Wednesday, March 13, 2019
Andy Grewal (Iowa) presents The President's Tax Returns at UCLA today as part of its Colloquium on Tax Policy and Public Finance hosted by Jason Oh:
For around 40 years, U.S. Presidents and major-party Presidential candidates have publicly released their personal income tax returns. However, during the last election cycle, candidate Donald Trump broke from this recent tradition and did not disclose them. This nondisclosure ultimately did not imperil his candidacy, and he became the 45th President of the United States.
But calls for the President’s tax returns have continued. Many Democratic legislators believe that the President’s tax returns could contain important information related to his apparent conflicts of interest and his foreign connections. However, for the last two years, the Republican-controlled Senate and House of Representatives declined to pursue those returns.
With the House now under Democratic control, legislators have renewed their interest in the President’s tax returns and their ability to obtain them. These legislators have pointed to Section 6103(f)(1) of the tax code, which states that congressional tax committees may request from the IRS anyone’s tax return or tax return information (collectively, “return information”). They also believe that the IRS lacks any discretion here, because the statute provides that the IRS “shall” comply with any such congressional request. The literal language of the statute supports their interpretation.
But this Article argues that a congressional request under Section 6103(f)(1) nonetheless faces substantial limits. Part II briefly surveys the legislative history related to tax privacy and the circumstances that led to the Section 6103(f)(1)’s enactment. Part III examines the general constitutional principles related to Congress’s investigative authority and argues that any congressional request for return information must fulfill a legitimate legislative purpose. Though Section 6103(f)(1) might speak in unqualified terms, that statute cannot establish congressional access to return information beyond that provided by the Constitution.
Part IV examines whether a request for the President’s tax return information automatically satisfies the legitimate legislative purpose standard and argues that it does not. Congress enjoys near-automatic access to a President’s tax returns only in the impeachment context. Part V turns to current events and explores some legal issues that may arise if the dispute between the President and House Democrats proceeds to court.