The New York Times no doubt considers it quite a coup to have obtained and publishedPresident Trump’s tax return information from 1985 to 1994. But doing so violated Trump’s right under federal law to the confidentiality of his tax returns.
The Times – which reported that Trump’s businesses lost $1.17 billion during the 10-year period – has no more right to Trump’s tax returns than it has to mine or those of any of you reading these words.
Confidentiality, as the Ninth U.S. Circuit Court of Appeals held in 1991 in U.S. v. Richey, is essential to “maintaining a workable tax system.”
Taxpayer privacy is “fundamental to a tax system that relies on self-reporting” since it protects “sensitive or otherwise personal information,” said then-Judge (now Supreme Court Justice) Ruth Bader Ginsburg in 1986 in another case when she served on the U.S. Court of Appeals for the District of Columbia.
Federal law – 26 U.S.C. §7213(a)(1) – makes it a felony for any federal employee to disclose tax returns or “return information.” Infractions are punishable by up to five years in prison and a fine as high as $250,000 under the Alternative Fines Act (18 U.S.C. §3571).
Regardless of the accuracy or inaccuracy of The New York Times story, tax returns themselves, as well as tax return information such as these IRS transcripts (which are a summary of the tax returns), are protected from disclosure by federal law. And this provision applies to private individuals as well as government employees, a fact that should be considered by the New York Times’ source.
According to the newspaper, it did not actually obtain Trump’s tax returns but “printouts from his official Internal Revenue Service tax transcripts, with the figures from his federal tax form, the 1040, from someone who had legal access to them.”
The Times quotes a lawyer for the president, Charles J. Harder, as saying that the tax information in the story is “demonstrably false” and that IRS transcripts, particularly from the days before electronic filing, are “notoriously inaccurate.” However, that claim is disputed by a former IRS employee now at the liberal Urban-Brookings Tax Policy Center.
The president tweeted Wednesday in response to the Times story: “Real estate developers in the 1980’s & 1990’s, more than 30 years ago, were entitled to massive write offs and depreciation which would, if one was actively building, show losses and tax losses in almost all cases. Much was non monetary. Sometimes considered ‘tax shelter,’ … you would get it by building, or even buying. You always wanted to show losses for tax purposes….almost all real estate developers did – and often re-negotiate with banks, it was sport. Additionally, the very old information put out is a highly inaccurate Fake News hit job!”
Regardless of the accuracy or inaccuracy of The New York Times story, tax returns themselves, as well as tax return information such as these IRS transcripts (which are a summary of the tax returns), are protected from disclosure by federal law. If the newspaper obtained this information from an employee of the IRS, that employee will be in big trouble if he or she is identified.
Could the editors and reporters at the New York Times be prosecuted for publishing this information?
Section (a)(3) of the law makes it a felony for any person who receives an illegally disclosed tax return or return information to publish that return or that information. But it’s unknown if the bar on publication by a media organization could survive a First Amendment challenge.