Thursday, April 27, 2017
Following up on my previous post, The Quick And Easy Way To See Trump’s Tax Returns: Daniel Hemel (Chicago), Can New York Publish President Trump's State Tax Returns?, 127 Yale L.J. Forum ___ (2017):
Breaking from a decades-old norm of presidential tax transparency, Donald Trump has refused to make his federal income tax returns available for public inspection. Congressional leaders have blocked bipartisan legislation that would compel the President to disclose his returns. New York State, however, has a unique opportunity to ensure that the practice of presidential tax transparency endures. As a longtime New York resident, President Trump files state tax returns that contain most of the information found in his federal filings. A bill pending in the New York State Legislature would direct state tax authorities to release returns filed by the President and statewide elected officials. If the bill becomes state law, it will do much to protect the norm of presidential tax transparency from Trump’s attack.
This essay considers the legal issues surrounding New York’s potential disclosure of President Trump’s state tax returns. It anticipates and addresses arguments that state disclosure would violate the Bill of Attainder Clause, the constitutional right to privacy, due process limits on retroactivity, and restrictions on state interference in national political processes. It also examines federal laws protecting taxpayer privacy and considers whether New York’s publication of the President’s state tax filings would violate the Internal Revenue Code’s prohibition on disclosure of returns and return information. The essay concludes that federal law does not prevent New York from adopting and enacting legislation that would require the release of the President’s state tax returns. New York can—and, this essay argues, should—publish the President’s state tax returns if Trump himself and his allies in Congress refuse to act.