C




                            December 23, 1986




    Honorable Bob Bullock                      Opinion No. JM-590
    Comptroller of Public Accounts
    L.B.J. State Office Building               Re: Whether information sub-
    Austin, Texas   78774                      mitted by a taxpayer in support
                                               of a request for a refund of
                                               sales taxes paid is excepted
                                               from disclosure under the Open
                                               Records Act

    Dear Mr. Bullock:

         You ask us two questions regarding the applicability of the Open
    Records Act, artikle 6252-17a. V.T.C.S., to certain information in
    your possession and control. Your two questions are as follows:

                1. Is information submitted by a taxpayer in
             support of a request for a refund of sales taxes
             paid excepted from disclosure under the Open
             Records Act?     This   information includes the
             ~identity of the parties to the transaction giving
             rise to the refund and the amount of the
             transaction.

                 2. Does a city whose sales tax allocation is
              affected by this refund have any greater right to
              this information than any other person?

    We answer your first question in the affirmative. Such information is
    excepted from required public disclosure under section 3(a)(l) of the
    Open Records Act, article 6252-17a, V.T.C.S. We answer your second
    question in the negative. The act affords the city no greater right
    of access than any other requestor.

         You inform us that a certain home rule city, which imposes a
    sales tax pursuant to article 1066~. V.T.C.S., (Local Sales and Use
    Tax Act). has requested from your office certain information regarding
    a specific sales tax refund. After the city was notified that a large
    tax refund on a single transaction was being offset against that
    city's current sales tax payment, it requested




                                     p. 2636
Honorable Bob Bullock - Page 2   (m-590)


                                                                          7




          any documentation reflecting the name and address
          of the seller, the total amount of the trans-
          action, as well as any documentation including but
          not limited to working papers of your office,
          whereby [was made] the determination that the
          exemption was valid.

     Section 5(a) of article 1066c, V.T.C.S.. reposes in the
comptroller the duty to perform all functions incident to the
administration, collection, enforcement, and operation of the tax. As
a result, you are in possession of the information which the city
seeks.

     Section 6(6), article 6252-17a, V.T.C.S., specifically makes
public "the name , place of business, and the name of the city to which
local sales and use taxes are credited, if any, for the named person,
of persons reporting or paying sales and use taxes under the Limited
Sales, Excise, and Use Tax Act." The information requested, however,
is much broader in scope. You claim that the requested information is
excepted from required public disclosure by section 3(a)(l) of the
Open Records Act which excepts "information deemed confidential by
law, either Constitutional, statutory, or by judicial decision,"
specifically, section 151.027 of the Tax Code. We agree.

     Section 151.027 of the Tax Code provides the following:

          5151.027. Confidentiality of Tax Information

            (a) Information in or derived from a record,
         report, or other instrument required to be
         furnished under this chapter is confidential and
         not open to public inspection, except for informa-
         tion set forth in a lien filed under this title or
         a permit issued under this chapter to a seller and
         except as provided by Subsection (c) of. this
         section.

            (b) Information secured, derived, or obtained
         during the course of an examination of a
         taxpayer's books, records, papers, officers, or
         employees,   including   the   business   affairs,
         operations, profits, losses, and expenditures of
         the taxpayer, is confidential and not open to
         public inspection except as provided by Subsection
         (c) of this section.

             (c) This section does not prohibit:




                                 p. 2637
Honorable Bob Bullock - Page 3   ,(JM-590)




                (1) the examination of information, if
             authorized by the comptroller, by another state
             officer or law enforcement officer, by a tax
             official of another state, or by an official of
             the United States if a reciprocal agreement
             exists;

               (2) the delivery to a taxpayer, or a tax-
            payer's authorized representative, of a copy of
            a report or other paper filed by the taxpayer
            under this chapter;

               (3) the publication of statistics classi-
            fied to prevent the identificationsof a partic-
            ular report or items in a particular report;

                (4) the use of records, reports, or
             information secured, derived, or obtained by
             the attorney general or the comptroller in an
             action under this chapter against the same
             taxpayer who furnished the information; or

               (5) the delivery to a successor, receiver,
            executor, administrator, assignee, or guarantor
            of a taxpayer of information about items
            included in the measure and amounts of any
            unpaid tax or amounts of tax, penalties. and
            interest required to be collected. (Emphasis
            added).

This office has already declared in an earlier cpinion, Attorney
General Opinion H-223 (1974), that the predecessors to section 151.027
of the Tax Code, articles 1.031 and 20.11(G) of Title 122A, V.T.C.S.,
brought the information specified therein within the section 3(a)(l)
exception.   The opinion concluded that the comptroller is not
prohibited from disclosing the fact that an individual has requested a
redetermination or claim for refund hearing, but he is prohibited from
disclosing facts about that taxpayer's business affairs.           The
comptroller may disclose his resolution of the issues raised in such
administrative hearings, but he must not do so in a manner that will
make possible identification of the individual taxpayer ,involved. In
Attorney General Opinion H-661 (1975). this office further concluded
that section 151.027's predecessor statute prohibits the comptroller
from releasing information as to the amounts of the tax paid by a
particular taxpayer, nor may he release the amount of tax in
controversy in an administrative hearing prior to making a final
determination if doing so would indicate the amount of the taxpayer's
gross sales. Accordingly, we answer your first question in the
affirmative. With the exception of the information specifically made




                            p. 2638
Honorable Bob Bullock - Page 4 (J-M-590)




public by section 6(6) of the Open Records Act, the information
requested of you is excepted from disclosure by section 3(a)(l) of
article 6252-17a.

     Your second question asks whether a city whose sales tax revenue
is affected by a decision of your office has any greater right of
access to information regarding that decision than any other
requestor. It is suggested that such a city does. It is suggested
that you stand in a fiduciary relationship with each city for which
you administer a local tax, that you act as agent and that each city
stands in the position of a principal. The argument concludes that,
since a fiduciary is under a duty of disclosure to that party for whom
he acts as fiduciary, any disclosure by you to such city would not
constitute a public disclosure of such records.           We do not
characterize the relationship which exists between you and each city
for which you administer such a local tax to be one of principal and
agent. We further conclude that neither the Open Records Act nor any
other statute confers upon a city for which you administer a local tax
any special right of access not enjoyed by any other requestor.

     Generally, "agency" is defined as the legal relationship, based
upon an express or implied contract of the parties or created by
operation of law, by virtue of which one party.     _  the agent. is
authorized to act for the other party, who is the principal. -See -s
V. Eikenberry. 122 S.W.2d 1045 (Tex. 1939); Thompson V. Schmitt, 274
S.W. 554 (Tex. 1925). A basic test of agency is the right of the
principal to control the actions of his agent. Vahlsing Christina
Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex. Civ. App. -
Corpus Christ1 1974, writ ref'd n.r.e.). No agency relationship can
be said to exist unless the actions of the alleged agent are within
the control of the principal. First National Bank of Mineola V.
Farmers and Merchants State Bank of Athens, 417 S.W.2d 317 (Tex. Civ.
APP. - Tyler 1967, writ ref'd n.r.e.).        In this instance, the
comptroller cannot be said to be an agent acting under the direction
or control of any principal.      Indeed, neither the city nor the
comptroller can be said to be acting at the control or discretion of
the other. -See V.T.C.S. art. 1066~; Tax Code ch. 151.

     As to any general fiduciary duty owed by the comptroller, such
duty would appear to be owed to the state generally rather than to any
individual city in particular. Though public officers are for some
purposes agents of the public and of the policy that they represent,
Kopecky V. Yoakum, 52 S.W.2d 240, judgment adopted (Tex. Comm'n App.
1932); City of Hallettsville V. Long, 32 S.W. 567 (Tex. Civ. App.
1895, no writ), they are agents whose duty and authority are defined
and limited by law. Id.; see also Bayha V. Carter, 26 S.W. 137 (Tex.
Civ. App. 1894, no writ). An officer must look to that act by which
his office is created and its duties are defined in order to ascertain
the extent of his powers and the scope and nature of his duties; he




                           p. 2639
Honorable Bob Bullock - Page 5   (JM-590)




may not transcend the former nor Vary the prescribed mode of
performance of the latter. Crosthwait v. State, 138 S.W.2d 1060 (Tex.
1940). We find no provision in any relevant statute which places the
comptroller in some sort of fiduciary relationship with the cities
whose local sales tax he must administer.

     Finally, it is suggested that the relationship, by whatever term
it is called, which exists between the comptroller and each city for
which he administers the local tax confers upon such a city a special
right of access under the Open Records Act to the requested informa-
tion. We disagree. The act itself confers no implied right of access
upon any requestor. See Attorney General Opinions MW-381 (1981);
Mu-95 (1979); Open Records Decision Nos. 330 (1982); 288 (1981).
Accordingly, we answer your second question in the negative; the city
whose sales tax revenue is directly affected by your decision
regarding a refund has no greater right to this information than any
other requestor.

     Although a long line of Attorney General Opinions and Open
Records Decisions have concluded that information may be transferred
between governmental agencies which are subject to the Texas Open
Records Act without destroying its confidential character, Attorney
General Opinions H-917, H-836 (1976); H-242 (1974); M-713 (1970); Open
Records Decision Nos. 272 (1981); 183 (1978). this principle has never
been applied where a statute makes such information confidential.
Section 151.027 of the Tax Code enumerates those entities to which the
information may be disclosed; an affected municipality is not
included. The express mention or enumeration of one person, thing,
consequence, or class is tantamount to an express exclusion of all
others. State V. Mauritz-Wells Co.. 175 S.W.2d 238 (Tex. 1943);
Federal Crude Oil Co. V. Yount-Lee Oil Co., 52 S.W.2d 56 (Tex. 1932).
We conclude therefore that you may not transfer this information to
such a city in return for a promise of confidentiality.

                            SUMMARY

            Information received by the Comptroller of
         Public Accounts pursuant to article 1066c,
         V.T.C.S., (Local Sales and Use Tax Act) and
         chapter 151 of the Tax Code is excepted from
         required public disclosure under the Open Records
         Act by section 3(a)(l) of the act and by section
         151.027 of the Tax Code.

             A city whose sales tax revenue is affected by a
          decision made by the comptroller of public
          accounts regarding a sales tax refund has no
          greater right of access than does any other
          requestor under    the   Open   Records   Act ~to




                                 p. 2640
Honorable Bob Bullock - Page 6     (JM-590)




          information in the custody of       the comptroller
          concerning that refund.




                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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