Trump’s tax return battle will be fought in court, Mnuchin says

‘We haven’t made a decision but I think you can guess on the way we’re leaning on our subpoena,’ Mnuchin told appropriators

Secretary of the Treasury Steven Mnuchin prepares to testify during the House Appropriations Subcommittee on Financial Services and General Government Subcommittee on April 9, 2019. On Wednesday Mnuchin was quizzed over releasing President Donald Trump’s tax returns. (Bill Clark/CQ Roll Call)

Treasury Secretary Steven Mnuchin said Wednesday he expects the courts will resolve the conflict between the administration and House Ways and Means Chairman Richard E. Neal over the release of President Donald Trump’s tax returns.

“This will go to the third branch of government to be resolved,” Mnuchin said Wednesday during questioning before the Senate Financial Services Appropriations Subcommittee.

[Mnuchin rejects Neal’s request for Trump tax returns]

Based on Mnuchin’s past responses to Neal’s requests for six years of personal tax returns of the president and six years of returns from eight Trump businesses, lawyers following the issue have expressed doubts that Mnuchin will provide the documents after Neal demanded them in subpoenas issued May 10.

“We haven’t made a decision but I think you can guess on the way we’re leaning on our subpoena,” Mnuchin told appropriators to whom he repeated his concerns that Neal’s request could represent a “weaponization” of the IRS as was seen during President Richard Nixon’s administration.

[Mnuchin misses Trump tax returns deadline; asks for more time]

After the hearing, Mnuchin told reporters he would respond by Neal’s May 17 deadline.

“Well we haven’t had an official response yet, I think we have a few more days,” he said. “We will comply with the timing of it. I think you can pretty much guess how we’re going to, but I haven’t made a decision.”

Neal’s requests and his subsequent subpoenas are being made under Section 6103 of the tax code, which states that upon “written request” from the chairman of either the House Ways and Means or Senate Finance committees, “the [Treasury] Secretary shall furnish such committee with any return or return information specified.”

Neal’s subpoenas give Mnuchin and IRS Commissioner Charles Rettig until 5 p.m. May 17 to supply the requested documents.

“I think this is a very important issue that has a precedent way beyond any one president and Congress, affects weaponization of the IRS and could be used against anyone,” he told the committee.

Mnuchin was also asked who within the administration he has talked to about Neal’s request for the president’s tax returns.

“I have not discussed this with the president or anybody in the White House,” he said.

Mnuchin also testified that both IRS Commissioner Charles P. Rettig and IRS Chief Counsel Michael J. Desmond agreed with the decision not to hand over Trump’s tax returns to Neal. (Rettig also testified at Wednesday's hearing. )


[Steven Mnuchin makes case to GOP to allow easing of sanctions on Russian companies]

Desmond’s advice is particularly pertinent because a 2001 order from the Treasury general counsel delegated the authority to make determinations under Section 6103 of the tax code regarding the disclosure of tax return information to the IRS chief counsel. As such, Desmond could be on the legal hot seat based on some tax attorneys' interpretations of the statute and associated guidelines.

Treasury’s current general counsel is Brent J. McIntosh, and Desmond reports to him with respect to legal advice or interpretation of tax law relating solely to tax policy, and to both McIntosh and Rettig on litigation and matters not relating solely to tax policy. Besides being chief counsel at the IRS, Desmond is also assistant general counsel at Treasury.

“I have had conversations with the four of us on the phone, yes, and I have never heard anything that the chief counsel thought otherwise,” Mnuchin added.

Mnuchin told the committee that Rettig “has independently concurred with my decisions. So notwithstanding the delegation … he has specifically sent notices to Ways and Means concurring with my decision.”

Rettig declined to elaborate after the hearing. Asked about any notices he had sent to Ways and Means, he said, “Again, I would direct you to the testimony and to” letters that Mnuchin had written to Neal.

The IRS did not immediately respond to a request for the notices Mnuchin said Rettig have sent to Neal.

Neal’s office provided a letter from Rettig to Neal dated April 23, which says that a determination on responding to Neal’s request had not yet been made.

On Tuesday, Senate Finance ranking member Ron Wyden of Oregon wrote Mnuchin about his refusal to supply Neal with the president’s tax returns.

“I am concerned that you are taking unprecedented steps that seriously undermine the ability of the Congressional tax-writing committees to obtain tax return information necessary to the performance of their legislative duties,” he wrote.

Wyden pointed to the statutory directive that the Treasury Secretary “shall furnish” tax returns requested by the House Ways and Means Committee chairm

“This language is mandatory, not discretionary,” Wyden wrote in his letter to Mnuchin.

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