Present: All the Justices 

CLINCHFIELD COAL COMPANY 

 OPINION BY 

v. Record No. 000700 CHIEF JUSTICE HARRY L. CARRICO 

 January 12, 2001 

RONNIE L. ROBBINS, COMMISSIONER 

OF REVENUE, DICKENSON COUNTY 

FROM THE CIRCUIT COURT OF DICKENSON COUNTY 

Keary R. Williams, Judge 

 This case involves a declaratory judgment proceeding 

brought by Clinchfield Coal Company (Clinchfield) against Ronnie 

L. Robbins (Robbins), Commissioner of Revenue of Dickenson 

County. In a bill of complaint, Clinchfield sought a 

declaration that Robbins lacked the authority to employ Larry D. 

Sturgill, P.C., a private accounting firm (the Sturgill firm), 

and to appoint its members as deputy commissioners of revenue to 

conduct an audit of Clinchfield’s business tax records. 

Clinchfield also sought to have the trial court quash a summons 

requiring Clinchfield to produce certain records for the 

Sturgill firm’s use in conducting the audit. From a final 

decree denying the requested relief, we awarded Clinchfield this 

appeal. 

 Clinchfield, an affiliate of The Pittston Company 

(Pittston), is engaged in the business of mining and processing 

coal in Dickenson County. The County imposes a severance tax 

upon persons engaged in the business of severing and extracting 
coal in the County. Clinchfield files monthly severance tax 

returns and pays severance taxes to the County. 

 Robbins’ duties as commissioner of revenue include the 

enforcement of local taxes imposed by the County. On May 27, 

1998, Robbins entered into an “Auditing Agreement” with the 

Sturgill firm. The agreement made the Sturgill firm “solely 

responsible for providing services reasonably required to 

accomplish” work assignments involving “the acquisition of 

information necessary to conduct a random audit of the coal and 

gas severance(s) in Dickenson County.” 

 On June 23, 1999, the Sturgill firm notified Clinchfield 

that it had been selected for an audit of the coal severance 

taxes reported to Dickenson County for the year 1998 and that 

the audit would be conducted by the Sturgill firm’s 

representatives. The notice required Clinchfield to make 

available to the Sturgill firm’s auditors a number of its 

business records. 

 Clinchfield objected to the performance of the audit by the 

Sturgill firm as being unauthorized. Robbins then certified to 

the trial court his appointment of Larry D. Sturgill and four 

other members of the Sturgill firm as deputy commissioners of 

revenue and requested that they be allowed to qualify by taking 

and subscribing the oath required by law. By orders entered 

August 31, 1999, the trial court granted Robbins’ request and 

2
entered of record the appointments of the five members of the 

Sturgill firm as deputy commissioners of revenue. In September 

1999, each member took the oath prescribed by Code § 49-1, the 

same oath required of “[e]very person before entering upon the 

discharge of any function as an officer of this Commonwealth.” 

 In September 1999, a member of the Sturgill firm who 

identified herself as a deputy of Robbins contacted Pittston to 

reschedule a severance tax audit of Clinchfield’s records. In a 

letter to the Dickenson County Attorney on October 22, 1999, 

Pittston stated that it did not question the right of Robbins or 

the employees of his office to conduct an audit of Clinchfield’s 

records but asserted that Virginia law did not permit audits by 

“independent accountants even if they purport to have been 

‘deputized.’ ” Pittston asked the County Attorney to confirm 

that the audit by the Sturgill firm “cannot proceed.” 

 The County Attorney responded to Pittston on October 26, 

1999, that the audit would proceed and that a subpoena would be 

issued for Clinchfield’s records. On November 5, 1999, Robbins 

issued a summons requiring Clinchfield’s president to appear 

before Robbins on November 15, 1999, and produce a number of 

records for the severance tax audit. Robbins intended to 

provide the records to the five members of the Sturgill firm for 

their use in performing the audit. Clinchfield then filed its 

bill of complaint for declaratory judgment seeking, as part of 

3
the requested relief, to have the summons quashed. After a 

hearing, the trial court in its final decree refused to quash 

the summons. 

 Clinchfield’s first assignment of error alleges that 

Robbins lacked the authority to hire the Sturgill firm to 

conduct a tax audit of Clinchfield’s confidential business 

records. However, during oral argument, Robbins conceded that 

“the law in this Commonwealth is that [a commissioner of 

revenue] can’t hire a private firm, in and of itself,” to “audit 

a private citizen.” Robbins then took the position that a 

commissioner of revenue has the authority to “hire an 

individual, as a statutory employee, from an accounting firm to 

do the work.” 

 Clinchfield’s second assignment of error poses the question 

whether a commissioner of revenue possesses the authority to 

employ the members of a private accounting firm as deputy 

commissioners to conduct confidential tax audits. This becomes 

the dispositive question in the case. 

 Robbins maintains that the authority to appoint members of 

a private accounting firm derives from Code §§ 15.2-408(C), -

1603, and –1605(A). Code § 15.2-408(C) provides that a 

commissioner of revenue “may appoint such deputies, assistants 

and employees as he may require in the exercise of the powers 

conferred and in the performance of the duties imposed upon him 

4
by law.” Code § 15.2-1603 provides that a commissioner of 

revenue may “appoint one or more deputies, who may discharge any 

of the official duties of their principal during his continuance 

in office.” Finally, Code § 15.2-1605(A) defines an 

“[e]mployee” as “an employee or deputy” of, inter alia, a 

commissioner of revenue. 

 Citing several opinions of the Attorney General, Robbins 

argues that “a constitutional officer maintains exclusive 

authority over personnel matters within his office[,] giving the 

officer the discretionary power to appoint deputies.” See 1998 

Op. Atty. Gen. 30; 1986-1987 Op. Atty. Gen. 69; 1982-1983 Op. 

Atty. Gen. 105. Robbins references another opinion of the 

Attorney General in aid of his position that a commissioner of 

revenue may engage “part-time employees to conduct audits.” 

1991 Op. Atty. Gen. 281. 

 Continuing, Robbins argues that when he “deputized [the] 

five individuals,” they became part-time “statutory employees as 

defined by Virginia Code § 15.2-1605, which allows them to 

receive confidential tax information under Virginia Code § 58.1-

3(A)(2) in the line of duty to perform tax audits.” We disagree 

with Robbins.1

 Code § 58.1-3(A) provides in pertinent part as follows: 

5
Except in accordance with a proper judicial order or as 

otherwise provided by law, the . . . commissioner of the 

revenue . . . or any other state or local tax or revenue 

officer or employee . . . shall not divulge any information 

acquired by him in the performance of his duties with 

respect to the transactions, property, including personal 

property, income or business of any person, firm or 

corporation. . . . Any person violating the provisions of 

this section shall be guilty of a Class 2 misdemeanor. 

Subsection 2 excepts from the provisions of section A “[a]cts 

performed or words spoken or published in the line of duty under 

the law.” 

 Code § 58.1-3(A) was the subject of the 1991 opinion of the 

Attorney General referenced above. In that instance, the 

Attorney General was asked two questions, (1) whether a 

commissioner of revenue could engage part-time employees to 

conduct tax audits, and (2) whether a commissioner of revenue 

may employ “private firms either to conduct the audits or to 

provide personnel to work with a commissioner in conducting the 

audits.” 1991 Op. Atty. Gen. 281. (Emphasis added.) The 

Attorney General answered the first question by stating that 

“the confidentiality provisions of § 58.1-3 . . . are not 

violated by disseminating protected information to tax or 

revenue employees, including part-time employees, for the 

performance of their public duties.” 1991 Op. Atty. Gen. at 

281-82. 

 

1

 Robbins argued on brief that the five individuals would be 

considered as employees even under the common law. However, 

6
 With respect to the second question, the Attorney General 

noted that prior opinions of her office had reached different 

conclusions when addressing whether a commissioner of revenue 

could disclose confidential tax information to third parties. 

The Attorney General then explained as follows: 

 The different conclusions reached by these prior 

Opinions are based on the existence or nonexistence of the 

statutory authority for the third party to perform duties 

which require access to the tax information. If such 

statutory authority exists, the information is disclosed 

“in the line of duty under the law,” as provided in § 58.1-

3(A)(2). As a result, a commissioner of the revenue may 

disclose confidential tax information to a local tax 

collector employed by a county board of supervisors 

pursuant to the authority granted in § 58.1-3934 . . . . 

Likewise, a commissioner may provide confidential tax 

information to a local board of equalization pursuant to a 

statute, § 58.1-3379 . . . , requiring such boards to 

equalize assessments in the county and requiring local 

commissioners to call inequalities to the attention of the 

board. . . . 

 In contrast, a commissioner of the revenue may not 

disclose confidential tax information to outside assessors

engaged to audit taxpayers, to verify returns and to make 

statutory assessments for omitted items. See 1976-1977 

Att’y Gen. Ann. Rep. 34 (the “1976 Opinion”). The function 

of an outside assessor would be limited to appraising 

property voluntarily exhibited by the taxpayer and to 

submitting his appraised value to the commissioner. Id. at 

35. Based on the conclusion in the 1976 Opinion, it is my 

opinion that, because there is no statute that authorizes a 

commissioner of the revenue to engage outside auditors and 

thus to disclose confidential tax information pursuant to 

the commissioner’s or the auditor’s performance of his 

statutory duties, a commissioner is prohibited by § 58.1-3 

from granting an outside auditing firm access to such 

information. 

1991 Op. Atty. Gen. at 282 (footnote omitted) (emphasis added). 

 

Robbins abandoned this position during oral argument. 

7
 Although the construction of a statute by the Attorney 

General is not binding upon this Court, it is of “persuasive 

character.” Barber v. City of Danville, 149 Va. 418, 424, 141 

S.E. 126, 127 (1928). We find the Attorney General’s 1991 

opinion most persuasive on the question whether there is 

statutory authority for a commissioner of revenue to engage a 

private accounting firm to conduct audits or to provide 

personnel to do the work. And it is worthy of note that, 

although the opinion quoted above has been on the books since 

1991, the General Assembly has not seen fit to alter it in any 

way. The General Assembly “is presumed to have knowledge of the 

Attorney General’s interpretation of statutes, and the General 

Assembly’s failure to make corrective amendments evinces 

legislative acquiescence in the Attorney General’s 

interpretation.” City of Winchester v. American Woodmark Corp., 

250 Va. 451, 458, 464 S.E.2d 148, 153 (1995). 

 Here, as noted supra, Robbins has conceded he lacks the 

authority to employ a private accounting firm to perform tax 

audits. He maintains, however, that Code §§ 15.2-408(C) and –

1603 evince the legislative intent to allow commissioners of 

revenue to appoint deputies who become a commissioner’s 

statutory employees and to whom confidential information may be 

divulged “in the line of duty,” consonant with Code § 58.1-

8
3(A)(2). But we cannot find the legislative intent Robbins 

ascribes to Code §§ 15.2-408(C) and –1603. Indeed, given the 

circumstances of this case and the confidentiality provisions of 

Code § 58.1-3(A), we cannot perceive that the General Assembly 

intended to allow a commissioner of revenue to overcome the lack 

of authority to hire a private accounting firm by appointing the 

members of such a firm as deputy commissioners to conduct 

confidential tax audits. 

 The circumstances of this case are undisputed. During oral 

argument, Robbins acknowledged that his “Auditing Agreement” 

with the Sturgill firm was “still in effect,” that it “never was 

set aside or altered or amended in any fashion.” And, when 

Robbins was asked during his testimony below, “does your 

agreement run to [Larry Sturgill’s] firm or does it run to these 

individuals,” Robbins stated that the agreement “basically 

covers him or his employees.” 

 Thus, pursuant to the agreement, the Sturgill firm and its 

members, in the performance of services for Robbins, “shall 

operate as and have the status” of independent contractors and 

“shall not act or be” employees of Robbins “for any purpose.” 

The Sturgill firm’s members are not entitled to workers’ 

compensation or other benefits provided to Robbins’ regular 

employees. Robbins does not pay the salaries of the Sturgill 

firm’s members. Instead, he pays the firm an hourly rate for 

9
audit services based upon monthly bills submitted by the firm 

and the firm compensates the members.2 When Robbins was asked 

below whether the five people he had named as his deputies were 

“full-time employees” of the Sturgill firm and “on [the firm’s] 

payroll,” he replied in the affirmative. 

 This case requires application of the well-known maxim that 

a person may not do indirectly what he cannot do directly, 

Phillips v. Schools, 211 Va. 19, 22-23, 175 S.E.2d 279, 281 

(1970). Accordingly, we will reverse the judgment of the trial 

court and enter final judgment in favor of Clinchfield declaring 

that Robbins lacked the authority to appoint the members of the 

Sturgill firm as deputy commissioners of revenue. Our judgment 

will also quash the summons requiring Clinchfield to produce its 

business tax records for use by the members of the Sturgill 

firm. 

Reversed and final judgment. 

 

2

 Robbins testified below that he secured funds from the "Coal 

Road Committee" to finance his coal severance tax audits. He 

said there is such a committee "in all the coalfield counties," 

and the committees distribute funds derived from "the coal and 

gas severance" tax. 

10