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Is the IRS required to file the President's tax returns if Congress so requests?
According to Treasury Secretary Steven Mnuchin, the answer is a categorical no – at least as regards the request made by Democratic Congressman Richard Neal on 3 April. Mnuchin said that he "lacked a legitimate legislative objective".
Although many Americans have been interested in reviewing Donald Trump's tax returns since the 2016 campaign, it was the first time House Democrats, newly empowered. , were officially seeking these documents. The president claimed that he could not release them because they were audited.
As a tax teacher and a former lawyer with the Internal Revenue Service, I think the law clearly states that the IRS must refer Trump's statements to the House Ways and Means Committee, chaired by Neal.
But there is the law and the political reality – and I think it is unlikely that he will ever get the benefits.
Congress and the IRS
The current battle over Trump's tax returns began with the letter that Neal wrote to the IRS commissioner requesting the president's papers for the years 2013 to 2018.
Neal argued that his committee needed the records to determine whether the IRS was verifying presidential statements properly in accordance with the agency's policy.
Although tax legislation requires the IRS to maintain the confidentiality of US personal tax returns, there are exceptions. Most are common sense, as when people are under investigation for tax evasion, a state has the right to access the returns.
Senate Committees on Finance and Ways and Means also have the right to request "any return of information or return". The only caveat is that if the request concerns a specific identifiable person, the committee must consult the return in private.
In the past, Congress had sought individual results. More recently, in 2014, Republicans had access to the statements of more than a dozen tax – exempt organizations as part of an investigation to determine whether the IRS discriminated against conservative groups. They even published the statements publicly, which many have criticized for violating their privacy.
Are there limits?
Although Trump's lawyers and some scholars argue that Congress needs a legislative purpose to demand these returns, as others have noted, the law does not actually require anything.
And in any case, the purpose cited by Neal constitutes a legitimate legislative interest, as the collection of this type of information is necessary to draft laws.
Nevertheless, the power of Congress to request tax returns is limited. To begin with, this must be within the competence of the committee, which probably explains why Neal chose to express so narrowly the legislative interest of the committee.
It must also respect all other relevant US laws, including the Constitution, which would prohibit unreasonable searches and prevent discrimination on the basis of race or any other category of suspect. While it is still possible to suffer harm, these limits should protect every American from serious abuse of power while allowing lawmakers to exercise proper control.
Error of the Democrats?
In rejecting the application, Mnuchin took advantage of the fact that Neal had expressed only a narrow legislative objective to request the return.
The Treasury Secretary suggested other ways to better understand the IRS's policy of verifying presidential statements and offered to provide information for this purpose.
Thus, by expressing a narrow purpose – when everyone knows that Democrats have a strong partisan interest in the president's tax returns – Neal may have made a mistake. It could have refused to specify any legislative objective since the explicit adoption of the law in 1924 to give Congress access to the statements of income of executive members. Congress further strengthened this right five decades later, after finding that the IRS had not properly audited President Richard Nixon's tax returns.
Although the law itself states that the Secretary of the Treasury has the responsibility to comply with the law, this authority has long been delegated to the Commissioner of the IRS. And it would take a complicated process to revoke this order of delegation, according to Larry Summers, secretary of the Treasury at the end of the Clinton government.
So the Democrats are probably right in saying that the IRS commissioner himself has to comply with the law. And in view of the important principle at stake – the power of Congress to control the presidency, as well as the legitimate interest of the committee and the clarity of the law – the commissioner should have returned the reports.
The coming battle
What happens next?
Congress could try to use its inherent power of contempt and retain it in the capital or elsewhere. This has not been used since 1935.
Otherwise, the Congress must choose between filing a subpoena to compel the Commissioner to submit the statements and filing a private complaint to enforce the law. Anyway, it will almost certainly entail a long legal battle, which will obviously benefit the president.
The problem is that no matter which way Congress chooses, a court will ultimately decide the issue. And he could very well decide that this is a political issue on which he has no role to play.
If this is the case, the president wins and is rewarded for his recalcitrance. The responsibility loses.
Philip Hackney, Associate Professor of Law, University of Pittsburgh
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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