During my time in the Treasury Department, I do not recall any politically sensitive request or other requests from a tax-writing committee. But motivated by recent controversies, I have asked myself how I would have responded had such a request been made. Of course, a parallel situation could not have arisen when I was at Treasury because President Bill Clinton made his tax returns publicly available as they were filed and also released returns for years before he became president. But one can imagine a hypothetical situation where a congressional committee might have asked, for example, for the tax returns of people involved with the Whitewater controversy.
As best I can determine, the appropriate response of the treasury secretary is very clear: Under a long-standing delegation order, the secretary does not get involved in taxpayer-specific matters and has delegated to the IRS commissioner as follows: “The Commissioner of Internal Revenue shall be responsible for the administration and enforcement of the Internal Revenue laws.”
Moreover, this is not a delegation that is readily revocable. Federal law provides that if the secretary determines not to delegate a power, such determination may not take effect until 30 days after the secretary notifies the tax-writing (and other specified) committees.
So for the secretary to seek to decide whether to pass on the president’s tax return to Congress would surely be inappropriate and probably illegal. I would surely not have done it. Rather, I would have indicated to the IRS commissioner that I expected the IRS to comply with the law as always.
What would that mean? The relevant provisions date from 1924, and I have not been able to find any case where the IRS did not promptly provide full disclosure to a tax-writing committee. The statute is entirely clear regarding the right of the committee to request individual taxpayer information. And Congress explicitly prohibits the IRS from withholding information from inquiries such as this one: Section 1203 of the IRS Restructuring and Reform Act details the “10 deadly sins” for which IRS employees can be fired. Number 7 is “willful misuse” of the provisions of Section 6103 — invoked last week by Rep. Richard E. Neal (D-Mass.), the chairman of the tax-writing House Ways and Means Committee — to conceal information from a congressional inquiry.
The only conceivable argument that the IRS commissioner could make for not turning over the president’s return would be to suggest that the committee had no legitimate purpose relating to its work for requesting the return. This is an absurd argument with respect to Trump’s returns. Most obviously, the committee has a legitimate interest in monitoring the auditing and enforcement of the law with respect to sitting presidents, especially in light of the known problems with the initial audits of President Richard M. Nixon’s returns. There are also legitimate grounds for the request centered on oversight of potential conflicts of interest the president may possess.
Trump has at times suggested that he cannot turn over returns because they are under audit. This is wholly fictitious, as there is no such IRS rule, practice or even suggestion with respect to returns under audit.
The president and other officials have also suggested that somehow this matter was resolved by the 2016 election. Similar arguments with respect to the 1972 election were made by Nixon administration officials. The issue of adequate auditing of presidential returns did not arise before the president’s election, and certainly a wide range of conflict-of-interest issues have surfaced since Trump took office. More fundamentally, the statute regarding congressional tax-writing committee prerogatives is nearly a century old and entirely clear.
I cannot imagine that any previous treasury secretary would have interfered with the IRS to contravene a nearly century-old statute that had been applied on many previous occasions (most recently by Trump’s Republican Party to attack the Obama administration IRS regarding political discrimination).
Mnuchin’s duty is clear. I trust he will make clear in the near future that he wishes that the IRS commissioner remain consistent with the existing delegation order to comply with the law.