or store any information except as instructed in writing by the Commissioner.

4. Returns and documents acquired by the bank will remain the property of the Department of Revenue; the bank will promptly turn over such materials to the Department at the request of the Commissioner.

(b) Information regarding licenses issued by the Commissioner, the minimum pricing of cigarettes, and other related non-tax information. The Commissioner performs certain functions unrelated to the assessment or collection of taxes, including issuing licenses under M.G.L. c. 62C, § 67 to dealers in various commodities; appointing stampers to buy cigarette stamps from the Commissioner under M.G.L. c. 64C, § 30; enforcing M.G.L. c. 64C, §§ 12 through 20, relating to the price of cigarettes; and assisting other state agencies in implementing and enforcing the fire-safe cigarette law, M.G.L. c. 64C, §§ 2A through 2F, and the Tobacco Master Settlement Agreement of November 1998. Because the considerations that require the confidentiality of tax information do not apply to these non-tax functions, the prohibition against disclosure does not prevent the disclosure by the Department of the following information.

1. The Commissioner may disclose the name and business addresses of any person holding a license issued under M.G.L. c. 62C, § 67 or an appointment as a cigarette stamper, and any information appearing on the face of the license or appointment document, including , without limitation , the date of issue or expiration of the license or appointment and the license number; provided, however, that the Commissioner may not disclose other information submitted with an application for a license or for a stamper appointment or any tax identification number on the license or stamper appointment document, unless the disclosure of the tax identification number is to another federal or state agency and is in accordance with state and federal law.

2. The Commissioner may disclose information relating to the Commissioner's suspension or revocation of a license or cigarette stamper appointment, including, without limitation, the date of issue, expiration, revocation, or suspension of a license or appointment, and the date of termination of any suspension; provided, however, that the Commissioner may not disclose the reason for suspension or revocation of a license or cigarette stamper appointment.

3. The Commissioner may disclose the name and address of a stamper to which the Commissioner sold a specified cigarette stamp.

4. The Commissioner may disclose the following information relating to a cigarette licensee for which, pursuant to M.G.L. c. 64C, § 13, the Commissioner approved a cigarette price lower than the presumptive cost:

a. the name of the licensee and the address appearing on the license;

b. the date of the Commissioner's approval and the expiration date of the approval; and

c. the price approved by the Commissioner, whether the price is for wholesale or retail sales, whether the price is for cartons or packs of cigarettes, and any other conditions on the approval; provided, however, that the Commissioner may not disclose any other information submitted by the licensee to the Commissioner in connection with its claim that its costs are lower than the presumptive cost.

5. If a cigarette licensee claims to be meeting the prices of a competitor under M.G.L. c. 64C, § 16, the Commissioner may disclose, without limitation, the following:

a. the name of the competitor and the address appearing on its license, the relevant cigarette prices charged by the competitor to the extent known by the Department, and any other information cited by the licensee in support of its claim or deemed relevant by the Commissioner; and

b. the name of the licensee claiming to be meeting the price of a competitor and the address appearing on its license, the relevant cigarette prices charged by the licensee to the extent known by the Department, and any other information deemed relevant by the Commissioner.

6. The Department may publish the information referred to in clauses 1 through 5 in a newspaper, on its website, or by any other means.

7. The Commissioner may disclose such information to officials within the Executive Office of Public Safety that the Commissioner deems relevant or necessary to assist the officials in enforcing the fire-safe cigarette law, M.G.L. c. 64C, §§ 2A through 2F.

8. The Commissioner may disclose such information to the Office of the Attorney General that the Commissioner deems relevant or necessary to assist the Attorney General in enforcing the Tobacco Master Settlement Agreement of November 1998 and in representing the Commonwealth in any litigation, mediation, or arbitration related thereto.

(c) Proceedings to determine or collect the tax. Tax information may be disclosed in proceedings or activities to determine or collect the tax, such as proceedings before federal or state courts, or administrative bodies. For the sole purpose of facilitating the collection of the tax, a tax liability may be disclosed to a person determined by the Commissioner to have a direct interest in discharging the liability, and upon a showing that such person cannot first obtain the information elsewhere. The Commissioner must be reasonably satisfied that such person is legitimately interested in the discharge of the liability, and the Commissioner may require that a request for disclosure be made in writing setting forth the reasons why such person is a legitimate party in interest. Examples of those with a direct interest for purposes of this subsection are:

1. A person who has acquired or intends to acquire an interest in real or personal property subject to a lien, recorded or unrecorded, imposed under M.G.L. c. 62C, §50; or,

2. A person requesting a waiver of a lien pursuant to M.G.L. c. 62C, § 51, or a certificate of good standing pursuant to M.G.L. c. 62C, §52, when acquiring an interest in the assets of a corporation; or,

3. A person requesting a certificate of payment of a tax pursuant to M.G.L. c. 65, §44 when purchasing a business or stock of goods from a vendor liable for any sales or use tax under M.G.L. c. 64H or 64I.

(d) For the purpose of criminal prosecution. The prohibition against disclosure in this regulation does not apply to disclosure for the purpose of criminal prosecution pursuant to the administration of M.G.L. c. 62C or pursuant to statutes referred to in M.G.L. c. 62C, §2 and any amendments thereto.

(e) Other statutory exceptions. 830 CMR 62C.21.1(1) does not prevent the disclosure of information if the disclosure is permitted by M.G.L. c. 62C, § 21 or by any other statutory provision of the Massachusetts General Laws or federal laws.

(6) Nothing herein shall be construed to permit the inspection or disclosure, directly or indirectly, of any returns or other information received by the Commissioner from the Internal Revenue Service or from any other taxing authority, except for the purpose of administering the Massachusetts laws relating to state taxation.

REGULATORY HISTORY
Date of Promulgation: 2/2/78
New Regulation Promulgated: 11/20/80
New Regulation Promulgated: 2/5/99
Emergency Amendment: 10/6/08
Amended: 12/26/08