Written By Sam Cohen
Abstract
On August 18, 2017, District Judge James E. Boasberg, of the U.S. District Court for the District of Columbia, dismissed Electronic Privacy Information Center’s (“EPIC”) complaint, which requested that President Donald J. Trump disclose his tax returns.
Background
On February 16, 2017, EPIC requested all of Donald J. Trump’s individual income tax returns dating back to 2010, in addition to filing a Freedom of Information Act (“FOIA”) request that he disclose any financial relationships with the Russian government or Russian businesses. The requests were denied because they failed to comply with the published rules and were deemed incomplete requests that the IRS could not process.
After the denial, EPIC filed another request, this time claiming a right to the documents under § 6103(k)(3) of the IRS code. This request was also denied, and the following lawsuit was filed in response.
Discussion
FOIA requests have two requirements: (1) that a request reasonably describes the records sought, and (2) that a request follows the agency’s published rules of stating the time, place, fees (if any), and procedures to be followed. The published rules of the IRS on FOIA procedures can be found in Treasury Regulation § 601.702.
In order for a FOIA application to be considered complete, the subject of the request must give consent. Without consent, the application is incomplete. In EPIC’s case, the requests were filed without the consent of President Trump; therefore, the IRS had no choice but to close the request file without granting the application. The court confirmed that such IRS regulations are reasonable and should be upheld.
EPIC’s second FOIA request was premised on § 6103 of the IRS code, which allows the IRS to disclose records, in limited circumstances, without the consent of the subject. The specific subsection upon which EPIC based its claim was § 6013(k)(3), which can be used to disclose tax returns to correct misstatements of fact. The misstatements alleged by EPIC were tweets by President Trump. Two particular tweets provided such a basis:
“For the record, I have ZERO investments in Russia.” July 26, 2016 at 5:50 p.m. EST.
“Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA – NO DEALS, NO LOANS, NO NOTHING!” Jan. 11, 2017 at 6:31 a.m. EST.
For the purposes of the motion to dismiss, the Court had to accept that these tweets were misstatements that could sufficiently trigger § 6013(k)(3), as the Government’s argument against the assertion was a single sentence without citation.
The Court subsequently found that the exceptions under § 6013(k)(3) may not be get around the consent requirement of the IRS regulations; however, for the sake of argument, the Court accepted that consent was not needed. Instead, the Court found that this exception could not be used at all. This is because, before the IRS has to disclose any information under this exception, a party must obtain the approval of the Joint Committee on Taxation. EPIC did not do so. Further, the Court noted that this provision had never successfully been used to compel the disclosure of IRS records, since the Joint Committee on Taxation has never exercised this authority with regard to any other parties.
Beyond this argument, EPIC also alleged two violations of the Administrative Procedure Act. Both were rejected by the Court. Because, the Court decided that there was no way for the judicial system to grant the relief sought by EPIC, the complaint was dismissed.
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Sources Cited
Elec. Privacy Info. Ctr. v. IRS, 2017 U.S. Dist. LEXIS 131911 (D.C. Cir. 2017).
Shayna Posses, Trump or Congress Must OK Tax Return Release, Judge Says, Law360 (Aug. 18, 2017).