If the Freedom of Information Act means anything, it means that the American public has the right to know whether records exist in a federal agency which reveal that the U.S. president has financial dealings with a foreign adversary.
With that in mind, EPIC submitted a FOIA request to the Internal Revenue Service on February 16, 2017 seeking “Donald J. Trump’s tax returns for tax years 2010 forward and any other indications of financial relations with the Russian government or Russian businesses.”
Donald J. Trump’s failure to release his tax returns is unprecedented and goes against the long-standing tradition of candidates for the U.S. presidency. The release of President Trump’s tax returns would help determine whether statements regarding his business relations with Russia and the Russian government are correct or not correct.
Notably, the public favors the release of the President’s tax records. According to an ABC News poll, three-quarters of Americans say he should release his returns. More than 1 million people have signed a petition urging the federal government to “[i]mmediately release Donald J. Trump’s full tax returns, with all information needed to verify emoluments clause compliance.”
After the IRS refused to process EPIC’s FOIA request, EPIC filed suit against the agency on April 15, 2017 in the U.S. District Court for the District of Columbia. On August 18, 2017, the Court granted the IRS’s motion to dismiss EPIC’s case, concluding that “until President Trump or Congress authorizes release of the tax returns, EPIC (and the rest of the American public) will remain in the dark.” EPIC has appealed the District Court’s decision to the U.S. Court of Appeals for the D.C. Circuit, which heard arguments in the case on Thursday, September 13, 2018.
In the aftermath of President Richard M. Nixon’s resignation, Congress enacted the Tax Reform Act of 1976 to strengthen the accountability of the IRS. Senator Lowell Weicker (R-CT) described the law as a “legislative remedy to the flaws of Government exposed by the chain of abuses we call Watergate.”
To ensure the “integrity and fairness [of the IRS] in administering the tax laws,” one provision of the Act—§ 6103(k)(3)—permits the IRS Commissioner to “disclose such return information or any other information with respect to any specific taxpayer to the extent necessary for tax administration purposes to correct a misstatement of fact published or disclosed with respect to such taxpayer’s return or any transaction of the taxpayer with the Internal Revenue Service.” The provision requires the Commissioner to obtain the approval of the Joint Committee on Taxation.
Section 6103(k)(3) provides the IRS with an “extremely important” authority “to protect itself and the tax system[.]” As Sen. Chuck Grassley (R-IA) has explained, certain “type[s] of factual misstatements should trigger disclosure of return information” under § 6103(k)(3) if they are of a sufficient “degree of seriousness.”
The IRS has approached the Joint Committee on Taxation about its § 6103(k)(3) authority in at least two other matters. In 1997, the IRS Commissioner “requested the opportunity to explore with Chairman Archer and Chairman Roth the possibility of using Code section 6103(k)(3) to permit the IRS to correct misstatements of fact regarding examinations of tax-exempt organizations.” Commissioner Richardson explained that “unfounded reports erode public confidence in the integrity of the IRS, thereby undermining the self-assessment compliance system.” The IRS put forward a similar proposal in 1981 to correct misstatements by tax protestors that the IRS was “letting them get away with not filing or that [the IRS was] harassing them.”
’Misstatement[s] of Fact’
Many individuals, including the President, have published conflicting statements of fact about the contents of President Trump’s tax returns. At least some of these statements of fact must necessarily be false because they are contradictory.
In July 2016, for example, Trump stated on Twitter: “For the record, I have ZERO investments in Russia.” Days later, Trump stated in an interview that he had “no relationship to Russia whatsoever” and “no debts” in the country.
However, numerous news organizations have covered President Trump’s ties to Russian business and government. The Washington Post reported that “[s]ince the 1980s, Trump and his family members have made numerous trips to Moscow in search of business opportunities, and they have relied on Russian investors to buy their properties around the world.” CBS News noted that “[w]hile the Republican presidential nominee has denied any ties to Russia, his connections to the country and its president go back years.”
Following his election, President Trump tweeted on January 11, 2017: “Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA – NO DEALS, NO LOANS, NO NOTHING!” On February 16, the President reiterated his statement in a nationally televised press conference: “I can tell you, speaking for myself, I own nothing in Russia. I have no loans in Russia. I don’t have any deals in Russia.”
Yet three separate investigations—one by the Federal Bureau of Investigation, one by the House Intelligence Committee, and one by the Senate Intelligence Committee—are poised to examine President Trump’s business connections to Russia. Sen. Chris Murphy (D-CT) recently asserted that President Trump’s tax returns “could shed light on Trump’s ‘bizarre positioning’ towards Russia” and alleged “either that the Russians have something on Trump, or that there are financial ties that are requiring Trump to behave this way or perhaps the Russians helped him in the election and this is sort of a quid pro quo.”
Meanwhile, news reports continue to contradict the President’s factual claims about his financial dealings. “I believe Trump’s tax returns are key evidence in the investigations into the extent of Russian interference in the election and should be made public or at least provided to Congress,” one commentator wrote. President Trump’s statements that he “has ZERO investments in Russia” and that he has “NOTHING TO DO WITH RUSSIA” have even been contradicted by his family. In 2008, Donald Trump, Jr. stated that “Russians make up a pretty disproportionate cross-section of a lot of our assets. . . . We see a lot of money pouring in from Russia.”
’Tax Administration Purposes’
President Trump, media commentators, and many members of the public have attacked the integrity and fairness of IRS in recent months, alleging religious discrimination, political bias, and economic favoritism in the agency’s administration of the tax code.
President Trump has claimed that he “unfairly get[s] audited by the I.R.S. almost every single year” and has accused the agency of targeting him for both religious and political reasons. In a February 2016 CNN interview, Trump stated: “I’m always audited by the IRS, which I think is very unfair—I don’t know, maybe because of religion, maybe because of something else.” Trump added that the IRS may target him “because of the fact that I’m a strong Christian, and I feel strongly about it and maybe there’s a bias.”
Others have questioned whether the IRS is unfairly deferential toward President Trump and other wealthy taxpayers. In a Forbes article titled “Do Wealthy People Like Trump Have Easier IRS Audits?,” tax attorney Robert W. Wood reported that Trump and other big earners appear to elude IRS auditors at higher rates than regular earners. “[S]tatistics might be read to suggest that wealthy individuals often outdo even this elite wing of the IRS [the IRS Wealth Squad],” Wood wrote. “[I]n a significant percentage of the audits it handles, the IRS Wealth Squad walks away without a single dollar.”
Still others have announced their intention to “withhold payment until Trump releases his own tax returns, since they believe the documents would prove that he’s not fit to be president.”
In order to maintain public confidence in the agency’s equitable administration of the tax code, the IRS must exercise its power under § 6103(k)(3) to release Donald Trump’s returns.
EPIC’s FOIA Request
On February 16, 2017, EPIC submitted a FOIA request to the Internal Revenue Service seeking “all of Donald J. Trump’s individual income tax returns for tax years 2010 forward, and any other indications of financial relations with the Russian government or Russian businesses.” In a letter dated March 2, 2017, the IRS acknowledged receipt of EPIC’s request but stated that it was “closing [EPIC’s] request as incomplete with no further action.”
On March 29, 2017, EPIC submitted an appeal and renewed FOIA request to the IRS. EPIC explained its right to seek and access such records under 26 U.S.C. § 6103(k)(3) and urged the IRS Commissioner to “move promptly to obtain permission from the Joint Commission on Taxation to release the records EPIC has requested.”
In a letter dated April 6, 2017, the IRS acknowledged receipt of EPIC’s appeal but again stated that it was closing EPIC’s request as “incomplete.” The agency asserted that “any future request regarding this subject matter [would] not be processed.”
On April 15, 2017, EPIC filed suit in the U.S. District Court for the District of Columbia seeking to compel disclosure of the requested tax records. On August 18, 2017, the Court granted the IRS’s motion to dismiss EPIC’s case, concluding that “until President Trump or Congress authorizes release of the tax returns, EPIC (and the rest of the American public) will remain in the dark.”
As Marc Rotenberg, President of EPIC, has said: “There has never been a more compelling request presented to the IRS than the request from EPIC to obtain the tax records of President Donald J. Trump.”
There is a widespread concern that the President’s private financial interests may conflict with the national interests of the United States. There is a related concern that Mr. Trump may have entered into business relations with the Russian government that aided his presidential campaign. There is simply no way to resolve these disputes without the release of the tax records. The public has the right to know.
“The public interest in disclosure of this information could not be greater,” EPIC noted in the Complaint against the IRS. “This complaint presents unique facts that would not apply to the release of any other tax returns for any other taxpayer.”
In addition to this case, EPIC has filed two other Freedom of Information Act lawsuits regarding Russian interference in the 2016 Presidential Election: EPIC v. FBI (concerning a request for records related to the hack of the DCCC, DNC, and RNC systems) and EPIC v. ODNI (concerning a request for the full report on “Russian Activities and Intentions in Recent US Elections”).
U.S. District Court for the District of Columbia (No. 17-670)
- Complaint (Apr. 15, 2017)
- IRS Motion for Extension of Time (May 17, 2017)
- EPIC Opposition to Motion for Extension of Time (May 18, 2017)
- Order Re Motion for Extension of Time (May 19, 2017)
- IRS Motion to Dismiss and Memorandum (June 12, 2017)
- EPIC Opposition to Motion to Dismiss (June 26, 2017)
- IRS Reply on Motion to Dismiss (July 3, 2017)
- Opinion (August 18, 2017)
U.S. Court of Appeals for the D.C. Circuit (No. 17-5225)
- EPIC Opening Brief (February 21, 2018)
- Joint Appendix (February 21, 2018)
- IRS Brief (Apr. 20, 2018)
- EPIC Reply Brief (May 4, 2018)
- Notice of Oral Argument (June 15, 2018)
- Oral Argument Recording (September 13, 2018)
- Oral Argument Transcript (September 13, 2018)
- Opinion (December 18, 2018)
- EPIC FOIA Request (Feb. 16, 2017)
- IRS Response (Mar. 6, 2017)
- EPIC FOIA Appeal (Mar. 29, 2017)
- IRS Response (Apr. 10, 2017)
- EPIC Supplemental FOIA Request (Apr. 27, 2017)
- IRS Response to EPIC Supplemental FOIA Request (Sep. 14, 2017)
- IRS Disclosure Report for Calendar Year 2000 (May 22, 2001)
- Supreme Court Denies Trump Voter Commission Privacy Challenge, Bloomberg, January 7, 2019
- High Court Won’t Review Row Over State Voter Data Grabs, Law360, January 7, 2019
- Group Opposes IRS Bid For Legal Costs Amid Gov’t Shutdown, Law360, January 4, 2019
- You Can’t Use FOIA to Get Someone’s Tax Returns, Reason, December 19, 2018
- Judge rejects request to release Trump’s tax returns under freedom of information laws, CNN, December 18, 2018