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 has filed a FOIA request and lawsuit to compel the Internal Revenue Service to release certain tax records pertaining to President Donald J. Trump and more than 300 associated business entities. Specifically, EPIC has requested all “offers-in-compromise” used to satisfy a tax debt owed by President Trump or one of his businesses. This is the second FOIA request and lawsuit, following EPIC v. IRS I, that EPIC has brought concerning the President’s tax records.
An offer-in-compromise is “an agreement between a taxpayer and the Internal Revenue Service that settles a taxpayer’s tax liabilities for less than the full amount owed.” Under section 6103(k)(1) of the Internal Revenue Code, taxpayer “return information shall be disclosed to members of the general public to the extent necessary to permit inspection of any accepted offer-in-compromise[.]” The records EPIC has requested—accepted offers-in-compromise and related return information pertaining to the President—are therefore public as a matter of law.
EPIC filed its FOIA request on February 5, 2018. After the IRS failed to issue a final determination on EPIC’s request for more than two months, EPIC filed suit against the agency on April 17, 2018 in the U.S. District Court for the District of Columbia. On February 11, 2019, the IRS withdrew its motion to dismiss EPIC’s case in light of the D.C. Circuit’s decision in EPIC v. IRS I. On March 4, the IRS filed a second motion to dismiss. EPIC filed its opposition on March 18.
Section 6103(k)(1) is one of several provisions from the Tax Reform Act of 1976 through which Congress has determined that certain “returns or return information should be public as a matter of policy[.]” According to the Treasury Inspector General for Tax Administration:
The reason OICs [offers-in-compromise] are available for public inspection goes back several decades. In the early 1950s, an IRS employee was indicted for taking bribes from taxpayers seeking to compromise their outstanding tax liabilities. A congressional investigation revealed that the IRS had accepted offers with generous terms from racketeers and politically connected individuals. In response to these scandals, on August 20, 1952, President Truman issued Executive Order 10386 directing the IRS to open for public inspection any accepted OIC. The Internal Revenue Code permits public inspection and copying of accepted OIC case files.
As one tax official wrote of § 6103(k)(1), “Presumably, the public policy behind the federal exemption from confidentiality of return information is a Congressional belief that the compromise of tax liabilities is affected with significant public interest, to the extent that all taxpayers are affected by such a compromise.” Disclosure of offer-in-compromise information is also mandated by Exec. Order No. 10,386, which separately requires that “income, excess profits, declared value excess profits, capital stock, estate or gift tax returns for any taxable” be open “to the extent necessary to permit the inspection of any accepted offer in compromise”).
The IRS, in furtherance of § 6103(k)(1), has set up two separate mechanisms for the public to obtain offers-in-compromise and the relevant return information. First, for a year after a given taxpayer’s offer-in-compromise is accepted by the IRS, the taxpayer’s Form 7249 (“Offer Acceptance Report”) and associated “sanitized account transcript” is made available for public inspection at the geographically corresponding IRS field office. Taxpayers are permitted to copy and retain these documents; however, the “inspection file” at each IRS office only contains records specific to that IRS region, and only records that are a year or less old. Second, the Internal Revenue Manual states that requests for offers-in-compromise and associated return information may be made in pursuant to the FOIA.
EPIC’s FOIA Request
On February 5, 2018, EPIC submitted a FOIA request to the Internal Revenue Service seeking:
1. All accepted offers-in-compromise relating to any past or present tax liability of Donald John Trump, the current President of the United States.
2. All other “return information . . . necessary to permit inspection of [the] accepted offer[s]-in-compromise” described in Category 1 of this request. Records responsive to Category 2 include, but are not limited to, “income, excess profits, declared value excess profits, capital stock, and estate or gift tax returns for any taxable year,” as applicable.
EPIC also submitted an appendix (“Appendix A”) of several hundred business entities in which the President is, or has been, involved. With respect to these entities, EPIC sought:
3. All accepted offers-in-compromise relating to any past or present tax liability of any entity identified in Appendix A of this request.
4. All other “return information . . . necessary to permit inspection of [the] accepted offer[s]-in-compromise” described in Category 3 of this request. Records responsive to Category 4 include, but are not limited to, “income, excess profits, declared value excess profits, capital stock, and estate or gift tax returns for any taxable year,” as applicable.
On February 8, 2018, the IRS responded to EPIC by letter, agreed to expeditiously process EPIC’s request, and committed to searching for responsive records.
On April 17, 2018—after the IRS had unlawfully failed to make a final determination on EPIC’s request for fifty working days—EPIC filed suit in the U.S. District Court for the District of Columbia. On June 15, 2018, the IRS moved to dismiss EPIC’s suit and attempted to retroactively reverse its agreement to process EPIC’s request.
There is widespread concern that the President’s private financial interests may conflict with the national interests of the United States and 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 questions without the release of the President’s tax records. The public has the right to know.