The Search for the Trump Tax Returns

Rep. Richard E. Neal, Chairman of the House Ways and Means Committee, has issued a formal request to IRS Commissioner Charles P. Rettig to furnish tax information pertaining to President Trump. The initial request was made on April 3.

In his April 13 letter, Neal outlines at length that the provisions of the operative statute, 26 U.S.C. § 6103(f), are “unambiguous and raise[] no complicated legal issues that warrant supervision or review by the Department of the Treasury . . . or the Department of Justice.” Further, he points out that:

It is not the proper function of the IRS, Treasury, or Justice to question or second guess the motivations of the Committee or its reasonable determinations regarding its need for the requested tax returns and return information. Indeed, the Supreme Court has consistently noted that the motivations underlying Congressional action are not to be second guessed, even by the courts. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 509 (1975) (“The wisdom of congressional approach or methodology is not open to judicial veto.”); Watkins, 354 U.S. at 200 (“But a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function.”); Barenblatt v. United States, 360 U.S. 109, 132 (1959) (“So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”).

Neal could have gone further. In his law review article at 26 Tax Lawyer 103 (2015), Preventing Congressional Violations of Taxpayer Privacy, Professor George K. Yin stated that:

[An] important factor influencing Congress in 1924 was a Senate investigation of the Bureau of Internal Revenue (BIR) (predecessor to the modern day Service). The onset of that investigation earlier in 1924 had been stymied by the inability of the investigating committee to examine tax returns. In addition, the Senate had approved the investigation in part because of a bitter, public feud between Treasury Secretary Mellon and Senator Couzens (R-MI) in which the former was perceived by some in Congress—probably mistakenly—to have unlawfully publicized the latter’s tax returns[.]

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Providing Congress with direct access to the information would potentially be a way to even the score between the two branches.

Yin reports that there was a significant dispute over the question of whether the return information obtained by Congress could be publicly disclosed. That dispute continued over the years, resulting in changes to §6103(f) in 1976. He concludes that:

Congress’s failure [in 1976] to require the tax committees to sit in closed executive session when submitting information to the House and Senate should, therefore, be viewed as a conscious decision to preserve an essential outlet for public disclosures. Importantly, however, there is no evidence indicating any intention to broaden the discretion of the committees beyond that provided them in 1924. As previously described, Congress expected the tax committees to protect the confidentiality of the information and to make public disclosures only for a legitimate committee purpose.

Like, oh I don’t know, impeachment perhaps.

Posted by Stuart Levine.