Canada: How Trump's Tax Returns Can Be Legally Released

Last Updated: June 5 2017
Article by Michelle Cook (Summer Law Student)

United States President Donald Trump has given every excuse not to release his tax returns—first, he was under audit, then, it was that the American people just do not care about his tax returns, next, he needed to wait until his new taxes were filed, etc. Finally, he backtracked saying he never promised to release them at all. He has even gone so far as saying that rallies demanding he release his taxes were by paid protestors of the Democratic party. While it is clear that Trump is not going to release any of his tax returns, 80% of Americans and 64% of self-identified Republicans still feel that he should do so. Donald Trump still remains the first American president since Richard Nixon not to disclose his tax returns.

Attempts to pass legislation that would legally mandate presidential candidates to release their tax returns have been shut down by Trump's Republican inner circle. However, New York state may be able to release Trump's tax returns via a simple legislative amendment.

This little legal quirk can only occur in New York State, due to its unique position as the President's home state. Every year, Americans file federal income tax returns with the IRS (which currently remains untouchable) but they also file a similar resident income tax return with their home state. While the state tax return is not as comprehensive as the federal filing, it would still include in-state and out-of-state declared income, charitable contributions and other expenses. Trump's state tax returns would also indicate how much taxes he pays directly to the state as well as to New York City. New York City would be highly motivated to see that cost, considering they had to pay $37 million to protect Donald, Melania and Barron Trump from Election Day to the inauguration as they stayed in Trump tower (Congress has only paid $7 million of that bill). Moreover, Melania continues to refuse to live with Donald Trump in the White House, costing tax payers an unknown amount (the cost of keeping Melania and her son safe is approximately $182K a year or up).

On April 26, 2017, NY State Assemblyman David Buchwald and state Senator Brad Holyman tried to pass legislation that would require the state tax authority to publicly post on its website the past five years of tax returns filed by the president and vice president, the state's two U.S. senators, state governor, lieutenant governor, state comptroller and state attorney general. These returns would still be posted after these individuals leave office.

If the legislation was passed, it is inevitable that the President would try to fight back. With that being said, Politico found that the bill would be constitutionally sound.

In the United States, bills can be challenged as a "bill of attainder," i.e. a legislative act that unconstitutionally singles out a specific person or group for punishment (in Canada, this would also render legislation unconstitutional under an "abuse of process," see Roncarelli v. Duplessis). However, on its face, this bill does not single out Donald Trump. Instead, it is focused on any of the specified elected officials, now and in the future. It is customary for elected officials to release their tax returns every year, and this legislation would be a codification of that custom (in Canada, parliamentary customs are automatically incorporated as quasi-constitutional requirements via the common law). Moreover, the United States has Supreme Court jurisprudence stating that legislation is not a "bill of attainder" if it is non-punitive. Revealing foreign interests, conflicts of interests and fostering a greater sense of public accountability is not punitive.

Arguments grounded in a right to privacy, protected by the United States 14th Amendment, are likely to be rejected by both liberal and conservative Supreme Court jurists. Unlike Canada, the United States Supreme Court contains judges who feel that the constitution should be interpreted based on what the founding father's intended the document to mean (in Canada, this approach was rejected in Edwards v Canada (AG), the case that declared that women were persons). These judges are called "originalists." United States originalists judges should have no problem with the proposed legislation because the Revenue Act of 1924 required the IRS to make a public list including an individual's name, address and amount of income tax paid. In 1983, the federal court of appeal stated that laws requiring public officials to disclose their sources of income, assets and liabilities do not violate the constitutional right to privacy.

The last method of challenging the bill would be based on a constitutional prohibition on passing retroactive laws (laws that punish people for conduct in the past). However, while this bill would require publishing 5 years of past tax returns, it only would apply to individuals currently holding office on the date of enactment and in the future. Once again, the bill is further insulated by the fact that it does not punish an individual.

While the bill was ultimately shut down by Governor Chris Christie, one of the first people to endorse Trump's presidential campaign, it was due to political, not legal obstacles. While the New York State Assembly is overwhelming Democratic, the State Senate has a Republican majority. Many Senate Republicans were elected in districts that overwhelming voted for Hillary Clinton. With the Russian and Comey scandals causing many key Republicans to start turning away from the President and the President's approval rating hovering around 39% (with a 55% disapproval rate), this political barrier may be weakening.

While there are no clear legal challenges that could be brought to this bill as well as weakening political barriers, lawmakers may fear passing this bill due to the President's volatile and emotion-based reactions. On paper, Trump could still direct the federal IRS to stop cooperating with the State on tax evasion efforts as well as deny funding to key State institutions. However, as American's have seen over the past 100 days, President Trump makes a lot of public threats but very rarely follows through.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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