The Qualified Privilege Against Discovery of Federal Income Tax Returns
Charles S. Stein
Abelman, Frayne & Schwab
May 6, 2007
Pittsburgh Tax Review, Vol. 5, p. 173, 2008
Federal courts have long struggled with the question of whether, and to what extent, they will grant the request of a litigant who is seeking the discovery of an opponent's income tax returns. A generation ago, William Edmundson traced the development of a qualified privilege, which provides some protection to taxpayers. Edmundson argued against this privilege, as the relation between taxpayer and Internal Revenue Service (IRS) does not satisfy Wigmore's principle that Evidentiary Law should only recognize a privilege where the communications are intended to be confidential, as it is well-understood that the IRS may share tax information with other government agencies. Nevertheless, courts have continued to recognize and develop such a privilege, though a consensus for a precise test continues to elude the courts.
While an absolute privilege would violate Wigmore's principle, this Note suggests that a qualified privilege is not a new right so much as a combination of two rights the parties already had, as expressed in Federal Rules of Civil Procedure 26(b)(1) and 26(b)(2)(i): the policy of allowing broad discovery while protecting parties from abuse.
This Note provides a brief background of the development of the qualified privilege within Federal case law, analyzes several difficult cases, discusses whether there should be a mandate of uniformity among the judges of a given district court, and discusses whether any circuit court has established a standard. Of special value to litigators, the author reviews, tabulates, and summarizes the current practice of the 94 federal district and territorial courts.
Number of Pages in PDF File: 31
Keywords: discovery, federal income tax, tax returns, privilege
JEL Classification: K13, K34, K41
Date posted: March 23, 2007 ; Last revised: July 25, 2008