It’s a constitutional crisis! Or so claim congressional Democrats, but at this point it looks more like a one-party panic attack. They keep sniffing the trailing fumes of the Mueller investigation, which turned up nothing on the President, or at least nothing worth prosecuting. There is also an ongoing dispute over the President’s tax returns, which he has chosen not to make public. Last week, House Ways and Means Committee Chairman Richard Neal subpoenaed the IRS for six years of Trump’s tax returns, but that is likely to be ignored. There is no law or requirement that Trump release the returns, and the IRS would be under no obligation to comply with the subpoena if it has “no legislative purpose”, as Treasury Secretary Steve Mnuchin said of an earlier request by Neal. For his part, Trump has falsely claimed to the public that an ongoing audit prevents him from releasing his tax documents, but he is fully within his legal rights to withhold his returns, at least for now. His decision is, no doubt, political and it may be wise to that extent. Nevertheless, the suspicion that Trump is a tax cheat is fueled by his very reluctance to make the returns public.

Constitutional Protection

The legality of Trump’s refusals to make the returns public is established in the Constitution, according to law professor Adam Grewal of the University of Iowa:

“Though a federal statute seemingly compels the IRS to furnish, on request, anyone’s tax returns to some congressional committees, a statute cannot transcend the constitutional limits on Congress’s investigative authority. Congress enjoys a near-automatic right to review a President’s tax returns only in the impeachment context.”

If explicit action is taken to impeach the President, justifiably or not, then presumably he or the IRS would be forced to turn over his tax returns to Congress. Even then, however, it would probably become the subject of a protracted court fight.

Partisan Charges

It’s not surprising that Trump has engaged expensive tax experts for the Trump organization and his personal taxes. Of course he has! Anyone in his position would be crazy not to. Minimizing taxes is a complex undertaking even for those having far less wealth and business complexity than a Donald Trump. There is no reason why he should have foregone any tax advantages for which he or his business was entitled. And in fact, he was entitled to use losses on a number of failed enterprises over the years to offset other income for tax purposes. Under these circumstances, a tax liability of zero is not terribly surprising.

Specific claims that Trump is a tax cheat are as yet unfounded. As Jeffrey Carter explains, there is an array of tax provisions intended to provide incentives to businesses precisely because tax law has been crafted to encourage business activity; real estate development is no exception. The idea is that businesses encourage employment, income, incremental tax revenue, and eventually more development. While I generally oppose tax provisions that impinge on specific kinds of human activity, there is nothing illegal or even immoral about taking advantage of tax rules that exist. In fact, there are legal tax maneuvers that can allow a successful real estate development business to generate continuing tax losses.

There are allegations that the Trump organization used fraudulent appraisals to understate values of buildings as a means of minimizing taxes. A variety of appraisal techniques are used in commercial real estate, each involving a series of assumptions and possible adjustments. Appraisals might be especially difficult for complex properties such as large, high-end gambling developments. Perhaps reviews of appraisals are part of the ongoing IRS audit to which Trump referred. There’s little doubt that Trump’s tax advisors would have sought to use the most advantageous techniques and assumptions that would pass scrutiny by the IRS and other tax authorities. However, it is unlikely that he was intimately involved in the appraisal process himself. The audit should determine whether their methods were excessive, not a swarm of politicians and leftist journalists. The penalties for any past understatement of taxes might be financially significant, but his presidency would almost certainly survive such a finding.

Again, Trump may be wise to withhold his tax returns. In today’s political environment, every deduction, credit, and loss carry-forward would be characterized by Democrats and the media as an affront to the American people. In fact, most American taxpayers attempt to minimize their taxes, as well they should. In a world with a simple, sane tax code, a simple definition of taxable income, and a competent IRS, there would be little reason for the clamor over public disclosure of tax data by public officials or candidates for office.

Universal Tax Disclosure? No

That brings me to the subject of a rather striking proposal: Robin Hanson believes that all tax returns should be made publicly available: yours, mine and Donald Trump’s. That change was made in the U.S. in 1924, but soon reversed, according to Hanson. It is done today in Norway, though the identity of anyone seeking that information on a taxpayer is made available to the taxpayer. Without the latter condition, the idea seems like an invitation to voyeurism, or worse. The several rationales offered by Hanson all tend to fall under the rubric that “transparency is good”. He includes critical remarks from Tyler Cowan on the proposal, dismissing them all on various grounds. But I happen to agree with Cowan that not all transparency is good. In fact, my first reaction is that the proposal would be an unnecessary extension of the intrusion into private affairs made by government taxation of income.

Universal tax disclosure might have some value in discouraging tax evasion, and perhaps the IRS could create a schedule of buy-off rates by income level at which tax information would be kept private. However, I’m skeptical of the other benefits cited by Hanson. For one thing, if the identity of the inquirer is revealed, many of the purported benefits would be nullified by discouraging the queries. To the extent that transparency has value, many credit transactions or credit payment mechanisms already require verification of income. Insurance underwriting is also sometimes dependent on proof of income. I am skeptical that the ability of workers to collect information from the tax returns of other individuals would greatly improve the efficiency of labor markets. The value of income data to counter-parties in other kinds of relationships, such as prospective marriage, would seem to be balanced by the value of privacy. Hanson says that people don’t place a high value on privacy, but it clearly has value, and I’m not sure his Twitter poll with a single price point is a valid test of the proposition. And again, with the simple tax code we should have, the benefits of acquiring the tax returns of politicians would boil down to an opportunity for shaming the rich and “tax pinchfists” (successful tax minimizers), which is what some of this is about anyway.

Conclusion

Donald Trump’s tax returns are a prize that his detractors hope will reveal an abundance of classist political fodder and perhaps even evidence of misdeeds. They can only hope. Unless Articles of Impeachment are drafted in the House of Representatives, the Constitution protects President Trump’s tax returns from congressional scrutiny. Trump is probably wise to resist disclosure of his taxes, since the returns would be picked over by the Left and criticized for any whiff of tax management, legal or otherwise. Trump’s businesses hired experts to aggressively minimize tax liabilities, but there is no evidence that they engineered any illegal maneuvers.

Finally, to suggest that all tax returns be made publicly accessible is to support a massive invasion of privacy. Then again, the very imposition of our complex income tax code is a massive invasion of privacy, and one that creates a substantial compliance burden on all income earners.