Are NC Tax Review Board hearings open to the public, and can board members publicly discuss the taxpayer information they see?

Plain-English summary

The NC Tax Review Board hears appeals from decisions of the Secretary of Revenue. It was unclear whether its hearings had to be open to the public under the NC Open Meetings Law, or whether the board could conduct everything in private given that tax information is statutorily confidential.

The Treasurer asked four specific questions. The AG's answers, in plain English:

1. Are Tax Review Board meetings open to the public? Yes, generally. The Tax Review Board is a "public body" under § 143-318.10, so the Open Meetings Law applies. There is a narrow exemption in § 143-318.18(7) for public bodies subject to the Executive Budget Act that are "exercising quasi-judicial functions" and meeting "solely for the purpose of making a decision in an adjudicatory action." The Tax Review Board fits that bill, but the exemption applies only to the deliberation session, not to taking evidence or argument.

2. Can a Board member or staff person publicly disclose tax information from a case? No. § 105-259 prohibits disclosure of tax information by State employees and officers, with 29 carefully enumerated exceptions in subsection (b). Even when the Open Meetings Law would otherwise mandate openness, tax confidentiality rules constrain what can actually be said.

3. Does the answer change after publication of the Board's order? No. The tax confidentiality obligations of § 105-259 and the Public Records Law disclosure obligations of Chapter 132 both apply, regardless of whether a request comes in before or after the Board has published an order.

4. Does tax confidentiality require Tax Review Board meetings to be closed? No. The Board may enter a closed session for the limited reasons in § 143-318.11, following the procedure in § 143-318.11(c). Tax confidentiality under § 105-259 might support a closed-session motion in particular circumstances (e.g., to receive evidence about specific taxpayer information), but it does not flip the default rule.

There was a fifth question (3) about whether the "regular Board" and the "augmented Board" had different public-disclosure rules, but the AG deferred answering that one because the issue was pending before the NC Court of Appeals.

The opinion is signed by J.B. Kelly (General Counsel) and Grayson Kelly (Chief Deputy AG).

Currency note

This opinion was issued in 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 structure of NC tax administration, including the Tax Review Board, has been revised since 2004 by various session laws. Anyone applying the open-meetings rule to a current Tax Review Board (or its successor body) should confirm the present statutory framework and any controlling court decisions.

Common questions

Q: What's the difference between "regular" and "augmented" Tax Review Board?
A: The Board can sit in a regular configuration or one augmented by the participation of the Secretary of Revenue, depending on the matter. The opinion does not parse the distinction further and deferred the question about how their public-disclosure rules differ.

Q: Can a taxpayer waive confidentiality?
A: The opinion does not address waiver. The statutory confidentiality rule in § 105-259 contains 29 enumerated exceptions; some of them may permit disclosure in cases where the taxpayer consents or where the dispute requires it.

Q: Why was the quasi-judicial exemption written narrowly?
A: The AG cited the long-standing principle (from News & Observer Publishing Co. v. Interim Board of Education) 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." Allowing the exemption to swallow hearings as well as deliberations would let agencies bury much of their adjudicative work.

Q: Can the Board take minutes during a closed session?
A: Yes, the public body must "keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired." § 143-318.10(e). Those minutes are public records but may be withheld from inspection so long as inspection would frustrate the purpose of the closed session.

Q: Does this opinion control private-party tax appeals before regular courts?
A: No. The opinion is about the Tax Review Board's hearings and deliberations. Tax appeals heard by the Office of Administrative Hearings, the trial courts, or the Court of Appeals are governed by their own procedural rules, including their own confidentiality protections.

Background and statutory framework

The Open Meetings Law (NCGS Ch. 143, Art. 33C) is North Carolina's general transparency statute for public bodies. It requires open meetings, public notice, and recorded minutes, with limited exceptions for executive sessions on specific topics enumerated in § 143-318.11 and one quasi-judicial-deliberation carve-out in § 143-318.18(7).

The Tax Review Board sits at the intersection of two tensions: government transparency (Open Meetings, Public Records) and individual taxpayer privacy (§ 105-259). The AG's opinion threads these by reading the Open Meetings Law to apply by default, the quasi-judicial exemption to apply narrowly to deliberation, and the tax confidentiality rules to constrain what is said even in open session.

The deferred question (whether augmented-Board orders should be made public differently from regular-Board orders) reflects a real procedural difference that was working its way through the Court of Appeals at the time. AG opinions routinely decline to weigh in on issues actively in litigation.

Citations

• N.C.G.S. § 143-318.9 to -318.18 (Open Meetings Law)
• N.C.G.S. § 143-318.18(7) (quasi-judicial deliberation exemption)
• N.C.G.S. § 143-318.11 (closed session procedure)
• N.C.G.S. § 143-318.10 (public body definition, minutes)
• N.C.G.S. § 105-259 (tax information confidentiality)
• News & Observer Publishing Co. v. Interim Board of Education, 29 N.C. App. 37 (1976)
• State v. Hooper, 358 N.C. 122 (2004)

Source

• Landing page: https://ncdoj.gov/legal-services/archived-opinions/

Original opinion text

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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 the 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