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December 17, 2015
Practitioners: Brett R. Carter and Mark F. Sommer
by Maria Koklanaris

Full Text Published by Tax Analysts®

For their careers of advocating -- and sometimes litigating -- for transparency in tax administration and government in general, State Tax Notes recognizes the practitioners Brett R. Carter of Bradley Arant Boult Cummings LLP, Nashville, Tennessee, and Mark F. Sommer of Frost Brown Todd LLC, Louisville, Kentucky.

Carter is scheduled for oral arguments January 26 before the Tennessee Court of Appeals in Carter v. Martin. He is appealing after the Tennessee Chancery Court denied his open-records request for documents produced in the course of a $350,000 state-funded tax study, the results of which were used to recommend raising taxes in Tennessee.

Carter told Tax Analysts that there is simply no reason for the study not to be made public. He said his case "presents the most aggressive assertion of the tax administration information confidentiality provisions to date" because the Department of Revenue is attempting not to protect a particular taxpayer or tax program but to deny access to work done by the commissioner of revenue to develop estimates for the governor's budget.

Brett R. Carter"The fundamental basis for transparency screams for the study to be produced, and it is offensive to the business community that a court petition had to be filed to seek the study," Carter said. "It is a classic situation in which a state agency -- here, the Department of Revenue -- is taking a measure that was intended to be a shield and turning it into a sword to hide information related to the recommendation to raise taxes."

Carter said that if the court of appeals applies a plain reading to the open-records statute, it should order the disclosure of the tax study.

Sommer's case, Sommer v. Finance and Administration Cabinet, is also on appeal. But in this case, in which Sommer is joined by Tax Analysts, it is the DOR that lost in the lower court. In August 2014 the Franklin Circuit Court agreed with Sommer and Tax Analysts that the DOR must release redacted copies of its final rulings under Kentucky's Open Records Act.

Mark F. SommerSommer said that briefing for the case should be completed by the end of the first quarter of 2016 and that he expects the appeals court to uphold the decision. "We think that Judge [Phillip J.] Shepherd wrote a well-reasoned, fair, analytical opinion that was appropriately balanced between the need for privacy and the need for disclosure," he said.

In the 2015 legislative session, Sommer also participated in a working group advocating for transparency legislation. Sommer said the legislature was in a short session in 2015, so HB 361 was not considered, but he said the measure from Rep. Tommy Thompson (D) would be back in 2016. It would promote transparency efforts, such as getting redacted rulings posted, and would place strict rules on deadlines and interest limits on the DOR.

Although he was not involved, Sommer also applauded a case in which Kentucky's attorney general found that a county board of assessment appeals had violated the open-meetings act when it excluded a taxpayer who was there to have his property tax appeal heard.

"That was a very big step for transparency," Sommer said, adding that it's an issue worth fighting for.

"No one credibly asserts that tax return numbers, identification numbers, names, etc., should be public, but redaction can cure all in this regard," Sommer said. "There has been a fraternity of tax advisers with inside information," which is wrong, he said.

"The system as a whole benefits from all having access, including the legislature and the media," Sommer said. "In the end, how is more publicly available tax information ever not a good thing?"

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