Rep. Richard Neal, D-Massachusetts, chairman of the House Ways and Means Committee, last week requested copies of President Donald Trump’s personal and business income tax returns to be handed over by Wednesday.
Neal sent the request to Internal Revenue Service Commissioner Charles Rettig using a little-used provision in the U.S. tax code which allows a handful of House and Senate committee chairmen, with a legitimate purpose, to review the tax return of American.
The law Neal invoked, Title 26, Section 6103 of the Internal Revenue Code, allows for an exception to the traditional rule that an American’s income tax return is private. Neal has asked to see six years of returns and whether any of the returns had been “under any type of examination or audit” and “the issue(s) under examination.”
The Trump administration has indicated the president will not willingly turn over his returns, citing an ongoing IRS audit, thus setting up a likely court battle over the returns.
Here’s a look at that law Neal used to request those returns and how it works.
What is the law
In the letter sent to the IRS last week, Neal cited a little known IRS code in his request for Trump's tax returns from 2013 to 2018.
The law, specifically Section 6103, allows for only four members of Congress to request a review of any individual’s tax returns.
The request can come from the chairman of the House Ways and Means Committee – currently, that’s Neal; the chairman of the Senate Finance Committee – Sen. Chuck Grassley, R-Iowa; or the chairman of the Joint Committee on Taxation (JCT)-- Neal is the chair of the Joint Committee on Taxation; or the chief of staff of the JCT, Thomas Barthold.
The request must be made to the secretary of Treasury – currently, Steve Mnuchin – who oversees the IRS. Once a request is made by one of those chairmen, no other action is needed or taken from the House or Senate floor.
In other words, the chairman’s request is all it takes to set the process in motion.
According to the law, if any of those chairmen send a written request for a tax refund the Treasury secretary “shall furnish” that information to that chairman.
There is a process for receiving and viewing the returns in order to attempt to maintain the confidentiality of the information in the return.
The review of a return must take place in “closed executive session” if the chairman has gotten the documents without the individual’s consent.
Here is the text of the law:
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 Secretary [of the Treasury] 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.
Can Trump refuse to turn over his returns?
Trump, like any other American, can refuse to voluntarily turn over his returns. He has already done so for months. However, that refusal will likely mean the dispute ends up in court.
On Friday, Trump’s attorney wrote a four-page letter to the Treasury Department challenging Neal’s request for the returns, saying that to grant the request would set a "dangerous precedent."
The letter argued that the Ways and Means Committee would be overstepping its purpose as an oversight committee by acting as a law enforcement body if they forced the IRS to release the returns and the returns then led to charges against Trump.
In Watkins v. United States, the U.S. Supreme Court ruled that “there is no congressional power to expose for the sake of exposure.”
Neal cited the committee’s oversight function in asking for the returns, saying that the Ways and Means committee has the responsibility to oversee the IRS and make sure the agency is correctly auditing the president’s returns.
By law, the president’s and vice president’s tax returns are automatically audited by the IRS.
Trump’s attorney, William Consovoy, asked the Treasury Department to get a formal legal opinion from the Justice Department before agreeing to turn over any information to Neal.
“Caution and deliberation are essential to ensure that the Treasury Department does not erode the constitutional separation of powers,” Consovoy wrote in Friday’s letter.
What happens if the Treasury secretary does not turn over the returns?
George K. Yin, a law professor at the University of and former Joint Committee on Taxation chief of staff, testified before a House Ways and Means subcommittee in February saying there is “no wiggle room” for the Treasury secretary to deny the request for Trump’s returns.
Mnuchin could be held in contempt of Congress if he should refuse to turn over the returns. Mnuchin could also be subpoenaed.
According to the Associated Press, Mnuchin said Tuesday that his department intends to "follow the law" and is reviewing a request by a top House Democrat to provide President Donald Trump's tax returns to lawmakers.
What would likely happen if Neal does not get the returns by Wednesday?
According to The Wall Street Journal, Neal is likely to send another letter to the IRS requesting the returns before deciding whether to issue a subpoena for the records or sue for the chance to see them.
If the IRS does release the returns, who would get to review them?
Neal would get to see the returns as would any other staff member he chooses. That list could include members of the Ways and Means Committee or the Joint Committee on Taxation.
Will the president’s returns be made public?
Yes, it’s likely the president’s returns would become public, but maybe not in the way you would think.
Neal could review the returns, put the Ways and Means committee into a private session and call for the committee to vote on whether Trump’s tax returns would be submitted to the full House or Senate.
Once that information is given to the full House and/or Senate, Article 1, Section 6 of the Constitution takes effect. Article 1 contains the "speech or debate" clause. What that clause does is exempt Senate and House members from civil or criminal penalties for "legislative acts" or acts committed as part of their official responsibilities.
One thing that could keep the returns from becoming public is that such information may only be shared with the full House or Senate only if there is a “legitimate legislative purpose” for making the returns public.
According to IRS code, the agency “may disclose returns or return information to the President and/or to certain named employees of the White House upon the written request of the President, signed by the President personally.”
In that request, the president must disclose the reason he or she wants to see the return. The White House must also report quarterly to Congress “regarding the disclosures of returns or return information made … .”