The secrecy of returns must be guarded except as follows:

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1.     a.    Except as is otherwise specifically provided by law, the tax commissioner, the tax commissioner’s deputies, agents, clerks, and other officers and employees, may not divulge nor make known, in any manner, whether or not any report or return required under this chapter has been filed, the amount of income, or any particulars set forth or disclosed in any report or return required under this chapter, including the copy or any portion thereof or information reflected in the taxpayer’s federal income tax return that the tax commissioner may require to be attached to, furnished with, or included in the taxpayer’s state income tax return. This provision may not be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns, and the items thereof, or the inspection by the attorney general or other legal representatives of the state of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted to recover any tax or any penalty imposed by this chapter. This section does not prohibit disclosure of the fact that a report or return required under this chapter has not been filed if the disclosure is made to further a tax investigation being conducted by the tax commissioner. Reports and returns must be preserved for three years and thereafter until the tax commissioner orders them to be destroyed.

b.    A court of competent jurisdiction may issue an order or subpoena directing the tax commissioner to disclose state tax return information to a local, state, or federal law enforcement official conducting a criminal investigation if the court determines that the facts submitted by the applicant satisfy the following:

(1) There is probable cause to believe that a specific criminal act has been committed and that the return or return information constitutes evidence of a criminal offense or may be relevant to a matter relating to the commission of the criminal offense; (2) The return or return information is sought exclusively for use in a criminal investigation or proceeding concerning such act; and

(3) The information sought to be disclosed cannot reasonably be obtained under the circumstances, from another source.

c.    Before obtaining an order under this subsection, a law enforcement official may request information from the tax commissioner as to whether a taxpayer, which is the subject of a criminal investigation for which a return or return information is or may be relevant to the commission of a criminal offense, has complied with the requirements of this chapter. For purposes of this request, the tax commissioner is limited to stating that the taxpayer has or has not complied with these requirements.

d.    Except as required during court proceedings, tax return information disclosed to law enforcement under this section remains confidential during an active criminal investigation, after the investigation, after prosecution concludes, or until the time period for appeals has expired, whichever is later.

2.    Repealed by S.L. 1975, ch. 106, § 673.

3.    The tax commissioner, however, may permit the commissioner of internal revenue of the United States or the proper officer of any state or of the District of Columbia or of any territory of the United States, imposing an income tax similar to that imposed by    this chapter, or the authorized representative of any such officer or the authorized agent of the multistate tax commission, to inspect the income tax returns of any taxpayer, or may furnish to such officer or the officer’s authorized representative an abstract or copy of the return of income of any taxpayer, or supply the officer or representative with information concerning any item contained in any return, or disclosed by the report of any investigation of the income, or return of income, of any taxpayer, but such permission may be granted, or such information furnished, to such officers or representatives only if the statutes of the United States or of such other state or of the District of Columbia or of a territory of the United States, as the case may be, grant substantially similar privileges to the proper officer of this state charged with the administration of this chapter; provided, that any information furnished or made available by the tax commissioner to any other person pursuant to this subsection may be used by such person only for tax administration purposes; and provided, further, that similar information furnished or made available to the tax commissioner by a representative or officer of the United States or of any other state or of the District of Columbia or a territory of the United States may be used by the tax commissioner only for tax administration purposes.

4.    The tax commissioner is hereby authorized to furnish to workforce safety and insurance, to job service North Dakota, or to the secretary of state, upon their request a list or lists of employers showing only the names, addresses, and the tax department file identification numbers of such employers; provided, that any such list may be used only for the purpose of administering the duties of the requesting governmental unit.

5.    Notwithstanding any other provision of law relating to confidentiality of information contained on returns, the tax commissioner may use information for income and withholding tax compliance purposes contained on any federal form W-2 or federal form 1099 filed under subsection 3 or 4 of section 57-38-60, a fiduciary return filed under section 57-38-07, a return filed by a subchapter S corporation under section 57-38-32, or an information at the source return filed under section 57-38-42.

6.    Upon request, the tax commissioner may furnish to the unclaimed property division of the board of university and school lands, a taxpayer’s name, address, and federal identification number for identifying the taxpayer as the owner of an unclaimed voucher authorized by the tax commissioner or to locate the apparent owner of unclaimed property as provided under chapter 47-30.2.

7.    The tax commissioner, upon written request from the director of the North Dakota lottery, may provide a written statement to the director, employees, or agents of the North Dakota lottery, in which the tax commissioner is limited to stating that the lottery retailer applicant has complied or not complied with the requirements of this chapter.

The information obtained under this subsection is confidential and may be used for the sole purpose of determining whether the applicant meets the requirements of subsections 3, 4, and 5 of section 53-12.1-07.

8.    The tax commissioner, upon written request from the secretary of commerce of the United States, may furnish officers and employees of the bureau of census an individual taxpayer’s identification number and county of residence as reported on the individual’s return. However, any information obtained may be used only for the purpose of establishing migration methodologies in estimating the annual shifts in the state’s population. A person who receives return information under this subsection may not disclose the return information to any person other than the taxpayer to whom it relates except in a form that cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.

9.    The tax commissioner may disclose a taxpayer’s name, address, and identification number to the Bank of North Dakota for the sole purpose of administering the tax deduction for contributions to the North Dakota higher education savings plan.

10.    The tax commissioner may disclose confidential tax information to the insurance commissioner to be used for the sole purpose of suspending, revoking, placing on probation, refusing to continue or refusing to issue an insurance producer license, assessing a civil penalty, or investigating fraudulent insurance acts under the    insurance laws of this state. The tax information may be disclosed only upon written request that provides the taxpayer’s name, federal identification number, and address. The insurance commissioner may make a written request only if the insurance commissioner has started an investigation of an applicant or licensee on grounds other than failure to comply with chapter 57-38 or has started an investigation of a suspected or actual fraudulent insurance act. Upon receipt of the request, the tax commissioner may disclose whether the taxpayer has complied with the requirements of this chapter. If the taxpayer has not complied with these requirements, the tax commissioner may provide the tax type, the tax period for which a return has not been filed, and if the taxpayer has failed to pay any tax, the amount of tax, penalty, and interest owed. The information obtained under this subsection is confidential and may be used only for the purposes identified in this subsection. For the purposes of this subsection, a taxpayer is deemed in compliance with this chapter if the taxpayer has entered an agreement with the tax commissioner to cure the taxpayer’s noncompliance and the taxpayer is current with those obligations under the agreement.

11.    The tax commissioner may provide the department of commerce information obtained in the administration of the income tax under this chapter. A request by the department of commerce for information must be in writing and must be limited to information necessary to evaluate the degree of success and compliance with statutory or contractual performance standards established for employers who received North Dakota state economic development assistance. A request under this subsection does not require the tax commissioner to compile or create a record, including compiling or creating a record from electronically stored information, which does not exist. Information received by the department of commerce under this subsection may not be divulged by the department of commerce except in an aggregate format that does not permit taxpayer identification and any information contained in the returns or reports filed by a taxpayer.