FOIL-AO-19765

January 7, 2020

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.

Dear:

I am writing in response to your request for an advisory opinion regarding the manner in which the New York State Department of Taxation and Finance (the Department) has responded to your Freedom of Information Law (FOIL) request for attachments to form TP-584 filed since September 13, 2019.

According to the Department’s Instructions for form TP-584:

“Form TP-584 must be used to comply with the filing requirements of the real estate transfer tax (Tax Law Article 31); the tax on mortgages (Tax Law Article 11), as it applies to the Credit Line Mortgage Certificate; and the exemption from estimated personal income tax (Tax Law Article 22), as it applies to the sale or transfer of real property or cooperative units under Tax Law § 663(a).

Beginning September 13, 2019, a limited liability company (LLC) must disclose all owners until full disclosure of ultimate ownership to the natural persons.”

On September 13, 2019, the Governor signed Chapter 297 of the Laws of 2019. The Law now states in pertinent part:

“When the grantor or grantee of a deed for residential real property containing one-to-four-family dwelling units is a limited liability company, the joint return shall not be accepted for filing unless it is accompanied by a document which identifies the names and business addresses of all members, managers, and any other authorized persons, if any, of such limited liability company and the names and business addresses or, if none, the business addresses of all shareholders, directors, officers, members, managers and partners of any limited liability company or other business entity that are to be the members, managers or authorized persons, if any, of such limited liability company. The identification of such names and addresses shall not be deemed an unwarranted invasion of personal privacy pursuant to article six of the public officers law.” Tax Law §1409(a) (emphasis is mine)

In response to your request for the attachments, the Department denied access on the ground that the records were specifically exempt from disclosure (§87(2)(a) of FOIL) pursuant to Tax Law §1418 (“Returns to be secret”).

Section 1418(a) states, in part:

“Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the tax appeals tribunal, the commissioner of taxation and finance, any officer or employee of the department of taxation and finance, any person engaged or retained by such department on an independent contract basis, or any person who, pursuant to this section, is permitted to inspect any return or to whom a copy, an abstract or a portion of any return is furnished, or to whom any information contained in any return is furnished, to divulge or make known in any manner the particulars set forth or disclosed in any return required under this article.”

While I agree with the Department that “the return,” which includes form TP-584, is exempt from disclosure pursuant to §87(2)(a) of FOIL and Tax Law 1418, I do not agree that the attachment “which identifies the names and business addresses of all members, managers, and any other authorized persons, if any, of such limited liability company…” [Tax Law §1409(a)] should be considered part of the return. I note that the Legislature chose to characterize the document in question as a document that accompanies the return. It is not characterized as a document to be included in the return. As such, it is my opinion that the document which reflects the information required by §1409(a) should not be considered part of the return which would be prohibited from being disclosed pursuant to Tax Law.

This opinion is bolstered by the fact that the Legislature chose to include specific language in the amendment to §1409(a) stating that “[t]he identification of such names and addresses shall not be deemed an unwarranted invasion of personal privacy pursuant to article six of the public officers law.” If the Legislature had intended the document to be part of the return, the language quoted above would be superfluous and meaningless. In 2001, the Court of Appeals, the state’s highest court held that in construing a statute, the court must give effect to all the language employed by the particular legislation:

“a construction, ‘resulting in the nullification of one part of the [statute] by another,’ is impermissible (Matter of Albano v. Kirby, supra, 36 N.Y.2d, at 530, 369 N.Y.S.2d 655, 330 N.E.2d 615; McKinney's Cons. Laws of N.Y., Book 1, Statutes § 98, at 223), and violates the rule that all parts of a statute are to be harmonized with each other, as well as with the general intent of the statute (Matter of Society of N.Y. Hosp. v. Del Vecchio, 70 N.Y.2d 634, 636, 518 N.Y.S.2d 781, 512 N.E.2d 302).” Rangolan v. County of Nassau, 96 N.Y.2d 42, 48, 749 N.E.2d 178, 183 (2001)

Based on the language of the statute and the judicial direction on statutory construction referenced above, it is our view that the record required by §1409(a) of Tax Law is not a part of the return and is not confidential pursuant to §1418(a) of Tax Law. Further, based on the plain language of the statute, it is our opinion that the Legislature intended this record to be public and disclosed in response to a FOIL request.

I hope this information proves useful.

Sincerely,

Kristin O’Neill
Assistant Director