
    CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Commonwealth of Virginia v. Krbec
    March 6, 1984
    Case No. 9519
   By JUDGE BERNARD G. BARROW

I have reviewed the memoranda and the authorities which you have forwarded to me in this matter. In my opinion the information contained in the sealed envelope forwarded to the Clerk from the Department of Taxation is not of "such importance that the ends of justice require that the secrecy and confidentiality" of the tax returns in the envelope be violated. Therefore, it should not be opened and should be returned to the Department of Taxation by the Clerk after the entry of the final order in this matter.

Virginia Code § 58-48.4 requires that there be a finding that the information contained in the confidential tax returns being sought be of "such importance that the ends of justice require that the secrecy and confidentiality of such returns be violated." There is no further definition of this standard in the Code nor in any judicial interpretation.

I have turned for guidance, therefore, to the similar Federal Statute, 26 U.S.C. § 6103(i)(1)(B). This provision requires, among other things, that the information sought to be disclosed "cannot reasonably be obtained from any other source, unless it is determined that, notwithstanding the reasonable availability of the information from another source, the return or return information sought constitutes the most probative evidence of a matter in issue relating to the commission of such criminal act."

Similarly, in interpreting the Virginia Statute, the availability of the information from other sources and its relative probative value are questions which should be considered in determining if it is of "such importance that the ends of justice require" the violation of this secrecy and confidentiality. Since the information in this case can reasonably be obtained form other sources and does not constitute the most probative evidence of a matter in issue in this case, it follows that the information in the envelope is not of such importance that the ends of justice require" that its secrecy and confidentiality be violated.

Therefore, I have concluded that the envelope forwarded by the Department of Taxation in response to the Commonwealth’s Subpoena Duces Tecum should be returned to the Department of Taxation without its contents being revealed.  