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05/17/83 MATTER A SUBPOENA DUCES TECUM ISSUED TO

May 17, 1983

IN MATTER OF A SUBPOENA DUCES TECUM ISSUED TO B.M., MOVANT-PETITIONER
v.
STATE OF WISCONSIN, JOHN DOE AND OTHER PERSONS UNKNOWN, PLAINTIFFS-RESPONDENTS



Appeal from an order of the Circuit Court for Milwaukee County: Michael J. Skwierawski, Judge.

Wedemeyer, P. J., Decker and Moser, JJ.

The opinion of the court was delivered by: Wedemeyer

B.M. *fn1 appeals from an order of the trial court requiring him to produce his copies of his federal and state income tax returns and schedules from January 1, 1972, to the present pursuant to a subpoena duces tecum issued under the authority of a John Doe proceeding. We hold that the order violates the fifth amendment *fn2 of the Constitution of the United States and article I, section 8(1) *fn3 of the Wisconsin Constitution because it compels B.M. to incriminate himself. We therefore reverse the order of the trial court.

On September 30, 1981, a subpoena was issued requiring B.M. to attend a John Doe hearing. The subpoena also required B.M. to produce a list of designated records at the hearing, including personal copies of his federal and state income tax returns, schedules and work papers from January 1, 1972, to the present. B.M. filed a motion to quash the subpoena, claiming that it compelled him to testify against himself, that the state had not shown the relevance of the returns to the John Doe proceeding and that 26 U.S.C. § 6103 (1981) barred the state from obtaining copies of a witness' tax returns. The trial court refused to quash the subpoena, and B.M. appealed.

B.M. argues three issues on appeal:

1. whether 26 U.S.C. § 6103 (1981) bars the state from obtaining copies of a witness' tax returns by subpoena duces tecum in a John Doe proceeding;

2. whether the trial court erred in failing to require that the relevancy of the tax returns be disclosed to B.M.; and,

3. whether the fifth amendment to the United States Constitution and article I, section 8(1) of the Wisconsin Constitution permit B.M. to refuse to produce his copies of his federal and state income tax returns and accompanying schedules in response to a subpoena duces tecum.

26 U.S.C. § 6103 (1981)

Since 26 U.S.C. § 6103 (1981) forbids the state agency involved in this case from obtaining B.M.'s federal tax return from the federal government, B.M. argues that it protects him from disclosing to the state agency his copies of his federal and state tax returns. We disagree.

The general rule enunciated in 26 U.S.C. § 6103(a) (1981) is that returns are confidential and recordkeepers for the federal government may not disclose returns except as provided by statute. A return is defined as any tax or information return, declaration of estimated tax, or claim for refund, and schedules, attachments or lists supplemental to or part of the filed return. 26 U.S.C. § 6103(b) (1) (1981). By its definition, a return is not a copy kept by a taxpayer. See also Heathman v. United States District Court, 503 F.2d 1032, 1035 (9th Cir. 1974); Maggio v. Hynes, 423 F. Supp. 144, 145-46 (E.D.N.Y. 1976); cf. Town Taxi v. Police Commissioner, 387 N.E.2d 129, 136 (Mass. 1979). We therefore hold that 26 U.S.C. § 6103 does not protect B.M. from producing his copies of his federal and state tax returns in response to a subpoena duces tecum issued by the state agency involved in this case.

RELEVANCY

In State v. Washington, 83 Wis. 2d 808, 843, 266 N.W.2d 597, 614 (1978), our supreme court stated: "The John Doe Judge, and the court ordering production of the documents, have to determine whether the documents sought are relevant to the topic of inquiry. The test is whether the information sought is in some manner connected with the suspected criminal activity under investigation."

The topic of inquiry in this case is known to the trial court. The information sought is copies of tax returns of B.M. The subpoena asked for the copies of the returns to examine expenses claimed by B.M. The information relates to the suspected criminal activity since it may show whether or not and in what manner B.M. may have violated state . The trial court specifically found the documents relevant to the topic of inquiry. After reviewing the record on appeal, we cannot conclude that the trial court erred in refusing to disclose the ...


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