DISCOVERY OF PRESIDENTIAL AND OTHER PARTIES’ TAX RETURNS

Ivan Hoffman, B.A., J.D.

  Significance

          The reason this topic is significant is because if the investigation of the Special Counsel is shut down or restricted (or even if it is not), this statutory set up could allow the newly Democratic-controlled House (after January 3, 2019) to conduct an independent investigation and to include within that investigation one or more written requests for tax returns of relevant parties.  That investigation might have the same or supplemental effect as the Special Counsel’s investigation.

The Details

           As a result of the “Teapot Dome Scandal” in the early 1920s (which revealed corruption in the Warren G. Harding administration…remember your history!), Congress passed this act in 1924.

           26 United States Code section 6103 provides in part as follows: 

(f)Disclosure to Committees of Congress 

(1)Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation 

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure. 

          The “Secretary” refers to the Secretary of the Treasury.”  As indicated, the furnishing of such tax returns is mandatory (“the Secretary shall furnish…”). 

           The statute goes on to state in section (b) (1) that “return” includes any return “filed” and does not on its face exclude any “returns” that are subject to audit.  Section (b) (2) provides that “return information” includes “the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities,…” 

          While there is authority under section (f) (2) for the Chief of Staff of a joint committee to also review the returns, given the control of the Senate by the Republicans, it seems unlikely that any joint committee can be formed. 

          Once provided to the House Ways and Means Committee, other committees of the House or Senate are also entitled to be furnished with these returns and return information provided that there be a resolution of those committees.  (section (f) (3))  Any resolution described in this paragraph would need to specify the purpose for which the return or return information is to be furnished and that such information cannot reasonably be obtained from any other source. 

          Once the committee or committees have the return, it or they are free to disclose the same to the full House or Senate.  What is not clear is whether those returns can be disclosed to the public and that turns on whether there is a legitimate legislative purpose for the public disclosure. 

          Taken together, it means that although the return may have to be “furnished” in a close executive session, the other parts of the statute allow for further dissemination of the return to other identified parties. 

          The above said, it is likely that the President will instruct the Secretary of the Treasury not to release these returns and then it will be up to the courts, including potentially the Supreme Court, to decide and that likely will take quite a while for resolution. Among the issues that are likely to be debated is the separation of powers structure of the Constitution.  Although legislative powers are vested in the House and Senate, those bodies cannot exercise their powers for “political” purposes because to do so could be deemed to violate that separation of power.  However, the legislative powers position could be based on needing those returns to determine if the President is violating the emoluments clauses of the Constitution (read “The Emoluments Clauses.”) as well as whether ethics rules and statutes might need to be amended and similar legitimate legislative functions.

    Copyright © 2018 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. (www.ivanhoffman.com).  Additionally, Ivan Hoffman has written numerous books about philosophy including “The Tao of Love” and “The Tao of Money.” 

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

      


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