TaxProf Blog

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

Monday, November 5, 2018

NY Times: Democrats Eye Trump’s Tax Returns, With Mnuchin In The Middle

Trump Tax ReturnsNew York Times, Democrats Eye Trump’s Tax Returns, With Mnuchin in the Middle:

Democrats are preparing to use an obscure law to try to obtain a copy of President Trump’s tax returns if they win control of the House or Senate — a scenario that could force one of the president’s most trusted aides to reveal his most closely guarded secret.

Steven Mnuchin, the Treasury secretary, said in an interview that he would honor any legal requests from Congress to release the president’s tax returns, which are stored in a vault at the Internal Revenue Service. But the demand would undoubtedly thrust Mr. Mnuchin into the fraught position of balancing his loyalty to Mr. Trump with a legal requirement to deliver the returns.

“The first issue is they would have to win the House, which they haven’t done yet,” Mr. Mnuchin said during an interview in Jerusalem last week. “If they win the House and there is a request, we will work with our general counsel and the I.R.S. general counsel on any requests.”

Mr. Mnuchin said his team would analyze any demands for the president’s returns and fulfill them if required by law. Asked whether a request made for political purposes would be legal, Mr. Mnuchin demurred, saying he did not want to stake out any legal positions. His team has not yet studied the issue, he said.

An Internal Revenue Service provision stemming from the 1920sappears to give the Trump administration little legal room to ignore such a request. The law states that the leaders of the House and Senate tax-writing committees have the power to request taxpayer information from the Internal Revenue Service and asserts that “the secretary shall furnish such committee with any return or return information specified in such request.”

“On a plain reading of the statute, I think the baseline ought to be, they ask for taxpayer information, they’re entitled to it,” said Neal Wolin, who served as the Treasury Department’s general counsel from 1999 to 2001. ...

[A]fter withholding the documents for so long, Mr. Trump is unlikely to hand over his taxes without a fight. Rudolph W. Giuliani, Mr. Trump’s personal lawyer, said this month that it would be a struggle for Democrats to prove that they have a legitimate oversight objective and that it would be a “heck of a good battle” for the president. ...

Most tax experts agree that Congress has the authority to request taxpayer returns. There is some legal debate about whether the motivations for such a request matter and under what circumstances the returns can be made public.

Andy Grewal, a professor at the University of Iowa College of Law, argued in the Yale Journal on Regulation last year [Can Congress Get President Trump’s Tax Returns?] that Mr. Trump could order the I.R.S. not to disclose his returns if he can make the case that the congressional request has been made out of “personal animus” rather than for legitimate legislative reasons.

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Let's pass a law (retroactively) that requires ALL members of Congress, as well as POTUS, to reveal their most recent 10 years of tax returns. Whether under audit or not.

If we're going to weaponize tax returns for political purposes, I prefer it be a weapon of mutual assured destruction.

Posted by: ruralcounsel | Nov 5, 2018 9:34:38 AM

No one is proposing "weaponizing tax returns."

Trump promised to show his. He never did. Tellingly, he would not even show the anodyne audit letter he claimed (falsely) blocked disclosure.

Given that Trump lost two income tax fraud trials, as well as the findings of "outright fraud" last month in the meticulously reported NYTimes investigation, and the NYState AG finding of criminal fraud in the Trump charitable foundation, Congress has a duty to examine Trump's tax returns -- personal, business and gift.

Posted by: David Cay Johnston | Nov 6, 2018 9:11:23 AM