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Trump Tax Return Handover Uncertain Despite House Legal Victory

Aug. 11, 2022, 8:45 AM

The House Ways and Means Committee still faces hurdles in getting former President Donald Trump’s tax returns from the Treasury Department, even after a court endorsed its authority this week.

Shortly after the US Court of Appeals for the DC Circuit’s Tuesday ruling, the committee tweeted that it expected “to receive the requested tax returns and audit files immediately.” The circuit said, however, it wouldn’t issue a mandate to enforce its decision until seven days after Trump or his business entities request a rehearing, although it left open the possibility of expediting things later.

Legal experts pointed to that delay as suggesting a documents transfer isn’t imminent.

“The claim that they are immediately going to get” the records “is obviously wrong,” said Andy Grewal, a University of Iowa law professor who focuses on tax and constitutional issues. Whether the committee gets them before January “is uncertain,” he added.

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Jan. 3 is a potentially crucial target, because that’s when a new Congress will be sworn in, and Republicans could shut down the records pursuit if they regain control of the House.

Ways and Means has argued that getting the former president’s personal and business returns from Treasury will help the committee assess whether the Internal Revenue Service’s presidential audit program has the resources to audit large and complex returns, and whether program auditors have been improperly influenced.

There are “a lot of ways this could easily wind up pushing past Jan. 3, but also some ways that it could happen before then,” Josh Chafetz, a Georgetown University law professor, said in an email.

Chafetz pointed to potential delays if the DC Circuit agrees to rehear the case, if the Supreme Court issues a stay to pause a DC Circuit mandate, or if the Supreme Court agrees to take up the case.

Ways and Means also could argue that there is good cause for expediting the mandate “given the length of the litigation at this point, and given that congressional requests expire at the end of each Congress,” according to Brianne Gorod, chief counsel for the Constitutional Accountability Center.

Gorod, who co-authored a friend-of-the-court brief at the DC Circuit in support of the committee’s position, noted that the circuit mentioned that possibility when it said it would withhold the mandate.

“January 3 is toast” if the full DC Circuit agrees to rehear the case, or even if a judge wants to draft an opinion denying that request, said Corbin Barthold, director of appellate litigation for the think tank TechFreedom, in an email. The Tuesday ruling came from a three-judge panel of the circuit.

Chafetz noted that the statute under which the committee requested the records, tax code Section 6103(f), also allows the Senate Finance Committee to request tax return information from Treasury, opening up a further possibility for Democrats if the case drags on and they lose control of the House, but hold on to the Senate.

“If I were Ron Wyden, I’d be thinking about making that request now, to get the ball rolling,” Chafetz said, referring to the Finance Committee’s Democratic chairman.

The Ways and Means Committee, as well as Cameron T. Norris of Consovoy McCarthy PLLC, who represented Trump and his entities, didn’t respond to requests for comment.

To contact the reporter on this story: Aysha Bagchi in Washington at abagchi@bloombergtax.com

To contact the editor responsible for this story: Patrick Ambrosio at PAmbrosio@bloombergindustry.com