I.R.S. Memo Undercuts Mnuchin on Withholding Trump’s Tax Returns
WASHINGTON — The Internal Revenue Service has no choice but to honor congressional requests for President Trump’s tax returns unless he invokes executive privilege to protect them, according to a draft legal memo written by agency staff members.
The memo appears to undercut the reasoning offered by Treasury Secretary Steven Mnuchin, who has refused to comply with Democrats’ requests because they lack a “legitimate legislative purpose.” Mr. Mnuchin said he made his decision after consulting with lawyers from the Treasury Department, the I.R.S. and the Justice Department.
But the I.R.S. memo says the Treasury secretary does not have the authority to deny tax-writing committees’ requests for taxpayer returns.
The House Ways and Means Committee is seeking six years of the president’s personal and business tax returns. Mr. Trump has not asserted executive privilege to block the request, and his personal lawyers have asked the Treasury Department not to release them. The president has indicated that he is prepared to take the legal fight over his returns to the Supreme Court.
The confidential I.R.S. document was first obtained by The Washington Post, and the tax agency confirmed its authenticity.
An I.R.S. spokesman said that the draft memo was written last fall and that the current I.R.S. commissioner, Charles P. Rettig, and its chief counsel, Michael Desmond, were not aware of it until this week. The memo was not sent to the Treasury Department.
“The memo in question is a draft background paper that was never finalized,” said the I.R.S. spokesman, Bruce Friedland. “It is not the official position of the I.R.S.”
A Treasury spokeswoman said that neither Mr. Mnuchin nor the department’s leadership team was previously aware of the memo. However, she said that the analysis described in it does not appear to address the “constitutional impediments” that the Treasury Department has cited as preventing it from disclosing Mr. Trump’s tax returns.
The president and his top advisers have repeatedly signaled that the administration would not hand over the documents without a fight.
At a Senate hearing last week, Mr. Mnuchin said that he has had multiple conversations with Mr. Rettig and with the lawyers at the I.R.S. about the legal issues surrounding the request for Mr. Trump’s tax returns. The Treasury secretary said that Mr. Rettig agreed with the decision not to release them to Congress.
Mr. Mnuchin is expected to testify on Wednesday morning before the House Financial Services Committee and is likely to be grilled by Democrats about the decision not to hand over the returns.
Mr. Trump broke decades of precedent by not releasing his tax returns while running for president, claiming that he could not do so because he was under audit by the I.R.S. There are no laws preventing taxpayers from releasing their returns while under audit.
Last month, Representative Richard E. Neal, Democrat of Massachusetts and the chairman of the House Ways and Means Committee, used an obscure provision of the tax code to try to obtain the financial papers. Mr. Neal said the information was needed so that the committee could review how the I.R.S. conducts presidential audits.
The Treasury Department declined that request, prompting Mr. Neal to issue a subpoena to try to force Mr. Mnuchin to furnish the returns. Mr. Mnuchin again refused last week, saying that the matter would be settled by the courts.
Although the I.R.S. memo was never finalized, it highlights the administration’s attempt to deal with an unusual request, one that has placed Mr. Mnuchin, a staunch Trump ally, in the middle of a legal war over the president’s personal financial information.
John Koskinen, the former I.R.S. commissioner, said that it was conceivable that career staff in the agency’s legal department drafted the memo and that it was buried because it was clear that the conclusion would be unacceptable to the White House. He said that he would be surprised if the leadership of the I.R.S. and Treasury was not aware of such a document because the issue is so politically sensitive.
“It would be stunning to me if either Rettig or Mnuchin said, ‘Gee, I didn’t know about that,’” Mr. Koskinen said.
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