Treasury Declines to Answer Wyden Questions on Trump Tax Returns

July 17, 2019

The Honorable Ron Wyden
Ranking Member
Committee on Finance
United States Senate
Washington, DC 20510

Dear Senator Wyden:

I write in further response to your May 14 letter inquiring about the Department of the Treasury's response to the Chairman of the House Ways and Means Committee for the confidential tax returns (and other return information) of President Trump and related businesses. As a follow-up to our response letter of June 27, we are pleased to clarify several points at your staffs request.

First, you inquired about the history of the tax-writing committees' requests for information pursuant to 26 U.S.C. § 6103(f). As noted in your letter, the Senate Finance Committee and House Ways and Means Committee have made section 6103(f) requests for the returns or return information of specific taxpayers in connection with committee inquiries concerning matters of legislative interest in the past, including the requests mentioned in your letter. The tax-writing committees' archives are likely the most complete record of such requests. Attached is an updated table showing all section 6103(f) requests (including requests for business and organization returns or return information) from the tax-writing committees since 2005 for which the Internal Revenue Service (IRS) has a record. We have no reason to doubt your reference to additional section 6103(f) requests dating after 2005 and understand that the tax-writing committees requested and received information under section 6103(f) prior to 2005.

Second, you posed several inquiries as to how the Department has handled section 6103(f) requests in the past. You inquired whether the Treasury Secretary has previously responded to a section 6103(f) request. We are not aware of any previous request to which a Treasury Secretary has directly responded, but we are also not aware of any previous section 6103(f) request that presented serious constitutional questions that extend well beyond the internal revenue laws.

You also asked whether the Department has previously consulted the Office of Legal Counsel (OLC) concerning the legality of a section 6103(f) request. We are not aware of any specific previous request about which Treasury or IRS has consulted OLC, but we cannot be certain. As our June 27 letter notes, OLC provided a published legal opinion concerning the scope of section 6103(f) in 1977; we do not know whether that opinion was sought in connection with a specific request at the time.¹ We also note that it is not uncommon for federal agencies to consult OLC on an informal basis.

You also inquired whether the Department has previously reviewed a section 6103(f) request to determine whether it served a legitimate legislative purpose. We are not aware of any previous section 6103(f) request for which the Department has documented its legal analysis concerning that constitutional prerequisite. This is unsurprising. As explained in our previous letter, there is no need for close review of most requests under section 6103(f) because the purpose of the request is usually self-evident and legitimate. We are not aware of any previous section 6103(f) request for which there was a voluminous public record indicating that the committee's purpose was to release the requested confidential tax information to the public — a unique circumstance that warranted a careful legal review of Chairman Neal's request.

Third, in addition to the documents that we previously provided, you seek internal analysis and communications concerning the legal problems raised by Chairman Neal's request, including an exchange of letters between OLC and the Department. We respectfully decline to provide those materials at this time because they are predecisional and deliberative, and we do not believe they are needed in order to evaluate the Department's decision on this matter. As noted in our June 27 letter, the Secretary's three public letters to Chairman Neal explain at length the basis for the Department's concern about the purpose of the request, the constitutional issues that warranted review by OLC, and the rationale for the Department's final decision based on OLC's legal advice. In addition, OLC provided a thorough opinion memorializing the reasons for its advice, and OLC has published its opinion, thus making its legal reasoning available to all Members of Congress and the public.² We believe this public record provides ample basis for understanding and evaluating the Department's response to Chairman Neal's request. If you have specific questions about the Department's decision, however, we would be pleased to engage further with you and your staff on those questions.

We hope this additional response to your May 14 letter is helpful.

Sincerely,

Justin W. Sok
Senior Advisor
Office of Legislative Affairs

Enclosures

cc:
The Honorable Charles E. Grassley, Chairman

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Attachment A

The following updated table reflects the results of the IRS's search of its limited records for section 6103(f) requests for returns or return information of individual and organization taxpayers since 2005 We caution that the most complete source of information is likely to be found in the tax-writing committees' archives.

Results of IRS Search for Section 6103(f) Requests for Taxpayer Information from Finance Committee/Ways and Means Committee from 2005 to Present (Individuals and Organizations)

Year	Requests for Tax Returns	Requests for Return Information
2019	1 (Chairman Neal's request)	1 (Chairman Neal's request)
2018	0	0
2017	0	0
2016	0	0
2015	0	0
2014	0	0
2013	0	2
2012	0	I
2011	1	1
2010	0	0
2009	0	0
2008	0	0
2007	0	0
2006	1	1
2005	0	0

Beyond Chairman Neal's request, the IRS has identified in its records two requests since 2005 for returns or return information of individual taxpayers. In 2011, then-Ways and Means Committee Chairman Camp requested information about the IRS's gift tax examinations of multiple taxpayers, where media reports had suggested that the examinations were politically motivated. In 2013, a committee chairman requested return information — but not an individual return — regarding whether a Member of Congress had been audited, after committee staff had discovered an email from an IRS employee complaining about the Member of Congress and suggesting an audit Although section 6103(a) prevents us from sharing the information and documents, if any, provided in response to these two requests, the IRS informs us that it did respond to the requests.

The IRS has also identified in its records one additional request since 2005 for returns or return information of organizations. That request involved a 2012 House Ways and Means Committee investigation regarding alleged taxpayer mistreatment in connection with applications for section 501(c)(4) status. The IRS has been unable to locate a copy of the request letter. Although section 6103(a) prevents us from sharing the information and documents, if any, provided in response to this request, the IRS informs us that it did respond to the request.

In addition to the requests that have been identified in the IRS's records, we are able to confirm three requests since 2005 from the Senate Finance Committee that are publicly available. In 2006, the Committee requested return information regarding the Association of Community Organizations for Reform Now (ACORN). That same year, the Committee requested tax returns of certain oil and gas companies. In 2013, the Committee also requested return information regarding alleged taxpayer mistreatment in connection with applications for 501(c)(4) status.