Joshua Blank (UC-Irvine; Google Scholar) presents Presidential Tax Transparency, 40 Yale L. & Pol'y Rev. __ (2021), virtually at Stockholm University today hosted by Roger Persson Österman and Jérôme Monsenego:
Whether the public should have access to the tax returns of the President of the United States, and those who seek the office, is the focus of acute attention and debate. President Donald Trump’s refusal to disclose his tax returns throughout his campaigns and presidency has fueled multiple legislative public disclosure proposals. In March 2021, the U.S. House of Representatives passed legislation as part of the For the People Act of 2021 that would require Presidents, Vice Presidents, and nominees to publicly disclose several years of their tax returns through the Federal Election Commission. Dozens of state legislatures have considered similar requirements for candidates who seek to appear on state primary and general election ballots. Proponents of these measures argue that public disclosure of tax returns could expose conflicts of interest, reveal the President’s and candidates’ annual tax liability and tax rates, and, most importantly, enable the public to observe whether the President or candidates have engaged in tax evasion, pursued tax shelters and other tax avoidance, and participated in audits or tax controversies with the IRS.
This Article intervenes in the disclosure debate by exploring whether, and to what extent, mandatory public disclosure of tax returns would achieve the policy objective of enabling voters to observe candidates’ and elected officials’ compliance with the tax law. To consider this question, the Article examines information presented in federal income tax returns and reviews the publicly disclosed tax returns of Presidents, Vice Presidents, and major party candidates from President Richard Nixon through President Joseph Biden. The primary claim of this Article is that mandatory public disclosure of an elected official’s or candidate’s federal income tax returns alone would provide the public with only a partial and one-sided view of that individual’s tax compliance. This incomplete image is due to the structure of the federal income tax and tax returns themselves and opportunities for strategic reporting and disclosure by elected officials and candidates.
At the same time, the Article argues that public disclosure of tax compliance, if it were possible, could provide valuable information to the electorate, increase public understanding of the tax system, and bolster the sociological legitimacy of the IRS. To enhance the public’s ability to evaluate tax compliance, the Article presents an alternative model of mandatory public disclosure that would include public disclosure not only of tax returns, but also of documents and processes that would highlight tax actions of both candidates and elected officials and the IRS.