In defense of Trump's nondisclosure of his tax returns

In a 30 October 2016 NBC News Meet the Press interview, vice presidential candidate Mike Pence effectively confirmed what had been a foregone conclusion – that the income tax returns of his running mate, Donald Trump, would not be publicly released before Election Day.

CHUCK TODD:  On October 17th, Donald Trump had to turn in his tax return this year. Is he going to release it to the public before the election?

GOVERNOR MIKE PENCE:  I think as soon as the audit is completed Donald Trump will release --

TODD: There's no audit on this return. They don't make those decisions that fast.

PENCE:  He'll release all of his tax returns when the final audit is completed.

TODD:  All right, so not before the election?

PENCE: Yeah.

Those of us in the tax practitioner community have advanced various theories and speculations as to what may or may not be on Trump's returns, including and especially the complex Net Operating Losses (NOLs), which can be carried back to offset income in previous years and carried forward to offset income in subsequent years, and which Trump is known to have incurred in years past.

The smart money says disclosure would publicize facts no doubt inconvenient to Trump in the current pre-Election Day climate.

There are, however, considerations against disclosure, over and above the political calculus behind Trump's decision to release or not release his tax returns (and, for that matter, the tax return disclosure/nondisclosure decision of any politician for any political office).

First of all, given Trump's diverse business and financial interests, his federal tax return submission alone must have entailed hundreds if not thousands of pages, the bulk of which surely are explanatory notes and schedules and not actual IRS tax return forms.  This does not include tax returns for states to which he has a personal nexus in his income, and many cities as well (including New York, where he resides).  Among those reams of paper (or the paper printouts thereof if the tax return was filed electronically) are various types of information that is sensitive for reasons of no direct political import.

This sensitive data includes Social Security numbers (SSNs) of not only Trump and his family members, but potentially those of his business partners and associates.  The availability of SSNs, as I have noted previously, facilitates stolen identity tax fraud.  And Donald Trump's deals are known to be accomplished through nonpersonal business entities such as corporations, partnerships, and limited liability companies, the Employer Identification Numbers (EINs) of which can similarly facilitate identity theft when in the wrong hands.

Ex-IRS commissioner Fred Goldberg asserts that Trump's release of certain limited portions of his tax returns "would have no impact on any pending or future IRS audit of Trump. Zero. None."  But there is no denying that the IRS has increasingly of late been sicced by politicians upon their political enemies, and it is not difficult to imagine a government official who is not directly involved in a Trump return audit (including a president or congresscritter), having seen a released copy, pressuring or otherwise inducing a cognizant IRS bureaucrat to take a closer look at one or more particular items on Trump's return (or on the return of a connected person or entity).

Though there may well be compelling moral obligation for a presidential candidate to release his or her tax returns, there currently is no legal duty to do so.  If a law providing for such is enacted (and Trump's public recalcitrance in the face of longstanding custom and practice may well induce support for such legislation on both sides of the aisle), a statutory requirement would do well to follow Mr. Goldberg's implicit suggestion that release of the first two pages and the Schedule A suffice, which "would tell us how much he [Trump] makes, how much he pays in taxes, and how much he contributes to charity."  Of course, the released returns would need to be sanitized of SSNs, EINs, and other sensitive identifying information.

Notwithstanding (or perhaps because of) my professional standing in the taxation community, my own curiosity about Donald Trump's tax returns is probably greater than that of the average American voter.  But given the demonstrated political weaponization of the IRS, perhaps Trump's refusal to play the disclosure game may better serve America's interests in the long run.

Kenneth H. Ryesky, now a senior adviser in the U.S. Desk of Ernst & Young's International Tax Services in Tel Aviv, is a lawyer who has taught business law and taxation at Queens College CUNY.  He formerly served as an attorney for the IRS.

In a 30 October 2016 NBC News Meet the Press interview, vice presidential candidate Mike Pence effectively confirmed what had been a foregone conclusion – that the income tax returns of his running mate, Donald Trump, would not be publicly released before Election Day.

CHUCK TODD:  On October 17th, Donald Trump had to turn in his tax return this year. Is he going to release it to the public before the election?

GOVERNOR MIKE PENCE:  I think as soon as the audit is completed Donald Trump will release --

TODD: There's no audit on this return. They don't make those decisions that fast.

PENCE:  He'll release all of his tax returns when the final audit is completed.

TODD:  All right, so not before the election?

PENCE: Yeah.

Those of us in the tax practitioner community have advanced various theories and speculations as to what may or may not be on Trump's returns, including and especially the complex Net Operating Losses (NOLs), which can be carried back to offset income in previous years and carried forward to offset income in subsequent years, and which Trump is known to have incurred in years past.

The smart money says disclosure would publicize facts no doubt inconvenient to Trump in the current pre-Election Day climate.

There are, however, considerations against disclosure, over and above the political calculus behind Trump's decision to release or not release his tax returns (and, for that matter, the tax return disclosure/nondisclosure decision of any politician for any political office).

First of all, given Trump's diverse business and financial interests, his federal tax return submission alone must have entailed hundreds if not thousands of pages, the bulk of which surely are explanatory notes and schedules and not actual IRS tax return forms.  This does not include tax returns for states to which he has a personal nexus in his income, and many cities as well (including New York, where he resides).  Among those reams of paper (or the paper printouts thereof if the tax return was filed electronically) are various types of information that is sensitive for reasons of no direct political import.

This sensitive data includes Social Security numbers (SSNs) of not only Trump and his family members, but potentially those of his business partners and associates.  The availability of SSNs, as I have noted previously, facilitates stolen identity tax fraud.  And Donald Trump's deals are known to be accomplished through nonpersonal business entities such as corporations, partnerships, and limited liability companies, the Employer Identification Numbers (EINs) of which can similarly facilitate identity theft when in the wrong hands.

Ex-IRS commissioner Fred Goldberg asserts that Trump's release of certain limited portions of his tax returns "would have no impact on any pending or future IRS audit of Trump. Zero. None."  But there is no denying that the IRS has increasingly of late been sicced by politicians upon their political enemies, and it is not difficult to imagine a government official who is not directly involved in a Trump return audit (including a president or congresscritter), having seen a released copy, pressuring or otherwise inducing a cognizant IRS bureaucrat to take a closer look at one or more particular items on Trump's return (or on the return of a connected person or entity).

Though there may well be compelling moral obligation for a presidential candidate to release his or her tax returns, there currently is no legal duty to do so.  If a law providing for such is enacted (and Trump's public recalcitrance in the face of longstanding custom and practice may well induce support for such legislation on both sides of the aisle), a statutory requirement would do well to follow Mr. Goldberg's implicit suggestion that release of the first two pages and the Schedule A suffice, which "would tell us how much he [Trump] makes, how much he pays in taxes, and how much he contributes to charity."  Of course, the released returns would need to be sanitized of SSNs, EINs, and other sensitive identifying information.

Notwithstanding (or perhaps because of) my professional standing in the taxation community, my own curiosity about Donald Trump's tax returns is probably greater than that of the average American voter.  But given the demonstrated political weaponization of the IRS, perhaps Trump's refusal to play the disclosure game may better serve America's interests in the long run.

Kenneth H. Ryesky, now a senior adviser in the U.S. Desk of Ernst & Young's International Tax Services in Tel Aviv, is a lawyer who has taught business law and taxation at Queens College CUNY.  He formerly served as an attorney for the IRS.