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Can I quash a Civil Subpoena(Duces Tecum)?

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mzfromca

Junior Member
What other info would be helpful to you all?

Her rent is almost 1,000 which is typical for a 3br/2ba house in my area. It's more than what she gets in alimony. And as mentioned it's not something for me to hide in my taxes. In fact it has helped me a great deal in my investment purchase of my other home because that amount raises my ratios up to guidelines and without it, I would not qualify for a mortgage. I just don't want the taxes to become public information and that's what I will be discussing with the attorney this afternoon.
 


tranquility

Senior Member
Get an attorney. Get the subpoena regarding production of tax returns quashed. Ask for attorney fees under Code of Civil Procedure § 1987.1 & .2.
 
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Zigner

Senior Member, Non-Attorney
What other info would be helpful to you all?

Her rent is almost 1,000 which is typical for a 3br/2ba house in my area. It's more than what she gets in alimony. And as mentioned it's not something for me to hide in my taxes. In fact it has helped me a great deal in my investment purchase of my other home because that amount raises my ratios up to guidelines and without it, I would not qualify for a mortgage. I just don't want the taxes to become public information and that's what I will be discussing with the attorney this afternoon.
Ahhh, so your live-in girlfriend has co-mingled her finances with you in order to allow you to purchase an investment home. I suspect that money comes back in to the household and is shared.

Your girlfriend is exactly what Bali always complains about. In this case, his observations would appear to be on-point.
 

Zigner

Senior Member, Non-Attorney
Get an attorney. Get the subpoena regarding production of tax returns quashed. Ask for attorney fees under Code of Civil Procedure § 1987.1.
The information may sought, in fact, be appropriate. Your advice seems to say that it (the quashing) is a done deal. It's not so clear though.
 

tranquility

Senior Member
Did you read my previous post?

http://california-discovery-law.com/tax-%20privilege-%202.html
The tax return is privileged. There certainly can be some circumstances to overcome the privilege, but not in the facts we have here.

Info edit:
In re Marriage of Brown 99 Cal.App.3d 702
[3] We turn next to the principal issue on this appeal, the accessibility of the income tax returns.

Revenue and Taxation Code section 19282 provides as follows: "Except as otherwise provided in this article,[ fn. 3] it is a misdemeanor for the Franchise Tax Board or any member thereof, or any deputy, agent, clerk, or other officer or employee of the state (including its political subdivisions), or any former officer or employee or other individual, who in the course of his or her employment or duty has or had access to returns, reports, or documents required under this part, to disclose or [99 Cal. App. 3d 708] make known in any manner information as to the amount of income or any particulars set forth or disclosed therein."

In Webb v. Standard Oil Co. (1957) 49 Cal. 2d 509 [319 P.2d 621], the Supreme Court held that compelling a taxpayer to produce a copy of his income tax returns defeats the legislative purpose underlying section 19282; that the purpose of the section "is to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes." (Webb, supra, p. 513.) "The effect of the statutory prohibition is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns." (Id see also Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal. 3d 1, 6 [123 Cal.Rptr. 283, 538 P.2d 739].) Since the taxpayer's federal income tax return contains substantially the same information as his state return for the same period, the Webb court extended the same privilege to copies of a taxpayer's federal returns. (Webb, pp. 513-514.)

Wilson v. Superior Court (1976) 63 Cal. App. 3d 825 [134 Cal.Rptr. 130], found a waiver of the taxpayer's privilege of confidentiality in a suit against an accounting firm alleging negligent advice on the tax consequences of a real estate sale. This court concluded that plaintiff taxpayer had waived the privilege against disclosure of her income tax returns by filing a complaint which raised issues as to the existence, content and tax consequences of those returns, and ordered the trial court to vacate its order denying defendants-petitioners access to her returns.

In Miller v. Superior Court (1977) 71 Cal. App. 3d 145 [139 Cal.Rptr. 521], the court, on policy grounds, denied a husband's petition for a writ to prohibit the trial court from enforcing its order requiring him to produce and permit the inspection and copying of his income tax returns. The court concluded "that the time has arrived when a policy favoring the confidentiality of tax returns must give way to the greater public policy of enforcing child support obligations." (71 Cal. App. 3d at p. 149.) In Miller the wife sought, through contempt proceedings, to collect an arrearage of $6,340 in child support which had accumulated following entry of an interlocutory judgment of dissolution. After the husband testified at the order to show cause hearing that he was unable to provide any support for their children, the wife [99 Cal. App. 3d 709] noticed a motion for production of his income tax returns covering a period of six years. The husband opposed the motion, upon a claim of privilege, but the trial court granted the wife's motion to produce and, as we have seen, the appellate court denied the husband relief, carefully limiting its decision, however, "to the narrow issue of the assertion of the privilege of nondisclosure of income tax returns in the context of proceedings to enforce child support obligations." (71 Cal. App. 3d at p.149.)

The Miller limitation is of importance to the case at bench. There the wife sought to enforce payment of the arrearage under an existing order for child support; here Gary seeks an order modifying the interlocutory decree to compel Roberta to pay child support. The difference is more than one of form, in the context of the policy to be followed. Furthermore, the Miller case involved proceedings solely between divorced spouses; the interest and rights of one in Paul's position were not in issue. The Millers' marriage had terminated; that of Paul and Roberta is intact, and the public interest in preservation of the marital relationship, while not directly implicated in the privilege against disclosure of tax returns, cannot simply be ignored. We conclude, therefore, that to extend discovery by requiring such disclosure in such instances would be contrary to, not in aid of a sound public policy, and that Paul was properly allowed to assert his privilege against disclosure of the returns.
 
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mzfromca

Junior Member
So if im buying a piece of land that doesnt produce income then im commingling? You are just speculating with your answer.
 

Zigner

Senior Member, Non-Attorney
Did you read my previous post?



The tax return is privileged. There certainly can be some circumstances to overcome the privilege, but not in the facts we have here.

Info edit:
In re Marriage of Brown 99 Cal.App.3d 702
I stand by my response.
 

nanu156

Member
What other info would be helpful to you all?

Her rent is almost 1,000 which is typical for a 3br/2ba house in my area. It's more than what she gets in alimony. And as mentioned it's not something for me to hide in my taxes. In fact it has helped me a great deal in my investment purchase of my other home because that amount raises my ratios up to guidelines and without it, I would not qualify for a mortgage. I just don't want the taxes to become public information and that's what I will be discussing with the attorney this afternoon.
Wait... I don't see the reported "co-mingling"... Did your lady friend put her name on title, did she supply direct funds? Or was the rental income (no a co-mingle) just used with the mortgage company as qualifying income (which btw congrats for getting that through, it's almost impossible to do on a mortgage app)

If it was used as "qualifying income" then it's not a co-mingle, it would be no different then him using income produced by apartment complexes (rented by persons of no relation) as income for a purchase mortgage.

Now if she was a co-applicant on that mortgage then that most certainly would be a co-mingle.
 

mzfromca

Junior Member
No that property is solely mine. She is not on title on anything that i own and its not in any future plans to include her in any of my personal dealings.
 

tranquility

Senior Member
Just for the record, I think some discovery, including the testimony of the OP is appropriate and will not be quashed. It was only the tax returns I was speaking upon.
 

nanu156

Member
Well... The truth is the didn't co-mingle any more then any landlord is co-mingling with any tenant when they deposit rent checks, then supply bank statements + tax returns to a mortgage company to get a mortgage on an investment property.

Im still floored that he was able to use "border income" on an application to purchase a rental property, although if it met underwriting's due diligence I am sure it will meet the courts, because that's the kind of thing UW's almost NEVER approve...

Poster, is this is principal thing, or are you just not wanting your Gf to know what you make? Or are you ordered to pay another party (not party to this case) who you are afraid may be able to pull a now public tax return through court records and glean info about your income that may increase your obligation to them???

In any event if you want to Quash you are going to need an attorney, you can request your atty fees to be paid for by the other party if you wish.

Is it this poster playing the system or the woman in the scenario who receives alimony??? I suppose he is complicit in her playing the system, but in the end it's her case not his. (at least that's what we tell bf's and gf's all the time around here, that it isn't their case and the person who's case it is is responsible for their own actions)
 

Zigner

Senior Member, Non-Attorney
Well... The truth is the didn't co-mingle any more then any landlord is co-mingling with any tenant when they deposit rent checks, then supply bank statements + tax returns to a mortgage company to get a mortgage on an investment property.
Except, in an "arms-length" transaction such as you are speaking of, the LL isn't playing house with the tenant. (ie: Cohabitating)
 
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