[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.
