TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, February 16, 2017

Grewal:  Can Congress Get President Trump’s Tax Returns?

Trump Tax ReturnsFollowing up on my previous post, George K. Yin (Virginia), Congress Already Has The Power To Obtain And Release Trump’s Tax Returns: Andy Grewal (Iowa), Can Congress Get President Trump’s Tax Returns?, Yale J. on Reg.: Notice & Comment (Feb. 13, 2017):

The statutory authority for any congressional requests would probably come from Sections 6103(f)(1) & (2) of the tax code. Under (f)(1), some committees of Congress can request disclosure of Trump’s returns and can examine those returns privately. Under (f)(2), a non-partisan career official, the Chief of Staff of the Joint Committee on Taxation (JCT), may also request and privately examine those returns. Professor Yin argues that information obtained through Section 6103(f) can be subsequently disclosed to the public, when public disclosure serves a legitimate legislative purpose. ...

Even if a congressional committee requests President Trump’s tax returns from the IRS, President Trump may have a constitutional defense to disclosure. That is, although Section 6103(f) is phrased in absolute terms — it allows tax committees and the JCT Chief of Staff to obtain tax return information, without qualification — any congressional action, including requests for information, must come within the scope of legislative powers granted by Article I of the Constitution. And a request for President Trump’s tax returns, if made for purely political purposes, may exceed legislative powers. ...

Though I do not have a crystal ball, I suspect President Trump would refuse any congressional request for his tax returns, just as he has repeatedly refused public and media requests for them. It’s theoretically possible that the IRS, independently of the President, could transmit those returns to a congressional committee, but the IRS takes everyone’s tax privacy very seriously. And though I can only speculate, I do not foresee IRS staff contradicting nondisclosure orders from the White House. One should also be reminded that while there were leaks from our national security agencies to the press during the last election season, the IRS never whispered anything about Trump’s taxes to anyone. ...

I would prefer that specific IRS personnel be kept out of this current political controversy, and I would encourage commentators not to target the JCT Chief of Staff regarding his powers under Section 6103(f)(2). Though my scholarship shows that I’m more than happy to criticize both the IRS and the JCT regarding their institutional features, dragging specific IRS or JCT personnel into a political fight strikes me as unseemly, given the seriousness and professionalism with which they perform their public duties.

http://taxprof.typepad.com/taxprof_blog/2017/02/grewalcan-congress-get-president-trumps-tax-returns.html

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Comments

Why not just leak them to the press, like before the election? I certainly wouldn't put the commission of more felonies past the opposition party these days...

Posted by: MM | Feb 16, 2017 4:07:34 PM

No one cares. The people who didn't give a fig how President Obama managed to have a whole bunch of un-specified "foreign income" every year, just want to harp on President Trump because they hate not getting their way. They are becoming tiresome.

Posted by: Tina | Feb 16, 2017 7:43:22 PM