In early April, House and Ways Committee Chairman Richard Neal requested six years of President Donald Trump’s tax returns and tax information. Chairman Neal has the legal authority under the Revenue Act of 1924 to request the president’s tax information. This Act is codified in 26 U.S.C. § 6103(11)(f)(1) and reads as follows:
“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 [Treasury] 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.”
Requesting Tax Returns of Any Person
A “taxpayer” is defined in 26 U.S.C. § 7701(a)(14) as “any person subject to any internal revenue tax.”
Tax information was considered a public record under the Revenue Act of 1924. However, the public record provision of the 1924 Act did not last long. The Revenue Act of 1926 removed that provision.
Beginning in 1910 and lasting until 1976, only the president had the authority to release or disclose tax information to the public—and according to George Yin, one of the nation’s foremost tax expert and law professor at the University of Virginia’s School of law, there were 110 executive orders issued between 1933 and 1975 disclosing non-committee tax information—many of which were issued for partisan political purposes.
Legal Authority to Request Returns
Fortunately, with the Tax Reform Act of 1976, Congress removed the president from the tax disclosure process in the wake of a litany of executive abuses of that process by former President Richard M. Nixon. Professor Yin in 2015 wrote that this new reform law “generally allowed only tax administrators and others specifically identified by Congress to access the confidential information, and barred them from disclosing it to anyone else.”
Professor Lin, however, firmly believes that Chairman Neal has the legal authority to request the president’s tax returns and tax information under the Revenue Act of 1924, Last month the professor told Vox news that:
“Chairman Neal’s request is on firm legal ground. A law enacted in 1924 authorizes him to request anyone’s tax return information and provides that the Secretary of Treasury ‘shall furnish’ the information requested. It doesn’t contain any basis for the secretary to refuse. The background behind the law supports this broad interpretation of Congress’s authority. Prior to 1924, the president had the sole and unconditional right to obtain and disclose anyone’s tax return information. Congress was frustrated by the law because its investigations of executive branch officials and agencies (including the tax agency) required examination of tax return information. Since only the president could release the information, Congress actually had to seek permission from the president to carry out investigations of the executive branch. Congress decided that as a co-equal branch of government, it had to have the same as access to tax information as the president at time.”
Congress is Co-Equal Branch of Government
President Trump doesn’t see it that way.
The president does not view either Congress or the Judiciary as “co-equal” branches of the American government. He believes the Presidency enjoys absolute supremacy over the other two branches—and, in fact, believes that the Presidency is above the “rule of law” and he has the executive authority to violate any law at any time and for any reason he chooses in order to protect himself, his family and his wide array of business interests from either congressional or law enforcement scrutiny.
President Orders Violation of Law
Trump ordered Treasury Secretary Steven Mnuchin and IRS Commissioner Charles Rettig not to disclose his tax information to the House’s Ways and Means Committee which forced Chairman Neal to issue a subpoena to these officials commanding production of the requested information.
Under the advice of Attorney General William Barr, who acts as the president’s quasi-official personal attorney, Mnuchin and Rettig will not honor the subpoena.
The refusal of the Trump administration to cooperate with, much less recognize, Congress’s authority to investigate and maintain oversight of executive branch officials has created what House Speaker Nancy Pelosi calls a “constitutional crisis” between the two branches of government.
Whether or not there is an actual “constitutional crisis” is an issue subject to intense, mostly partisan debate. What is not subject to debate is that the issue of whether President Trump’s tax returns and/or tax information is subject to congressional disclosure will be decided by the courts. Section 6103(f) has never been interpreted by any court in this context, so at this juncture it cannot be said with absolute uncertainty who is right and who is wrong: the president or Congress.
But what can be said with absolute certainty is that Section 6103(f) itself does not present a constitutional issue, rather it raises a purely statutory interpretation issue—and such statutory interpretation can only be made by the judiciary.
Courts Must be “Sticklers” When Interpreting Law
A recent decision by the Fifth Circuit Court of Appeals interpreting a provision of the Social Security Act (42 U.S.C. § 407(a)) perfectly illustrates how statutory interpretations are arrived at by the courts. In Reed v. Taylor, the Fifth Circuit instructed:
“Our Constitution’s ingenious architecture demands that judges be sticklers when decoding legislative text. The law begins with language, and the foremost task of legal interpretation is divining what the law is, not what the judge-interpreter wishes it to be.
“On that score, our precedent favors bright lines and sharp corners, including unswerving fidelity to statutory language: ‘Text is the alpha and the omega of the interpretive process.’ Judges are minders, not makers or menders. All to say, we must take Congress at its word, presume it meant what it said, and refuse to revise statutes under the guise of interpreting them.
“True, congressional handiwork is now and again imprecise—sometimes inadvertently, sometimes intentionally. But judges rarely need secret decoder rings to decrypt legislative language. Statutory language, like all language, is suffused with age-old interpretive conventions. And judges, like all readers, must be attentive not to words standing alone but to surrounding structure and other contextual cues that illuminate meaning.”
That quite simply means the wordage within the contextual language of Section 6103(f) will carry the day in a court. Section 6103(f) commands that the Treasury Secretary Mnuchin “shall furnish” to Chairman Neal with “any return or return information” requested by the Chairman pertaining to a “particular taxpayer” which, in this situation, is the President of the United States.
U.S. President is Not Above the Law
As professor Yin noted, this language does not give Secretary Mnuchin wiggle room to refuse Chairman Neal’s request for President Trump’s tax returns or tax information.
To hold otherwise would mean that the President of the United States is “above the rule of law” – and if a court ever renders such a judicial interpretation, then America is no longer a democracy but a dictatorship.