Peterson v. Peterson

• Decision Date: 09 March 1945
• Docket Number: 8759.
• Citation: 17 N.W.2d 920,70 S.D. 385
• Parties: PETERSON v. PETERSON.
• Court: South Dakota Supreme Court

17 N.W.2d 920

70 S.D. 385

PETERSON v. PETERSON.

No. 8759.

Supreme Court of South Dakota

March 9, 1945

Henry C. Mundt, of Sioux Falls, for appellant.

T R. Johnson, of Sioux Falls, for respondent.

SICKEL Judge.

This is an action for divorce. The circuit court entered an intermediate order requiring the defendant to furnish copies of his federal income tax returns for the years 1934 to 1943 inclusive, within 20 days, or, if such copies are not in his possession, custody or control, to 'procure such copies from the United States Internal Revenue Department.' Defendant stated to the court that he did not have copies of such returns in his possession. He claims that the original returns on file in the Internal Revenue Office are privileged communications, and that the order which, in effect, requires him to request the copies of the Treasury Department, is void. A proceeding in the circuit court to compel the production and copying of documents is provided by SDC 36.0601. That statute provides:

'Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may:

'(1) Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control; * * *.'

In the absence of statute, a communication in respect to private matters is not privileged by reason of the fact that it is made to a public official. Jones on Evid. (1938) § 762; Agnew v. Agnew, 52 S.D. 472, 218 N.W. 633, 59 A.L.R. 1549; Peden v Peden's Adm'r, 121 Va. 147, 92 S.E. 984, 2 A.L.R. 1414, Annotation 1422. And this rule applies to copies of income tax reports which are in the possession of the persons who made the reports. Samish v. Superior Court, 28 Cal.App.2d 685, 83 P.2d 305; Connecticut Importing Co. v. Continental Distilling Corp., D. C., 1 F.R.D. 190; Orange County Theatres v. Levy, D.C., 26 F.Supp. 416.

The only privilege in regard to income tax reports is found in the federal statutes and rules. 26 U.S.C.A. Int.Rev.Code § 55(a)(2) provides: 'All returns made under this chapter * * * shall constitute public records and shall be open to public examination and inspection to such extent as shall be authorized in rules and regulations promulgated by the President.' Subsections (b) to (e), inclusive, contain provisions which permit disclosures, but these provisions are in no way related to the question involved in this action. Subsection (f) of the same section provides that it shall be unlawful for officers and employees of the United States to divulge information contained in income tax reports in any manner not provided by law. Pursuant to the above statute, the Internal Revenue Code of Rules was adopted. Section 463C.2 of the rules provides that: 'The return of an individual shall be open to inspection (a) by the person who made the return, or by his duly constituted attorney in fact'. Rule 463D.5 provides that: 'A copy of a return may be furnished to any person who is entitled to inspect such return upon written application therefor and the submission of evidence satisfactory to the Commissioner of his right to receive the same * * *.' These are the only provisions of the Rules which permit disclosure of individual income tax returns by officers and employees of the United States, so far as the facts in this case are concerned.

Similar statutes and rules were considered by the Supreme Court in Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846. In that case the facts were that the Internal Revenue Collector for the District of Kentucky was found guilty of contempt in one of the state courts of Kentucky for refusal to produce copies of reports filed in his office. He was discharged on order of the United States District Court, In re Commingore, 96 F. 552, and appeal was taken to the Supreme Court. The opinion states [177 U.S. 459, 20 S.Ct. 705]: 'The papers in question, copies of which were sought from the appellee, were the property of the United States, and were in his official custody under a regulation forbidding him to permit their use except for purposes relating to the collection of the revenues of the United States. Reasons of public policy may well have suggested the necessity, in the interest of the government, of not allowing access to the records in the offices of collectors of internal revenue, except as might be directed by the Secretary of the Treasury. The interests...