(concurring and dissenting):
I concur in the result reached by the majority. A writ of mandamus is available only “if ordinary remedies are inadequate and there are present exceptional and extraordinary circumstances which require the issuance of an extraordinary writ to prevent a grave miscarriage of justice.” Hartley Pen Co. v. United States Dist. Ct., 287 F.2d 324, 328 (9th Cir. 1961). No such extraordinary circumstances are presented by this ease.
I dissent, however, from the views expressed by the majority. Even assuming, without deciding, that it has properly distinguished Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), its views concerning the discovery of federal tax returns are inaccurate.
Although the literal language of 26 U.S.C. §§ 6103 and 7213 prohibits the disclosure of only those tax returns in the government’s possession, the statutes should not be construed so narrowly. Statutes have both textual and contextual meaning. Where the wording of a statute does not express fully the policies underlying the statute, courts should “give it effect in accord with its design and purpose, sacrificing, if necessary, the literal meaning in order that *1036the purpose may not‘fail.” Acheson v. Fujiko Furusho, 212 F.2d 284, 295 (9th Cir. 1954) (six-judge panel), quoting Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67 L.Ed. 199 (1922).
The most frequently mentioned policy behind the statutes protecting the confidentiality of federal tax returns is that of protecting the taxpayer’s privacy. See, e.g., Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556 (S.D.N.Y.1964); Richland Wholesale Liquors v. Joseph E. Seagram & Sons, Inc., 40 F.R.D. 480 (D.S.C.1966); Kingsley v. Delaware, L. & W. R.R. Co., 20 F.R.D. 156 (S.D.N.Y.1957). An equally important but less frequently mentioned consideration is the protection of the public fisc. See Federal Sav. & Loan Ass’n v. Krueger, 55 F.R.D. 512 (N.D.Ill.1972). Because of our system of taxation through self assessment, the maximization of federal revenue hinges on complete and detailed reporting by each taxpayer. Such reporting is in a large part nourished by the confidential nature of the tax returns. In these times of mushrooming federal budgets and increasing complexities in the federal tax laws, we should loathe tampering with the success of the reporting system.
That policies such as these are not to be ignored was demonstrated when Congress overruled St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961). In that case St. Regis had filed detailed census reports with the Bureau as required by the Census Act but had retained copies of the reports in its own files. While investigating St. Regis, the Federal Trade Commission obtained a district court order directing St. Regis to turn over its copies of the reports. Before the Supreme Court, St. Regis argued that § 9 of the Census Act which prohibited personnel in the Department of Commerce from allowing those outside the department to examine the reports should be construed to provide the same protection for copies which are retained by the reporting party. The Court rejected this argument.
We fully realize the importance to the public of the submission of free and full reports to the Census Bureau, but we cannot rewrite the Census Act. It does not require petitioner to keep a copy of its report nor does it grant copies of the report not in the hands of the Census Bureau an immunity from legal process. Ours is a duty to avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result. That the statute does not do. Congress did not prohibit the use of the reports per se but merely restricted their use while in the hands of those persons receiving them, i.e., the government officials. . . .
Id. at 218, 82 S.Ct. at 295.*
The decision had an extremely adverse effect on the Bureau’s ability to gather complete and accurate data. S.Rep.No. 2218, 87th Cong., 2d Sess. (1962), 1962 U.S.Code of Cong. & Admin.News 3190. Consequently, Congress quickly overruled the decision by amending § 9 to provide that copies of census reports retained by individuals are immune from legal process and inadmissible as evidence without the reporting party’s *1037.consent. In recommending the amendment, the Senate Report stated, “Prior to the decision of the Supreme Court, it had been generally assumed that copies of such census reports did, in fact, have confidential status equivalent to that of the original reports filed with the Bureau of the Census.” Id. at 3189.
The majority’s observation that numerous district courts have held federal tax returns to be discoverable “in appropriate circumstances” is correct, but incomplete. It is true that several cases have held that the returns were discoverable upon a mere showing that they might contain information that would lead to other relevant information. See, e.g., Jensen v. Boston Ins. Co, 20 F.R.D. 619 (N.D.Cal.1957); Connecticut Mut. Life Ins. Co. v. Shields, 18 F.R.D. 448 (S.D.N.Y.1955); Paramount Film Dis-trib. Corp. v. Ram, 91 F.Supp. 778 (E. D.S.C.1950). In the vast majority of cases, however, the courts have prefaced discovery with the fact that the party seeking to protect its return had chosen to litigate issues relating to its income. See, e.g., Federal Sav. & Loan Ass’n v. Krueger, supra; Wiesenberger v. W. E. Hutton & Co, supra; Kingsley v. Delaware, L. & W. R.R. Co, supra; Connecticut Importing Co. v. Continental Distilling Corp, 1 F.R.D. 190 (D.Conn.1940).
Those latter cases demonstrate a proper balancing of the need for interpreting 26 U.S.C. §§ 6103 and 7213 narrowly in order to facilitate liberal discovery and the need for interpreting the statutes broadly in order to effectuate their underlying policies. Copies of tax returns retained by a taxpayer should be accorded the protection of 26 U.S.C. §§ 6103 and 7213, unless the taxpayer chooses to litigate issues concerning the taxpayer’s income. Once the taxpayer so chooses, he waives his privilege and consents to all legitimate inquiries into his income.
Insofar as the petitioners in this case have not sought to litigate any issue concerning their income, their federal tax returns should remain privileged.
The Court went on to note that “although tax returns, like these census reports, are made confidential within the government bureau . . . copies in the hands of taxpayers are held subject to discovery.” This dictum was supported by citing United States v. O’Mara, 122 F.Supp. 399 (D.D.C. 1954), with the notation that O’Connell v. Olsen & Ugelstadt, 10 F.R.D. 142 (N.D.Ohio 1949), is contra. Perhaps an analysis of the tax return cases would have brought the Court to the same conclusion as reached by Congress in overruling St. Regis.