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Can Trump Release His Tax Returns? Yes. Should He? No.

Mitt Romney’s recent call for Donald Trump to release his tax returns and any potential “bombshell” within (the irony of which we won’t get into here) led to an interesting claim from the Republican frontrunner—he can’t because he’s being audited. Indeed, Trump went on to claim at the recent Republican debate that:

“I want to [release them], except for many years, I’ve been audited every year… Twelve years, or something like that. Every year they audit me, audit me, audit me. Nobody gets audited—I have friends that are very wealthy people. They never get audited. I get audited every year. I will absolutely give my return, but I’m being audited now for two or three years, so I can’t do it until the audit is finished, obviously. And I think people would understand that.”

Trump’s claims have created a bit of controversy as to how the publication of his tax returns should be handled. On the one hand, The Washington Post consulted Steven Goldburd, a tax attorney, who agreed with Trump’s approach, encouraging readers to “Think of an audit as an investigation, an on-going investigation,” before stressing “Any person that has legal counsel, their legal counsel will say, ‘If you’re under investigation, you should not be talking to the media, you should not be talking to anyone other than your legal counsel or through your legal counsel.’” And, in case his message wasn't clear enough, if he were Trump's attorney, Goldburd “probably would not allow him to release anything.”

On the other hand, Politico’s expert, Stanford Law professor Joseph Bankman, disagrees. “I’m not sure why that prevents him from releasing his returns. They are his to release,” Bankman wonders. The article then goes on to point out that while tax returns are considered confidential documents, and the IRS is barred from releasing them, there’s no legal reason why Trump can’t publicly release his own forms. Additionally, even if the audit were somehow stopping Trump from releasing his documents, the piece wonders why Trump’s past returns, which aren’t subject to the audit, haven’t been released yet.

Both experts agree that Trump’s claim about being audited every year is entirely within the realm of possibility. High-net-worth individuals are often targeted for audit both due to the increased potential for monetary return on the part of the IRS (more bang for their audit buck) and because they’re generally higher profile than the average citizen. Additionally, it’s important to note that HNW clients involved in cutting edge or complex tax planning may contact the IRS to ask for an opinion on a plan and whether a certain technique or combination of techniques is kosher. Thus, it’s entirely possible that Trump effectively asked for one or more of those audits, and it’s equally important to note that there’s nothing inherently wrong with his doing so if that’s the case.

So, which expert is right? Both. Bankman is technically correct (as we’d expect from a law professor) that there’s no law preventing Trump from releasing his tax returns simply because he’s under audit. On the flip side, savvy readers will note that Goldburd says “shouldn’t” a great deal—but not “can’t.” He’s implicitly admitting that Trump technically can release his returns, he just won’t because it’s not worth the risk. From this angle, Goldburd’s also correct, as no legal counsel worth his salt would recommend making public any additional information unnecessarily during an ongoing investigation, particularly if it’s potentially unflattering. Indeed, I can’t imagine many circumstances where it’s a good idea for anyone to make their tax information public, period. Then again, a presidential race is certainly a unique circumstance.

So, I’m left torn. While the attorney in me sides with Goldburd in offering solid legal counsel, the citizen in me supports Bankman’s assertion that an audit isn’t a valid excuse, particularly in a presidential election. Where do you fall? Feel free to weigh in in the comments section below.

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