Opinion
March 16, 2006
GENERAL ORDER CONCERNING TAX RETURNS OR TRANSCRIPTS OF TAX RETURNS
WHEREAS, pursuant to 11 U.S. Code § 521 (e), the debtor shall provide the trustee with a copy of tax returns or transcripts of such returns for the most recent tax year immediately before the commencement of the case and for which a Federal income tax return was filed and, if requested, provide copies to any creditor that timely requests such copies; and;
WHEREAS, pursuant to 11 U.S. Code § 521(f), the debtor may have to file with the Court a copy of a federal tax return or a transcript of such return for tax years ending while the case is pending and/or returns (or amendments) filed for the three (3) year period prior to the commencement of the case;
WHEREAS, 26 U.S. Code § 6103, titled confidentiality and disclosure of returns and return information contains an exhaustive and definitive expression of congressional intent concerning tax return information and the required confidentiality of such information.
THEREFORE, this Court ORDERS as follows:
A. All tax returns required to be provided by debtors to either a Chapter 7 Trustee or the Chapter 13 Trustee shall be filed by the debtor or debtor's counsel with the Clerk of the United States Bankruptcy Court for the Southern District of West Virginia AND the Chapter 7 Trustee or Chapter 13 Trustee no later than seven (7) days prior to the first meeting of creditors scheduled in the case.
B. Any tax returns or transcripts of tax returns filed with the Court shall not be subject to public inspection, copy or review. The tax returns shall be shown to be filed on the Court Docket Sheet, but its image shall only be available on the CM/ECF/PACER system to the United States Trustee and court staff. Revision to the CM/ECF software this Court and other courts have requested will at a future date allow case trustees and the U.S. Trustee to review this and other documents. Additionally, the tax return shall not be available to anyone, except the Trustee and/or U.S. Trustee, who comes into the Clerk's office of this Court. Any other party seeking access to those returns must apply to this Court pursuant to Paragraph E of this Order for access to those returns.
C. Any tax returns or transcripts provided to a Trustee shall not be disclosed by the Trustee to anyone, except the United States Trustee's office and debtor's counsel, all of whom shall comply with 26 U.S. Code § 6103 and the U.S. Trustee Guidelines for Trustee Access and Control of Debtor Tax Returns (available at www.usdoi.gov/ust/).
D. Debtors or debtor's counsel under 11 U.S. Code § 521 should redact personal information as set forth in the Judicial Conference's Policy on Privacy and Public Access to Electronic Case Files. The responsibility for redacting personal identifiers rests solely with the debtor and debtor's counsel, not court employees. In accordance with the Judicial Conference policy, the debtor or debtor's counsel should redact the following personal identifiers in any tax information filed with the Court or provided to the Trustee or creditor(s), in either electronic or paper form:
All tax information provided in accordance with Section 521 of the Bankruptcy Code is subject to the Judicial Conference of the United States Policy on Privacy and Public Access to Electronic Case Files,http://www.privacy.uscourts.gov/Policy.htm ("JCUS policy") (JCUS-SEP/OCT 01, pp. 49-50).
1. Social Security Numbers. If an individual's Social Security Number is included, only the last four digits of that number should appear.
2. Names of Minor Children. If a minor child(ren) is/are identified by name, only the child(ren)'s initials should appear.
3. Dates of Birth. If an individual's date of birth is included, only the year should appear; and
4. Financial Account Numbers. If financial account numbers are provided, only the last four digits of these numbers should appear.
E. Procedure for requesting and obtaining access to tax information filed with the Bankruptcy Court under 11 U.S. Code § 521(f) or 11 U.S. Code § 521(e)2(A).
To gain access to a debtor's tax information under 11 U.S. Code § 521(f) or 11 U.S. Code § 521(e)2(A), other than the initial required production of tax returns to the Trustee, the United States Trustee, or party in interest, including a creditor, must follow the procedures set forth below:
1. A written Motion requesting entry of an Order directing a debtor to file copies of tax returns with the Court pursuant to 11 U.S. Code § 521(f) or to provide the same to a creditor under 11 U.S. Code § 521(e)2(A), which motion shall be filed with the Court and served on the debtor and debtor's counsel, if any.
2. In order to obtain access to debtor's tax information that is filed with the Bankruptcy Court and/or request returns to be filed in accordance with Paragraph 1, the movant must file a Motion with the Court, which should include:
a. A description of the movant's status in the case, to allow the Court to ascertain whether the movant may properly be given access to the requested tax information;
b. A description of the specific tax information sought;
c. A statement indicating that the information cannot be obtained by the movant from any other sources; and
d. A statement subject to Bankruptcy Rules 9011 sanctions showing a demonstrated need for the tax information.
e. Any creditor who requests a copy of the tax returns or transcripts of tax returns shall certify in writing at the time the request is made such creditor has read, or has had explained to them by an attorney, the content of the confidentiality required by 26 U.S. Code § 6103, and that such creditor understands the confidentiality requirements of 26 U.S. Code § 6103 and will comply with the same.
f. A debtor may supply a transcript of the return to a party who makes such request.
3. Any motion filed should include a proposed Order granting the motion and should include language that the information obtained is confidential and its use is limited to the reasons specified in the motion. The Order shall further specify that sanctions, including criminal prosecution, may be imposed for the improper use, disclosure or dissemination of the tax information. The Motion shall also have attached a proposed Order leaving blank the number of days by which the debtor has to file the tax returns or transcripts.
F. Attached to this Order are forms which practitioners may find helpful in obtaining tax returns or transcripts of those returns.