An advocacy group told the D.C. Circuit Thursday (Sept. 13) that it has a right to see President Trump’s tax returns, and one judge seemed skeptical of the IRS’s refusal to even process the group’s request.
The Electronic Privacy Information Center, a nonprofit group that litigates on a wide range of privacy issues and government transparency issues, sued the Internal Revenue Service last year under the Freedom of Information Act, seeking to obtain Trump’s tax returns dating back to 2010. EPIC lost round one in the district court. A D.C. Circuit panel consisting of Judges Henderson, Millett, and Edwards heard oral argument in the group’s appeal on Thursday.
The case, EPIC v. IRS, centers on a section of the tax code that was enacted just two years after the Watergate scandal. It aims to maintain the confidentiality of tax records but creates several narrow exceptions that allow the IRS to disclose individual tax records in certain circumstances.
One exception allows for public release of tax returns “to correct misstatements of fact.” EPIC argues that exception applies because releasing Trump’s returns would clarify numerous contradictory statements by Trump, his family members, and his attorneys about Trump’s financial ties to Russia.
But when EPIC filed a FOIA request seeking the tax returns, the IRS refused to process the request. The agency cited a Treasury Department regulation requiring that, when a third party seeks to obtain a taxpayer’s records, the third party must show that the taxpayer has consented to the disclosure before the IRS will even begin searching for records. Trump, of course, has not consented to the disclosure and has famously broken with the tradition of presidential candidates voluntarily releasing their tax returns.
A key issue before the court is who has the burden at this stage in the case: Does EPIC, as the requester, have the burden of showing that the information it seeks is eligible for release before the IRS can process the FOIA request? Or does FOIA establish a presumptive right to information, placing the burden on the IRS to show whether particular records can be withheld?
Department of Justice attorney Michael Murray argued on behalf of the IRS. He said that EPIC had not yet shown that it had a right to see the president’s tax records. Millett seemed skeptical, pelting Murray with questions his entire time at the podium. The other two judges on the panel did not ask a single question.
Here’s the exchange when Millett asked Murray about who has the burden to show whether disclosure is warranted:
Murray also said that, if the court allowed this FOIA suit to go forward, the floodgates would open to suits seeking tax records from “all sorts of public figures.”
EPIC attorney John Davisson’s response was that requests under the relevant part of the tax code are rare and that there has never been a FOIA suit in this context.
In an interview with Circuit Breaker after the argument, Davisson said EPIC was optimistic about the court’s decision. He said a win for EPIC would be a remand that required the IRS to process the group’s request and make a final agency determination on whether to withhold Trump’s records. If the agency’s determination was to withhold them, that decision could then be challenged once more in the courtroom.
The IRS Press Office did not respond to Circuit Breaker’s request for comment.
