November 25, 2010
Office of Open Records
400 North Street
Harrisburg, PA 17120
Dear Ms. Mutchler:
Subject: Request for Advisory Opinion
Our associations would like to join with other organizations in seeking an advisory opinion from your office on the question of whether the IRS W-2 tax form issued by local education agencies to employees is a “public record” under Act 3.
The Right-To-Know Law defines “public record” as any record that “is not exempt from being disclosed under any other Federal or State law….” 65 P.S. Section 67.102. We believe both federal and state law prohibit disclosure of IRS W-2 tax forms.
Under federal law, W-2 forms are exempt from disclosure under Section 6103 of the Internal Revenue Code, 26 U.S.C.A. Section 6103.
Section 6103 establishes a general rule that “tax returns” and “return information” are confidential. “Return” is defined in Section 6103(b)(1) to include an “information return,” and a W-2 tax form is an “information return.” “Return information” is defined in Section 6103(b)(2) as including an array of taxpayer information including the taxpayer’s “identity, the nature, source or amount of his income, receipts, deductions, exemptions…tax withheld…tax payments…” 26 U.S.C.A. Section 6103(b)(2). Of course, a W-2 tax form includes all of this information and therefore constitutes “return information.”
There are two very important court cases addressing the applicability of Section 6103.
In Russell v. Board of Plumbing Examiners, 72 F.Supp. 2d 339 (S.D.N.Y. 1999), the
court ruled that W-2 tax forms are confidential information prohibited from disclosure under Section 6103.
In Church of Scientology of California v. I.R.S., 484 U.S. 9 (1987), the U.S. Supreme
Court ruled that the Section 6103 prohibition of disclosure applies to the entirety of a document that contains confidential information. The court specifically ruled that such a document may not be disclosed even if specific confidential data is redacted.
As to Pennsylvania law, the Local Taxpayer Bill of Rights, 53 Pa.C.S.A. ? 8437 provides as follows:
“Any information gained by a local taxing authority as a result of any audit,
return, report, investigation, hearing or verification shall be confidential tax
information. It shall be unlawful, except for official purposes or as provided by
law, for any local taxing authority to:
(1) Divulge or make known in any manner any confidential information gained
in any return, investigation, hearing or verification to any person.
(2) Permit confidential tax information or any book containing any abstract or
particular thereof to be seen or examined by any person.
(3) Print, publish or make known in any manner any confidential tax
An offense under this section is a misdemeanor of the third degree and, upon
conviction thereof, a fine of not more than $2,500 and costs, or a term of
imprisonment for not more than one year, or both, may be imposed. If the
offender is an officer or employee of the local taxing authority, the officer or
employee shall be dismissed from office or discharged from employment.”
Since a W-2 tax form is an information tax return, it constitutes information prohibited from disclosure under the Local Taxpayer Bill of Rights.
In terms of availability of information to the public, it is important to stress that public employee compensation information is available to the public under the Right-to-Know Law through many sources other than W-2 forms. Therefore, the determination that W-2 tax forms are confidential does not deprive the public of this information.
For these reasons, we believe W-2’s are not subject to Right-to-Know Law requests.
Thank you for the opportunity to seek clarification of this important question.
Stinson Stroup Jay Himes, CAE
Executive Director Executive Director
PA Association of School Administrators PA Association of School Business Officials
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