DAVID CAY JOHNSTON
06.15.16
If the presumptive GOP nominee keeps hiding his returns, Congress could force him to show his hand with a one-line amendment to the tax code.
New questions about the integrity of Donald Trump’s income tax returns, and new indications that he does not pay income taxes, arise from rulings in two tax appeals that Trump filed in the 1990s. Trump lost both cases.
Trump’s 1984 federal income tax return included a Schedule C, the form used by sole proprietors, the decision in the first case shows.
Trump listed no income on that form, yet he deducted $626,264 as expenses. His New York City tax return also showed no income, but listed slightly less in expenses: $619,227.
No receipts, invoices, or other documentation were provided when Trump was under audit or during his appeal from what he argued was an unfair demand for more tax.
“The record does not explain how Petitioner [Trump] had significant expenses without any concomitant income from his consulting business,” wrote H. Gregory Tillman, the city administrative law judge who heard the case on April 29 and May 28 of 1992.
Jack Mitnick, the lawyer and accountant who prepared Trump’s tax returns for more than two decades, was Trump’s only witness. Mitnick testified that he was “thoroughly familiar” with the Trump tax returns and all aspects of the finances of Trump Tower, which were central to the appeal.
But when shown a photocopy of Trump’s 1984 tax return, Mitnick testified that “we did not” prepare that return, referring to himself and his firm, and he said did not know who did. However, Mitnick did not dispute that it was his signature on the photocopy.
The original tax return was never found, the judge noted.
Among the issues raised by Mitnick’s 1992 testimony is whether Trump or someone acting on his behalf substituted a return that he or someone else prepared and then transferred Mitnick’s signature using a photocopier.
Mitnick, now 71 and semi-retired, told me in a telephone interview Tuesday that he had no recollection of that case or a second appeal in which he represented Trump, whose returns he prepared until about 1995.
The second case was before the New York State Division of Tax Appeals in 1994 and concerned taxes on profits from selling units in an East 61st Street apartment building which was 90 percent owned by Trump, with his brother Robert and aide Louise Sunshine splitting the remaining share.
Again the issue was 1984 deductions Trump took without providing any documentation to auditors or when Frank W. Barrie, a state administrative law judge, heard his appeal.
It was in this appeal that the record shows Trump paid no income tax in 1984.
“Mr. Mitnick has prepared Donald Trump’s income tax returns for the last 20 years and testified that Mr. Trump had no income tax due against with the credit ‘could have been applied,’” Judge Barrie wrote in his 23-page opinion.
In the city case, Judge Tillman noted that Trump complained of double taxation, but found that claim baseless. Using bold face to emphasize his point, Judge Tillman wrote, “The problem at issue is not one of double taxation, but of no taxation.”
The Trump campaign did not respond to an emailed list of detailed questions about the two cases. A second email was also ignored.
These two decisions should prompt new calls for Trump to release his tax returns. He claims, falsely, that he cannot release his returns since 2012 because they are being audited. But a tax return is filed under penalty of perjury and releasing a return has no effect on an audit, as many tax authorities (including a former IRS commissioner) have noted.
But even accepting Trump’s specious claim, no reason exists for him to withhold his complete returns from 1980 through 2011 since by his account those audits are closed.
And to be clear, releasing just the summary of the tax return, the Form 1040, is not adequate. Trump, like all candidates as well as sitting presidents and vice presidents, should disclose his complete tax returns including every form, schedule, statement, and the worksheets so we see just how the tax liability was determined.
That Trump has no intention of ever releasing his tax returns became clear on May 13 when he snapped at an ABC anchor that his federal income tax rate “is none of your business.”
The tradition of presidential candidates disclosing their tax returns has an august purpose: making sure that another criminal is not a heartbeat from the presidency or in the Oval Office.
The disclosure tradition dates to when Spiro Agnew resigned as vice president in 1973 and then plead guilty to a tax crime. President Richard Nixon was an unindicted conspirator in a felony for which his tax lawyer Edward L. Morgan went to prison for creating a fraudulent $576,000 tax deduction on his behalf—one of the specifications in the impeachment proceedings that never came to a vote because Nixon resigned in August 1974.
Hillary Clinton, Trump’s expected opponent in the November election, and her husband have made public their complete tax returns going back more than three decades. Their returns since 1992 are available here.
Congressional Republicans who are distressed about Trump’s fitness to run for president could make his tax returns public. Indeed, in the 1920s tax returns were public record and newspapers routinely reported the precise income and tax paid by prominent Americans.
Congress could simply add a one-line amendment to Section 6103 of the tax code, which makes returns confidential, providing that the nominee of any party whose name appears on the ballot in say 10 or more states will have his or her complete tax returns, for as many years as the IRS has copies, posted on the IRS website.
Such a rule would be based on an objective standard—appearing on the ballots of many states as a presidential candidate—and thus any federal court should dismiss a legal attack as unfounded with an expedited appeal to the Supreme Court.
The record in these two cases offers clear evidence that Trump, at least in these two instances, has played fast and loose with his obligations as a taxpayer. It could throw light on why he’s offered so many different explanations about why he hasn’t disclosed his complete tax returns at least through the year 2011.
The facts in the two appeals could arguably be construed as evidence of calculated tax fraud, a felony. They certainly cry out for disclosure because, as Richard Nixon told us, Americans should know to a certainty that their president is no crook.
