EPIC v. IRS II (Trump Offers-in-Compromise)
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.
- EPIC Celebrates Sunshine Week With 2019 FOIA Gallery: In celebration of Sunshine Week, EPIC has unveiled the 2019 FOIA Gallery. Since 2001, EPIC has published annually highlights of EPIC’s most significant open government cases and Freedom of Information Act requests. In 2018, EPIC obtained e-mails about mass surveillance programs developed by Justice Kavanaugh as a White House legal advisor, records about the controversial DHS "media monitoring program," communications between the FTC and Facebook about the agency's failure to enforce the 2011 Consent Order, and documents that revealed obscure travel blacklists in the "SecureFlight" program. In the latest FOIA gallery, EPIC also highlight a significant ruling from the D.C. Circuit in EPIC v. IRS where the court stated that the IRS "misunderstands its FOIA disclosure obligations." This is one of two cases EPIC filed to obtain the public release of President Trump's tax records. In EPIC v. IRS, the district court noted that President Trump tweeted, "For the record, I have ZERO investments in Russia. Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA - NO DEALS, NO LOANS, NO NOTHING!" (Mar. 11, 2019) More top news »
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.
In addition to this case, EPIC has brought several other Freedom of Information Act lawsuits regarding Russian interference in the 2016 Presidential Election: EPIC v. IRS I (concerning release of the President’s tax returns under § 6103(k)(3)), 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 (April 17, 2018)
- IRS Motion to Dismiss & Memorandum (June 15, 2018)
- EPIC Opposition to Motion to Dismiss (June 29, 2018)
- IRS Reply in Support of Motion to Dismiss (July 10, 2018)
- EPIC Surreply in Opposition to Motion to Dismiss (July 12, 2018)
- IRS Opposition to Motion for Leave to File Surreply (July 12, 2018)
- EPIC Notice of Supplemental Authority (Dec. 19, 2018)
- IRS Notice of Withdrawal of Motion to Dismiss (Feb. 11, 2019)
- EPIC Motion to Set a Schedule for the Disclosure of Records (Feb. 13, 2019)
- IRS Second Motion to Dismiss (Mar. 4, 2019)
- EPIC Opposition to Second Motion to Dismiss (Mar. 18, 2019)
- EPIC Starts 2nd Lawsuit Seeking Trump's Tax Info, Law360 (April 18, 2018)