Sunday, August 1, 2021

DOJ Office of Legal Counsel Advises Treasury that It Should Comply with Ways and Means Chair's Request for Trump Return and Return Information (8/1/21)

DOJ’s Office of Legal Counsel (“OLC”) has released a legal opinion that Treasury must disclose President Trump’s return and return information (including audit histories and work papers) at the request of the Chair of the House Ways and Means Committee.  See Ways and Means Committee’s Request for the Former President’s Tax Returns and Related Tax Information Pursuant to 26 U.S.C. § 6103(f)(1), 45 Op. O.L.C. __ (July 30, 2021), here, referred to as the 2021 OLC Opinion.  Bottom line, OLC concludes that such requests specifically authorized by § 6103(f)(1) without stated conditions has an implicit condition that the request serve a legitimate legislative purpose, that a request for return and return information that facially serves a legitimate purpose should be presumed to be made in good faith, and the presumption may be overcome only in exceptional circumstances not present in this case.  Technically, the OLC opinion relates to a 2021 request that renewed the earlier 2019 request that the Trump Administration Treasury and OLC conclude was pretextual and did not serve a legitimate legislative purpose.  This 2021 OLC Opinion concludes that the 2019 request erred in its analysis and conclusion.

The OLC Opinion is long, so I copy and paste here only the opening summary:

Section 6103(f)(1) of title 26, U.S. Code, vests the congressional tax committees with a broad right to receive tax information from the Department of the Treasury. It embodies a long-standing judgment of the political branches that the tax committees are uniquely suited to receive such information. The committees, however, cannot compel the Executive Branch to disclose such information without satisfying the constitutional requirement that the information could serve a legitimate legislative purpose. 

In assessing whether requested information could serve a legitimate legislative purpose, the Executive Branch must give due weight to Congress’s status as a co-equal branch of government. Like courts, therefore, Executive Branch officials must apply a presumption that Legislative Branch officials act in good faith and in furtherance of legitimate objectives. 

When one of the congressional tax committees requests tax information pursuant to section 6103(f)(1), and has invoked facially valid reasons for its request, the Executive Branch should conclude that the request lacks a legitimate legislative purpose only in exceptional circumstances. The Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President’s tax information. Under section 6103(f)(1), Treasury must furnish the information to the Committee.

In preparing to finalize my 2021 editions of my Federal Tax Procedure, I have included a discussion of the 2021 OLC opinion and the predecessor 2019 OLC opinion.  I include that state the general rule in the text but then discuss the trajectory of the requests and the OLC opinions in a footnote which will not be in the footnoteless Student Edition.  I put more detail in the footnote to meet my goal of providing students only the information that they should know for a tax procedure class.  Stating the general rule with the detail in the footnotes serves the purpose; after this brouhaha passes, the brouhaha and underlying analysis will not be particularly useful to students.  I offer that discussion here (note the footnote numbers are as in the working draft which should be finalized today, so should remain the same):

Section 6103(f)(1) provides that Treasury “shall furnish” to the Congressional tax committees (House Ways and Means Committee and Senate Finance Committee) upon written request of the chair of the Committee, but any return information that could be associated with or identify the taxpayer may only be disclosed in closed executive session. n4553  Although the statute text is unconditional, the Treasury and DOJ’s Office of Legal Counsel agree that the request must serve a legitimate legislative purpose which, in respect to a co-equal branch, will be presumed except in exceptional circumstances. n4554

   n4553 This is the provision that the House Ways and Means Committee Chair invoked in requesting President Trump’s returns and return information (including audit history and work papers) in 2019 and then again in 2021.  This controversy is discussed in the succeeding footnote.
   n4554 In 2019, the Treasury determined that the Ways and Means Committee Chair’s request for returns and return information (including audit histories and work papers) was for improper political reasons and therefore was not a proper request.  DOJ’s Office of Legal Counsel (“OLC”) agreed with Treasury.  Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, from Brent J. McIntosh, General Counsel, Department of the Treasury at 5 (May 2, 2019), followed by more detailed legal opinion Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C. __ (June 13, 2019).  The Committee issued a subpoena, thereby triggering a long legal battle.  Meanwhile, in 2021, President Trump left office, and the Committee renewed the request with more elaboration on its legitimate legislative objectives.  OLC then advised that the Committee had invoked sufficient legitimate legislative purposes that the request should be honored by Treasury.  The legal analysis was that Congress was a co-equal branch that should be accorded a presumption of good faith and action for legitimate purposes when it has invoked facially valid purposes which the Committee had done in this case.  Throughout the brouhaha, the issue was whether the 2019 and 2021 requests were shown to be pretextual and thus did not satisfy the legitimate legislative purpose requirement.  The Trump Administration Treasury and Office of Legal Counsel decided for the 2017 that the request was pretextual and thus not legitimate. The Biden Administration Treasury and Office of Legal Counsel determined that the 2019 was legitimate under the presumption because it had invoked legitimate legislative purposes and the presumption had not been overcome.  Under this analysis, the 2019 conclusions had been in error.  I do not address whether the differing OLC analysis in 2019 or 2021 was more political than legal, but the analyses did agree on the legal proposition that that the request must serve a legitimate legislative purpose.  It appears that future controversies will engage over whether the presumption of legitimate purpose has been overcome.

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