Are NC Tax Review Board meetings subject to the Open Meetings Law, and what tax information can board members discuss publicly?

Plain-English summary

The Tax Review Board asked the AG four questions about how the Open Meetings Law applied to its proceedings and what its members could say publicly about taxpayer information.

The AG started from a clean premise. The Tax Review Board was a "public body" under N.C.G.S. § 143-318.10, so the Open Meetings Law applied. That meant the Board's regular meetings, as well as its meetings augmented by the Secretary of Revenue, were open to the public unless a statutory exemption kicked in.

The relevant exemption was § 143-318.18(7). That subsection took out of the Open Meetings Law any "public body subject to the Executive Budget Act . . . and exercising quasi-judicial functions, during a meeting or session held solely for the purpose of making a decision in an adjudicatory action or proceeding." The Tax Review Board fit that description, so when the Board met solely to deliberate a decision on a pending petition, it could meet privately. The AG read that exemption strictly. It covered deliberation only. It did not cover the Board's evidence-receiving hearings, and it did not cover any other Board business.

On confidentiality, the AG said members and staff were bound by § 105-259(a)(2)'s prohibition on disclosing tax information. The narrow exceptions in § 105-259(b)(1) through (29) were the only permitted disclosures. That confidentiality obligation did not flip on or off based on whether the Board had published its decision under § 150B-21.17(a)(5).

For the fourth question, the AG distinguished between being barred from meeting publicly and having grounds to enter closed session. The Open Meetings Law did not require the Board to meet in closed session. It did, however, give the Board the option to do so when § 143-318.11 grounds (such as protecting confidential tax information) were present, following the procedural requirements of § 143-318.11(c).

The AG deferred answering one question (about whether augmented Board orders were public) because related litigation was pending in the Court of Appeals.

Currency note

This opinion was issued circa 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Open Meetings Law and the tax-confidentiality statutes have been amended several times since 2004. The Tax Review Board's role and procedures have also evolved with administrative-tax-appeal reforms. Anyone with a current question about Board meeting procedures should pull current Chapter 143 and Chapter 105 provisions and any updated administrative rules.

Common questions

Q: At the time of the opinion, could a citizen attend a Tax Review Board hearing?
A: Yes. The Board was a public body under the Open Meetings Law, and the hearing portion (receiving evidence and arguments) had to be open.

Q: Could a citizen sit in while the Board deliberated?
A: Not when the Board was meeting "solely" to decide a pending petition. The § 143-318.18(7) exemption applied to that deliberation session.

Q: Could a Board member tell the press how a particular taxpayer's case was going?
A: No. § 105-259(a)(2) treated tax information as confidential, with only the narrow exceptions in § 105-259(b). Publication of the Board's order did not lift that obligation.

Q: Did the Board have to enter closed session to protect tax information?
A: No. Closed session was an option (under § 143-318.11), not a mandate. The Board had to follow the closed-session procedures in § 143-318.11(c) if it chose to use it.

Background and statutory framework

The North Carolina Tax Review Board reviewed administrative decisions of the Secretary of Revenue. Its statutory home included §§ 105-269.2, 105-122(c)(2), and 105-130.4(t)(1). The opinion canvassed those statutes and concluded none of them exempted the Board from the Open Meetings Law.

The interpretive backbone of the opinion was two-part:

1. Open Meetings Law presumption of openness. The AG cited News & Observer Publishing Co. v. Interim Board of Education, 29 N.C. App. 37, 223 S.E.2d 580 (1976), for the rule that "exceptions to our open meetings law should be strictly construed and . . . those seeking to come within the exceptions should have the burden of justifying their action." That presumption controlled the analysis.

2. Statutory-construction baseline. The AG also cited State v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004), for the standard rule that the primary goal of statutory construction is to effectuate legislative intent. Nothing in the Tax Review Board's enabling statutes signaled an intent to carve it out of the Open Meetings Law.

The result was a layered framework. Hearings open. Deliberations exempt. Tax-information confidentiality persistent. Closed-session option available but not required.

The opinion was signed by J.B. Kelly (General Counsel) and Grayson Kelley (Chief Deputy Attorney General).

Citations

• N.C.G.S. § 143-318.9 et seq. (Open Meetings Law)
• N.C.G.S. § 143-318.10 (public-body definition)
• N.C.G.S. § 143-318.11 (closed-session grounds)
• N.C.G.S. § 143-318.18(7) (quasi-judicial deliberation exemption)
• N.C.G.S. § 105-259 (tax information confidentiality)
• N.C.G.S. § 132-1 et seq. (Public Records Act)
• News & Observer Publishing Co. v. Interim Board of Education, 29 N.C. App. 37, 223 S.E.2d 580 (1976)
• State v. Hooper, 358 N.C. 122, 591 S.E.2d 514 (2004)

Source

• Landing page: https://ncdoj.gov/opinions/applicability-of-open-meetings-law-to-tax-review-board-proceedings/

Original opinion text

1. Are meetings of the Tax Review Board, whether regular or augmented by the participation of the Secretary of Revenue, open to anyone other than: taxpayer and his invitees/counsel/advisors; members of the Board and staff to the Board; and representatives of the Departments of Revenue and Justice?

Response: Yes. The Tax Review Board is a public body. N.C.G.S. § 143-318.10 (2004). Accordingly, the Tax Review Board must comply with the Open Meetings Law. N.C.G.S. § 143-318.9 to -318.18 (2004). The Open Meetings Law provides exemptions from the Act as set out in North Carolina General Statutes Section 143-318.18. Section 143-318.18 provides that the Open Meetings Law does not apply to:

Any public body subject to the Executive Budget Act (G.S. 143-1 et seq.) and exercising quasi-judicial functions, during a meeting or session held solely for the purpose of making a decision in an adjudicatory action or proceeding.

N.C.G.S. § 143-318.18(7) (2004). The Tax Review Board is subject to the Executive Budget Act and exercises quasi-judicial functions. Accordingly, the Tax Review Board is exempt from the Open Meetings Law while it is meeting "solely for the purpose of making a decision" in a petition pending before the Board. By its very terms, the exemption only applies to the deliberations of the Tax Review Board. The exemption does not apply when the Tax Review Board is receiving evidence or arguments in a hearing prior to deliberating upon the evidence. Nor does this exemption apply when the Tax Review Board is meeting for any purpose other than deciding the outcome of a petition pending before the Board. See News & Observer Publishing Co. v. Interim Board of Education, 29 N.C. App. 37, 47, 223 S.E.2d 580, 586-87 (1976) ("exceptions to our open meetings law should be strictly construed and . . . those seeking to come within the exceptions should have the burden of justifying their action").

The applicable statutes (North Carolina General Statutes Sections 105-269.2, 105-122(c)(2) and 105-130.4(t)(1)) do not expressly or implicitly exclude the Tax Review Board from the scope of the Open Meetings Law. No such exclusion can be found in any other provision of the North Carolina General Statutes. It is our opinion that the General Assembly intended that the Tax Review Board should be treated the same under the Open Meetings Law as every other public body. See State v. Hooper, 358 N.C. 122, 125, 591 S.E.2d 514, 516 (2004) ("The primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute.").

2(a). May any officer or employee of the State of North Carolina, specifically including Board members, who participate in an official capacity on the Tax Review Board (regular or augmented) disclose publicly any information received, reviewed or discussed by the Board concerning any taxpayer or a taxpayer's tax information? If so, please be specific about the kind of information that is public.

Response: Employees and Officers of the State, including members of the Tax Review Board are prohibited from disclosing any tax information as defined in North Carolina General Statutes Section 105-259(a)(2)(2004). The only exceptions are those enumerated in paragraphs (1) through (29) of subsection (b).

2(b). If the case arises under G.S. § 105-241.2, does the answer to question (a), above, vary by whether the point of discussion/disclosure is prior to or after publication of the order pursuant to G.S. § 150B-21.17(a)(5)? Specifically, are Board members and staff to the Board required by any considerations of quasi-judicial conduct or by provisions of Chapter 105 to refrain from such disclosure or discussion, even after publication of the order?

Response: Members of the Tax Review Board and staff must comply with both the confidentiality obligations of North Carolina General Statutes Section 105-259(b) and the obligations for disclosure set forth in the Public Records Law, N.C.G.S. § 132-1 et seq., with respect to the release of records and other information. That obligation does not vary based upon whether the Tax Review Board receives a request for information prior to or after publication of an order by the Tax Review Board.

3. Is it correct that, by virtue of disparate statutory treatment, the "regular Board" decisions on administrative review of the Secretary of Revenue are ultimately made public, but those of the augmented Board are not made public?

Response: There is a matter pending before the North Carolina Court of Appeals involving the appeal rights from orders issued by the Tax Review Board. The decision in that case may impact our analysis of the question you have posed. Therefore, consistent with our practice of not issuing opinions on legal issues related to pending matters, we are deferring our response to this question. We will revisit this question when the Court of Appeals renders a decision.

4. Does G.S. § 143-318.11(a)(1) combine with G.S. § 132-1.1(b) and G.S. § 105-259 to require that the Tax Review Board meetings must be closed sessions to prevent the disclosure of information that is confidential and/or not considered a public record?

Response: No. See response to Question No. 1. The Board may enter into a closed session for the limited purposes enumerated in North Carolina General Statutes Section 143-318.11(2004). The methodology for entering into a closed session is set forth at North Carolina General Statutes Section 143-318.11(c) (2004). Compliance with North Carolina General Statutes Section 105-259(2004) may provide a basis for a motion by a Board member to close an open meeting, pursuant to North Carolina General Statutes Section 143-318.11(c)(2004), under certain circumstances, for example to receive evidence concerning tax information presented by a state employee.

We hope the foregoing proves helpful. Please advise if we may be of further assistance.

Sincerely,

J.B. Kelly
General Counsel

Grayson Kelly
Chief Deputy Attorney General