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IRS Memo Says President's Tax Returns Must Be Given to Congress

Wendy Benjaminson

(Bloomberg) -- A legal memo prepared by the IRS says tax returns must be turned over to Congress if requested, exposing disagreement within the Treasury Department, which has refused to comply with a subpoena for President Donald Trump’s returns, The Washington Post reported.

The memo said that the only way out of complying with the request from House Ways and Means Chairman Richard Neal is for the president to take the rare step of executive privilege.

The Post said in a report published Tuesday that it could not determine who wrote the memo or who reviewed it. The agency told the Post that IRS Commissioner Charles Rettig and current chief counsel Michael Desmond were unfamiliar with it until the Post asked them about it. The Internal Revenue Service also said the memo was never forwarded to Treasury.

A Treasury spokesman said that no one in the agency’s leadership had seen the IRS’ memo and reiterated that the decision to withhold Trump’s financial records was based on advice from the Justice Department.

The White House declined to comment. The Ways and Means Committee did not immediately respond to a request for comment.

But the memo does say that the disclosure of tax returns to the committee “is mandatory, requiring the secretary to disclose returns, and return information, requested by the tax-writing chairs,” which would mean the leaders of Ways and Means, the Senate Finance Committee and the Joint Committee on Taxation.

The memo was prepared last fall, the Post reported, when Democrats were readying their request for six years of Trump’s personal and business tax returns. The request is based on a 1924 law that says the Treasury Department “shall” turn over any individual’s tax returns to Congress if requested by those congressional chairmen.

Some legal scholars have said that the request needs a legislative purpose, although the law does not state that outright. Neal told Treasury Secretary Steven Mnuchin that he needed the returns so his committee could oversee the routine annual audits conducted of every president and vice president.

After Mnuchin declined Neal’s request several times, Neal issued a subpoena, which Mnuchin last week refused. Neal and other House leaders are considering their next steps.

But U.S. District Judge Amit Mehta, in a related ruling involving the Trump administration’s efforts to block a different committee from seeing the records of the president’s accounting firm, Mazars LLC, said it was not the place of either the judicial branch or the executive branch to question Congress’s stated legislative purpose.

The 10-page memo says the law “does not allow the secretary to exercise discretion in disclosing the information provided the statutory conditions are met.”

“The secretary’s obligation to disclose return and return information would not be affected by the failure of a tax-writing committee . . . to state a reason for the request,” it says, according to the Post. The “only basis the agency’s refusal to comply with a committee’s subpoena would be the invocation of the doctrine of executive privilege.”

Trump broke with more than 40 years of presidential campaign precedent when he refused to release his tax returns in 2016. He has also refused since then, claiming they were under audit, although no law prevents Congress reviewing them while the IRS audits them.

House Democrats want to see Trump’s returns to confirm the amount and source of his wealth, to see if he has any foreign entanglements that could affect his presidency, and whether he ever cheated on his taxes.

(Updates with Treasury Department comment in fourth paragraph.)

--With assistance from Alyza Sebenius and Saleha Mohsin.

To contact the reporter on this story: Wendy Benjaminson in Washington at wbenjaminson@bloomberg.net

To contact the editors responsible for this story: Wendy Benjaminson at wbenjaminson@bloomberg.net, John Harney

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