Trump’s Refusal to Release His Own Tax Returns and California’s Legislature

As most everyone is aware, Trump has refused to release his tax returns, breaking precedent with decades of presidential candidates and president’s release of tax returns.  Even Dick Cheney,  grumpy corporatist veep, released his tax returns.  I had fun using them as the raw material for an introductory course in federal income taxation where we looked at the returns to understand how the various “lines” correspond to items specified in the Code (like “adjusted gross income” and “miscellaneous deductions”).

Trump, however, used various excuses, none of them particularly strong, to say he “couldn’t” release his returns.  The main excuse was that his returns were under audit.  Of course, that makes no difference whatsoever.  Any taxpayer can release returns, whether or not they are under audit, and other presidential candidates (Nixon comes to mind) have done so during an audit period.  Trump most likely didn’t want to release his tax returns because he didn’t want to provide fodder to critics who would look at the relatively measly amounts of taxes that he had to pay,  or find information about trusts and other entities set up to keep money of shore or, who knows, find information about connections to various Russian oligarchs.  Another reason that Trump likely hasn’t wanted to release his returns–he wants to be able to pretend that he is not a beneficiary of all those many loopholes in the Code that particularly benefit the ultra-wealthy.

That comes to the surface now, because of his claims, in an Indianapolis speech, that he would not receive any benefit from the so-called “reform” tax “framework” put out by Trump and the GOP leadership.  We know from 2005 returns that he has, at least in that year, had to pay $31 million in Alternative Minimum Taxes (AMT) in a year when he would otherwise have paid very little in taxes.  That is, in fact, the purpose of the AMT–to force wealthy taxpayers to pay some tax on their incomes when they otherwise have the ability to take advantage of so many loopholes that they would get off pretty much tax free.  So we know that Trump lied when he said in Indianapolis that he would not get a benefit from his own tax proposal.  His tax proposal would eliminate the AMT backstop for wealthy payment of at least some taxes.  That would directly benefit Trump.  He lied.

Trump would also directly benefit from the elimination of the Estate Tax.  That is a tax that is very low at this point, because of decades of GOP whittling away at it to reduce it to zero on behalf of their wealthy donors.  When a married couple with $11 million in assets die, their estate would not pay any estate tax, because there is an exemption for the first $11 million for a couple.  On the rest of the estate above $11 million (a size of estate of those in the top 1% of the distribution), the tax rate is now exceedingly low–only 35%.  Trump’s plan would reduce it to zero.  He said in the Indianapolis speech that eliminating the estate tax would help middle class people, small family farms, and small businesses.  He lied.  Only the wealthy pay any estate tax (see above).  Very few small businesses and family farms are subject to the estate tax at all–estimates say there would be only about 80 in a given calendar year at this point.  Of those that are subject to it, the amount subject to the estate tax is only the excess over the exemption amount.  And family farms get 14 years to pay off any tax like that the heirs might owe, through a provision for installment payment intended to help preserve family farms and allow them to pay the tax due, if any, over time out of the operating profits of the business.  So, again, Trump lied.

Trump also would likely benefit huugely from the reduction of rates on corporations, through getting more dividends out of the even higher corporate profits that would result  (to the extent that he has investments in corporate stock, which are likely substantial, since most of the financial assets in this country are owned by those in the very tip-top of the income and wealth distribution). So, again, Trump lied.

Trump would also likely benefit bigly from the reduction of rates on pass-through income from real estate partnerships and hedge funds.  The Trump empire is clearly in real estate, and there are likely quite a few partnerships in the structure of the Trump companies.  Since otherwise passthrough income is currently taxed at the individual partner’s personal income tax rate, a 25% rate on income that would currently be taxed at a 39.6% rate (including the tax on investment income), is a 14.6% lower rate or more than a 1/3 reduction in the tax rate on the income. So, again, Trump lied.

Given that Trump distorts so easily the actual effect on him personally of his tax proposals, it would clearly be helpful to the citizenry to have a chance to review Trump’s tax returns (and to have had them before the election to take into account as he talked about taxes and wealth). Every president has done so since the 1970s.  Seventy four percent of respondents in national polls think Trump should release his tax returns.  See McGuire release.

The California legislature has decided that if Congress won’t act to do something about this, than it will.  As Democratic Senator Mike McGuire, a proposer of the bill, noted in a June 1, 2017 release about the bill:

 “Everyone knows that President Trump used the birth certificate issue against President Obama as a dog whistle to white supremacist groups,” Senator McGuire said. “The truth is that we have never elected a president who was not a citizen. That has never been a problem and does not require a solution. But we have elected a president – and he is currently in office – who has serious conflicts of interest that are endangering our national security and who is consistently violating ethical norms to enrich himself and his family. That’s a very serious problem which does require a solution – and the solution is SB 149.”

The legislature has passed a bill (Senate Bill 149, titled Presidential Tax Transparency bill), now apparently awaiting Governor Jerry Brown’s action, that adds a ballot-eligibility disclosure provision requiring presidential candidates to release 5 years of tax returns.  See Brandon Carter, California legislature passes bill requiring presidential candidates to release tax returns, The Hill (Sept. 14, 2017); CNN Wire & John Fenoglio, California passes bill requiring presidential candidates to release tax returns; Trump could be impacted in 2020, KTLA News (Sept. 16, 2017). The California secretary of state would make the returns public (with redactions as necessary) on the state website. Although it was mostly Democrats who supported the measure, the bill was bipartisan: some Republican members in both chambers supported the effort.

Expect a court challenge to the bill if Governor Brown does sign it into law.  The challengers would argue that any additional restriction–even a ballot eligibility requirement–is unconstitutional, since it would add to the eligibility requirements in the Constitution.  But the supporters would ably demonstrate that’s a specious argument: every state has requirements that candidates must comply with to get on the ballot–mode for getting signatures, mode for making requests, timelines within which to comply, fee payments, etc.  This tax return release provision is more similar to those (i.e., a disclosure requirement that is procedural in nature) than it is to the eligibility requirements of age, citizenship, residency set forth in the Constitution (“achievement” requirements that are substantive in nature).  The substance on the tax return isn’t relevant to whether a candidate can be on the ballot; just the procedural element of complying with the disclosure requirement.  Constitutional scholar Laurence Tribe agrees with me that a disclosure requirement isn’t an additional qualification (see KTLA News article for quote). And other states–New Jersey, Connecticut, Massachusetts, New York, for example– are considering or have passed similar action.