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Since the Supreme Court cleared the way for a House committee to receive Trump’s tax returns, can that committee make the information public? Could this allow House Democrats to use this information to create, for example, TV ads?
Or is there some confidentiality agreement that comes with this decision?
If the committee decided to publish the tax returns then yes they could - 26 U.S.C. § 6103(f)(4)(A) states:
Any committee described in paragraph (1) or the Chief of Staff of the Joint Committee on Taxation shall have the authority, acting directly, or by or through such examiners or agents as the chairman of such committee or such chief of staff may designate or appoint, to inspect returns and return information at such time and in such manner as may be determined by such chairman or chief of staff.
Any return or return information obtained by or on behalf of such committee pursuant to the provisions of this subsection may be submitted by the committee to the Senate or the House of Representatives, or to both.
If the Committee on Ways and Means decided to submit the returns to Congress, they would appear in the Congressional Record, which is a public document. This information would then be in the public domain and fair game for use in political ads.
This submission to Congress would not be without precedent; in 2014 the House Ways and Means Committee published the tax information of 51 individuals through the submission of a criminal referral letter.
District Judge Trevor McFadden referred to this precedent in his opinion on the case back in December 2021, when the District Court for the District of Columbia dismissed Trump's attempt to block the committee's request:-
The statute allows three committees, however, to “submit[ ]” the received information to the full House or Senate, placing it in the congressional record. See 26 U.S.C. § 6103(f)(4)(A). But committees hardly ever do so. In fact, a committee has published tax information only once under the current iteration of § 6103(f)—in 2014 after an investigation into the IRS’s discriminatory treatment of conservative organizations. See generally George Yin, Preventing Congressional Violations of Taxpayer Privacy, 69 Tax Lawyer 103, 108–113 (2015). No party has identified a previous request under § 6103(f) for the tax information of a former or sitting President. We are in uncharted territory.
He concluded:
It might not be right or wise to publish the returns, but it is the Chairman’s right to do so. Congress has granted him this extraordinary power, and courts are loath to second guess congressional motives or duly enacted statutes. The Court will not do so here and thus must dismiss this case.
Q: Can House use Trump tax return information for publicity?
No. The applicable code is shown below. The reference to closed executive session means the committee cannot reveal directly or indirectly any information from the tax return.
However, Democrats could gloat over finally receiving the tax returns.
Among the practical reasons is that the tax records may be released to the Chair of Way and Means Committee only for limited purposes. Weaponizing tax returns for political purposes has long been opposed by both parties.
The House Ways and Means Committee argued that it needs the information contained in Trump's tax returns to meaningfully evaluate the IRS's presidential audit program. The Committee says it is considering implementing greater legislative oversight of financial activities conducted by presidents. In particular, it is investigating whether the current IRS audit program is able to adequately enforce the nation's tax laws against a president, like Trump, who has complex business holdings.
Of particular concern, the Committee points to instances when Trump has boasted about "a history of aggressive tax avoidance" and has called IRS audits of his business activities "unfair."
The legal battle at issue in Tuesday's order has been going on for over three years. In 2019, the Chairman of the House Ways and Means Committee, Representative Richard Neal, D-Mass., made a request to the IRS for then-President Trump's tax returns for the years 2013 to 2018. The 2019 request was denied by the Treasury Department, on the grounds that the request was not supported by a legitimate legislative purpose and was "pretextual."
Neal made an updated request, with additional details about the justification for the request, in 2021, this time seeking the 2015 to 2020 tax returns and related information. The Office of Legal Counsel for the Department of Treasury determined that the IRS was, this time, required to comply.
26 U.S. Code § 6103 - Confidentiality and disclosure of returns and return information
(f) Disclosure to Committees of Congress
(1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.
