Presidential Transparency: Beyond Tax Returns
What would the president’s tax returns show about his financial ties to foreign powers or other ethical issues? Is there a better way than disclosure of tax returns to get at such information? New Brennan Center analysis explores these questions.
What would the president’s tax returns show about his financial ties to foreign powers or other ethical issues? Is there a better way than disclosure of tax returns to get at such information? The paper below explores these questions. [Download the Report]
Critics of President Donald J. Trump frequently imply that disclosure of his tax returns might reveal not only how much he pays in taxes and gives to charity, but other bombshells damaging enough to bring down his presidency. In April, thousands of people in over 150 cities joined nationwide protests demanding that he release his returns. The president’s defenders, on the other hand, argue that the returns are useless or worse. His son Donald, Jr. has said they would be a “distraction,” providing nothing more than fodder for opponents to harass him.The president himself has said “[y]ou will learn more about Donald Trump by going down to the Federal Elections [sic]” Commission to view his completed financial disclosure form than from his tax returns.
Whom should we believe? The urgency of this question grows as it becomes clearer that much of the president’s conduct in office could impact his businesses, from his tax reform proposal to foreign relations not only with Russia (the focus of a wide-ranging inquiry in connection to its interference in the 2016 election), but other countries like China and the Philippines.This presents the potential for numerous conflicts of interest, with no effective legal restraint since the president is exempt from federal conflict of interest rules (although every president for the last 50 years has voluntarily adhered to them). A network of holdings as vast and opaque as the one Mr. Trump controls also presents opportunities for outright bribery and influence peddling on a vast scale, all under the guise of ordinary commercial transactions (that just happen to be exceptionally favorable to the president and his companies) — a dynamic we have seen play out in other countries where unscrupulous corporate magnates reached the height of political power.
There is no way to know for sure how much light the president’s personal tax returns would shed on such risks without actually seeing them. However, the likelihood is that they contain more relevant information than the president and his defenders will admit — but significantly less than his critics might hope. Tax returns are filed for the purpose of paying taxes, not to provide financial disclosure. Even for a filer with nothing to hide, key information related to sources of income, debts, and the identities of key business partners is likely to be missing. For those who hope to obscure such information on their personal returns, there are many ways of legally doing so.
To gain a fuller picture of how the president’s financial affairs could intersect with his official duties, it would be necessary to see not only his personal returns, but also those filed by his various companies, a point that is often missed in public debates. And even then, a great deal of relevant information would most likely still be missing — including the original sources for much of his income and the names of many creditors to whom he owes money.
Over the long term, and leaving the specific case of Donald Trump aside, instead of fighting about the release of tax returns, advocates of transparency for the president and other senior federal officials and candidates would do better to push for strengthening federal ethics law to require that more pertinent information be included in the ethics disclosures that these individuals are already required to make. In particular, the law ought to require disclosure of information not only about the filer’s personal assets, income, and debts, but also (with certain exceptions) the assets, income, debts, and co-owners of any closely-held (not publicly-traded) entity in which the filer has a significant interest. At the same time, in order to achieve a better regulatory balance, monetary thresholds for the disclosure of particular assets and income ought to be significantly raised.
As the future Justice Brandeis pointed out more than a century ago, when it comes to the behavior of those in power, “sunlight” is often “the best of disinfectants.” This is true no matter who is in the Oval Office. Improved financial disclosure will not only help address the many legitimate concerns about President Trump, but provide a lasting safeguard for the integrity of our government. It is a priority everyone should be able to support.
What We Already Know
At the outset, it must be acknowledged that we already have some information about the president’s business empire — though nothing close to a complete picture.
The Ethics in Government Act of 1978 (EIGA) requires federal candidates and senior government officials to file annual disclosure reports (Form 278e) listing, among other things, their own and their immediate families’ assets valued above $1000, sources of income above $200, and debts above $10,000 (excluding a mortgage on a personal home). President Trump’s most recent report, made public in June 2017, runs 98 pages long and lists his personal assets, certain debts, income sources and positions held in various LLCs, partnerships, and domestic and foreign corporations.
The report contains some useful information (perhaps including some the president may not have been technically obligated to provide), but the picture it presents of his extensive holdings is far from complete. For example, it lists the president’s various companies, where they are registered, and his percentage interest, but there is no requirement that the president name his business partners, or give a precise value for each holding and source of income. The form also provides only cursory details about each company’s own assets, and neither EIGA nor regulations issued by the Office of Government Ethics (OGE) require it to include any information about ultimate sources of revenue (e.g., the names of customers, lessees, licensees, clients, etc.) or debts, including the identities of creditors or other investors — even where Mr. Trump is the sole owner of an entity such that it is essentially his alter-ego. As experts have noted, the form also need not include companies that no longer have a positive value because losses exceed assets, even though such companies could still generate significant revenues or (perhaps more likely) owe significant debts. And of course there is no information about what Mr. Trump paid in taxes — to either the U.S. or foreign governments.
To be sure, bits and pieces of information can be found elsewhere. But even these snippets are often less valuable than one might think. For example, a recent report by USA Today found that roughly 70 percent of those who bought Trump properties in publicly-recorded real estate transactions since Mr. Trump became the Republican nominee used LLCs to shield their identities (compared to four percent in the preceding two years). In such cases, the public learns little more relevant information than if there had been no disclosure at all.
What President Trump’s Personal Tax Returns Might Show
But would the president’s personal tax returns tell us anything different? And more specifically, would they reveal more about potential conflicts or other ethical issues he has as President of the United States?
The answer to both questions is almost certainly yes, though how much the tax returns would tell us is far less clear.
Certainly, upon viewing his personal tax returns — including the standard form 1040 and accompanying schedules — the public would learn at least two things: how much President Trump is paying and has paid in federal taxes, and (from Schedule A) how much he has claimed in itemized deductions for things like charitable giving. This information can be highly relevant to determining the president’s ethical fitness. For instance, Richard Nixon’s tax returns, which he released in the midst of the Watergate scandal, showed that the president had paid less than $1000 in taxes on an income of more than $200,000 in both 1970 and 1971, thanks mostly to highly dubious charitable deductions. The revelations damaged Nixon’s credibility, making it harder for him to cover up the other wrongdoing that came to light during Watergate.
Mr. Trump’s tax returns might likewise either prove or debunk allegations of legally or ethically questionable conduct. His 1995 return obtained by the New York Times, for instance, reveals that he claimed nearly $916 million in losses that year, which could be carried forward as deductions from taxable income for future years and thus may have enabled Mr. Trump to avoid, or at least reduce, his federal income tax burden for years to come. Like charitable deductions, loss carry-forwards are perfectly legal, but without more detail it is impossible to judge whether Mr. Trump’s particular claim was legitimate.
The president’s only other leaked return, for 2005, indicates that he paid $38 million in federal income taxes on a $150 million income — roughly 25 percent (10 percent less than the top marginal rate of 35 percent for which Mr. Trump would have qualified) — thanks to the more than $17 million he claimed in itemized deductions. But because no schedules were included we cannot tell what those claimed deductions were for.
Apart from such information, Mr. Trump’s federal returns would also reflect where he paid state taxes, which could be a clue as to where he is claiming residency. New York voters, for instance, might care if it turned out the president had eschewed residency in his home state in favor of, say, Florida to avoid New York’s comparatively high tax burden.
In addition, the various assets and sources of income listed in the tax returns could be compared to those listed in Mr. Trump’s ethics disclosures, to verify that the latter did not omit any required information.
Beyond this basic information, there are other important details related to potential conflicts of interest and foreign ties not included on any ethics form that we might learn from the president’s full tax returns — although there is no guarantee.
Additional information on foreign ties. Mr. Trump’s personal tax return could, for example, contain other information about his foreign business dealings not found on his ethics disclosure form.
The president has been especially insistent that he has had “nothing to do with Russia,” notwithstanding contrary claims from one of his sons in 2008, who said that “Russians make up a pretty disproportionate cross section of a lot of our assets.” It is impossible to tell from Mr. Trump’s ethics report which of these statements is true.
The president’s tax returns might provide more information on this front. Various IRS forms that sometimes accompany a personal tax return can require relevant information related to foreign investments and assets — including Form 1116, which requires disclosure of foreign taxes paid (assuming the filer is claiming a credit for them on his U.S. return); Forms 8865, 8858, and 5471, which require disclosure of certain information about foreign partnerships and corporations, including gross receipts, expenses, debts, total profits, and the names of certain other U.S. partners or shareholders (but not foreign ones); Form 8938, which requires a list of foreign financial assets, including foreign bank accounts and their maximum values; Form 3520, which requires disclosure of certain foreign gifts; and Form 8621, which requires disclosure of foreign dividends and other investment income. All of this information would make it easier to scrutinize Mr. Trump’s foreign business interests — although, as noted below — it might be included on the tax returns of his various companies rather than on his personal return.
Information about negative-valued entities. Tax returns are also much more likely than ethics reports to reflect information about negative-valued entities (for which losses exceed assets), which may generate tax-deductible losses. With only the president’s ethics report, there is no way to tell if such entities even exist.
Additional information about sole proprietorships. In addition, where the president is the sole member or owner of a limited liability corporation, such that it is a sole proprietorship whose corporate structure is “disregarded” for tax purposes (i.e. the IRS treats its income as the personal income of the owner), some additional information likely would appear on Schedule C of his personal return — the same schedule used by millions of self-employed Americans to report their business income. That information would include the entity’s gross receipts, a breakdown of expenses by type, and whether the owner — Mr. Trump —“materially participated” in its business.
Schedule C does not usually show the names of a business’s individual customers, clients, or other sources of revenue, or the names of creditors. But whether Mr. Trump claims to have “materially participated” in a business (necessary to claim certain deductions) on his returns for the years he is in office could be a clue into how involved he remains with the operation of his companies while serving as president. The breakdown of expenses also contains useful line-items — including line 16 for interest paid, which could provide clues as to how much the president owes to his various creditors.
Information on the personal impact of tax reform. The president’s tax returns might also show with more precision what aspects of his tax plan would benefit him personally. Certain basic information is already apparent — like the fact that he would benefit significantly from his proposals to lower the tax rate for income derived from “pass-through” entities (whose taxable income is attributed to their owners), repeal the Alternative Minimum Tax, and eliminate the 3.8 percent net investment income tax used to pay for the Affordable Care Act. There are probably a host of other, lesser-known provisions that could impact the president’s bottom line, but without his tax returns we cannot know for sure.
Precise numbers. Finally, if nothing else, unlike ethics forms — which are required to provide values only in broad ranges, like “$5,000,001-$25,000,000” up to a maximum value of $50,000,000 — tax returns must give precise figures. So while the president’s sources of personal income — including from companies he owns — must be reported in both places, a sharp increase in income from a particular source might only be reflected in the latter.
To take just one example, the president’s latest ethics disclosure lists his income from a company called “Trump Tower Commercial, LLC,” which appears to collect rent from Trump Tower’s commercial tenants, simply as “over $5,000,000.” One of the largest commercial tenants in Trump Tower is a Chinese state bank whose lease will be up for renegotiation in October 2019 –dubbed “one of the clearest financial connections between [President Trump] and a foreign government.” Yet even if the bank agreed to pay a substantially higher rent than it does now, which would raise a host of ethics concerns about payments to the Commander-in-Chief from one of America’s top strategic rivals, there would be no way to tell. Tax returns could shed more light on this issue.
Mr. Trump’s tax returns might also reflect extra income he is earning from the various properties he has been accused of trying to promote as president.
Interestingly, although not required, Mr. Trump’s ethics report actually does give a precise figure for one of his most controversial sources of income — Mar-a-Lago, his private Palm Beach club (a/k/a the “Winter White House”), whose membership fee he doubled after winning the 2016 election and which has since become a prime venue for those seeking access to top government officials. The president’s June 2017 ethics report indicates that he earned $7.4 million more in income from the club over the preceding year (including his first months in office) than was reflected on his last report, filed in May 2016. However, there is nothing to stop the broad ranges permitted on the form from being used to mask future increases (though it should be noted that, even on a tax return, Mar-a-Lago profits — or those from any recognizable company — could easily be masked by funneling them through another entity with a less obvious name).
What the Tax Returns of the President’s Companies Might Show
In considering all of this information, it is important to remember that U.S. tax law requires even closely-held business entities with a small number of owners to file their own returns (unless they are sole proprietorships that are disregarded for tax purposes). Such entities are the repositories for most of Mr. Trump’s wealth — and his debts— making it entirely possible that much of the information discussed above would appear on their returns, not his.
Such entities might, for instance, hold most of the president’s foreign assets, meaning that it would be their returns, not his, that would reflect information about his foreign business dealings. The same is true for negative-valued entities, which could be subsidiaries of other Trump companies rather than held by the president personally.
Tax returns for the president’s companies could also reveal additional ways that he could be impacted by tax code changes. His companies probably owe most of his business debt, for example. Observers have noted that the president’s tax proposals make no mention of House Republicans’ proposal to eliminate the tax deduction for interest payments on such debt — a huge subsidy for highly-leveraged industries like real estate development that will cost the government roughly $1.5 trillion over the next decade. How valuable this omission would be to Mr. Trump personally is impossible to know without seeing the tax returns of his various companies as well as his own.
None of this means that the president’s personal tax returns are irrelevant. Ultimately, though, it makes little sense to call for them but not the returns of his companies. Providing both is the minimum amount of transparency that should be expected if the president is going to retain ownership and effective control of his vast business empire while in office.
What Likely Cannot be Found on Any Tax Return
The issue is not, however, just that some information people think would be on the president’s personal tax return is actually reflected on those of his companies. The bigger problem is that there is probably a great deal of highly-relevant information about his business interests that simply would not show up on any tax document.
In particular, Mr. Trump’s returns likely would not shed much light in three key areas:
Original sources of revenue and debts. Most importantly, neither Mr. Trump’s individual tax return nor those of his companies are likely to tell us the specific sources from which his various businesses derive their revenues. This is because revenues are usually aggregated, and reported by type, not source — so the names of particular buyers, paying club members, lessees, licensees, or customers need not be provided.
The same is true for debts. While many types of business interest are tax-deductible, and thus the interest payments would be reflected on a return, payments to different creditors can be aggregated together, and the creditors themselves need not be named. So if, for example, a Trump-owned company had made interest payments to a Russian state bank, neither the name of the bank nor even the specific amounts paid would necessarily appear on the company’s return.
In short, no compilation of tax returns is likely to provide a complete picture of who is paying Mr. Trump and to whom he owes money, precisely the sort of financial relationships that are likely to give rise to conflicts of interest or other ethical violations.
Business partners. It is also unlikely that Mr. Trump’s tax returns would reveal information about many of his most concerning business partners. To be sure, the tax returns of his U.S. entities should include the names of the other owners — but the co-owners listed might just be vaguely-named holding corporations that cannot be connected to any readily-identifiable individual or company; there is no requirement that a tax return disclose who is behind such entities. Certain U.S. partners in foreign ventures also need to be disclosed, but with the same caveat. Most importantly, foreign partners in non-U.S. ventures — who present some of the most troubling potential conflicts — likely are not disclosed on any U.S. tax document.
Extent of personal wealth. Finally, the president’s tax returns and/or those of his various entities might reveal snippets of detail — like information on the depreciation of certain assets or the contents of various accounts — but they are unlikely to show the full extent of his personal wealth or where particular assets are located. Significant increases in a leader’s personal wealth during his or her time in office are a classic sign that political power has been used for personal self-enrichment, but tax returns are not the place to find that information.
Recommendations for More Comprehensive Disclosure
So where does all of this leave us?
Legislation is already pending before Congress that would require disclosure of the president’s personal tax returns, as well as those of all future major party nominees for president. This is a sound proposal, and would simply codify what every one of Mr. Trump’s predecessors going back 40 years has done voluntarily.
As this paper has explained, however, the president’s personal returns are not likely to contain all, or even most, of the details necessary to determine the full extent of his potential conflicts of interest or other ethical issues. And there would still be a great deal of information missing even if the legislation were amended to also require disclosure of the tax returns of his businesses.
At bottom, tax returns are simply not an ideal mechanism for transparency. They were never intended for such a purpose, and by their nature are likely to omit key information that the public has a legitimate interest in knowing, while including other information (about, say, alimony payments) that even a president should be allowed to keep private.
Rather than requiring the release of thousands of pages of returns, a better solution — as Bush Administration ethics lawyer Richard Painter suggested in recent congressional testimony — would be to amend the Ethics in Government Act to strengthen existing ethics disclosure requirements.
To build off Painter’s suggestion, we propose that the Act be amended to require officials who already have a public filing obligation, including the president and vice president (and candidates for those offices), to also:
- Disclose the assets, ultimate sources of income, and liabilities (including the names of creditors) of any non-publicly-traded entity — whether foreign or domestic — in which the filer has a significant direct or indirect interest (with a specific monetary threshold to be set in consultation with OGE, as discussed below);
- Disclose, for each of these entities, the names of any co-members or owners, and the individuals or entities that ultimately control them (where applicable);
- Provide more precise estimates for the value of particular assets, sources of income, and debts, rather than the broad ranges currently provided; and
- Sell any asset with respect to which the filer cannot or does not wish to provide the information described above.
We recognize that these new disclosure requirements might be burdensome for some filers, or even impossible to the extent that their business partners do not consent to public disclosure. Given the unique power vested in the president over virtually every aspect of our economy, divestment would be necessary in such circumstances — as much for a President Bloomberg or Zuckerberg as for President Trump. That, after all, is what every other president for the last 50 years (even before it became customary to release tax returns) has done.
For other filers, OGE should be given authority to permit confidential rather than public disclosure with respect to a particular asset, upon an application from the filer. OGE would need to identify by regulation grounds for confidential disclosure, which might include, for instance, a finding that the asset in question was unlikely to give rise to an actual conflict of interest or other ethics violation, and that public disclosure was likely to materially harm the business in question. OGE’s determinations with respect to such applications should be made public and reviewable in court.
Along with these changes, it makes sense to significantly raise EIGA’s asset and income disclosure thresholds, and index them to inflation. As with federal campaign contribution disclosure requirements passed in the 1970s, raising these thresholds (currently $200 for sources of income and $1000 for assets) would lessen the regulatory burden on filers without depriving the public or ethics regulators of significant useful information. The best approach would be to determine revised thresholds for all of EIGA’s disclosure provisions in consultation with OGE, which is best positioned to opine on the monetary thresholds beyond which it generally considers a potential conflict to be material.
These changes would be consistent with the underlying transparency goals of federal ethics law, and would provide a much-needed backstop for other ethics safeguards. While not erasing otherwise unaddressed ethical problems, more transparency would at least help mitigate the resulting harms by allowing the public to act as a check on self-interested government decision-making. They deserve broad support.