President-elect Donald Trump will soon be able to appoint a new director of the agency auditing his taxes, a potential political minefield after his writeoffs and his refusal to release his returns were repeatedly questioned in the campaign.
The president is barred from directing how the IRS treats specific taxpayers, but lawyers say there’s nothing to stop Trump from appointing an IRS chief who will go easy on him while scrutinizing his political enemies.
“There is precious little statutorily that prohibits that,” said Caplin & Drysdale tax lawyer Chris Rizek, who served in the Treasury Department’s Office of Legislative Counsel under former president Clinton.
Trump could have the opportunity to put his own IRS chief into place quickly, even though the IRS commissioner serves a fixed five-year term to shield the agency from presidential politics. Current Commissioner John Koskinen, whose term ends next November, is facing potential impeachment in the House over his handling of investigations, and he could come under pressure to resign before Trump takes office. House Freedom Caucus Chairman Jim Jordan reiterated his call for impeachment this month, and lobbyists expect Trump to give Koskinen the boot to throw conservatives a bone.
It’s mostly political norms that insulate the IRS from the White House: The taint of the years when Richard Nixon tried to get the agency to harass his enemies has cast a long shadow. But Trump suggested on the campaign trail that he would pursue investigations of his opponent, Hillary Clinton, and the IRS is alreadythought to be examining the Clinton Foundation.
There is a law on the books expressly prohibiting the president and his staff from asking the IRS to audit or stop an audit of a given taxpayer. But there are almost certainly ways around that, according to David Herzig, a law professor at Valparaiso University.
“For him to say, ‘I’m going to audit the Clinton Foundation,’ that theoretically could violate” the statute, Herzig said. “But if he said ‘I’m only going to hire an IRS commissioner that’s going to follow my rules of not auditing presidents and auditing certain foundations with donations from foreign donors,’ I’m not sure that does.”
Trump spokeswoman Hope Hicks did not respond to a request for comment.
“The real challenge, and I think this is the challenge of any new administration when people are not really familiar with how it all works, is that the relationship with the IRS and the White House is sensitive,” said former Senate Finance Committee tax counsel Dean Zerbe, now national managing director of Alliantgroup, a firm that specializes in helping clients land tax credits.
“It’s important to have someone that can keep them on the straight and narrow, to realize the IRS is different from calling up the Coast Guard. You have to be mindful of protections and the history,” Zerbe said.
Meanwhile, Trump will be the first president in recent memory to enter office under audit and the first since Gerald Ford not to have released his returns. The ongoing audit of Trump’s returns will likely take on new importance and sensitivity, tax lawyers said. No one wants to mess up an audit of the president-elect’s returns, which by most accounts are extremely complex given his far-flung commercial ventures.
“Legally, the fact that he’s been elected president has no bearing on the rules,” Rizek said. “But as a practical matter, the agents, the commissioners of the different divisions, the field officers, work for the commissioner, and it’s going to be pretty likely that that audit is going to get higher level review before they make adjustments.”
Trump has said that he would release the returns when he’s no longer under audit.
The IRS also reviews the president’s and vice president’s returns each year, but those audits aren’t required by law, and Trump could stop them.
“They don’t need Congress’ approval to change that,” Herzig said. “It might raise red flags politically. But you could just change it, or you could just not enforce that part about presidential audits.”
The law on tax-return confidentiality gives the president the same protections as anyone else: His returns are not automatically disclosed, although recent presidents and vice presidents — including Vice President-elect Mike Pence — have voluntarily released their returns each year.
If Trump does abandon that custom, though, his returns wouldn’t be entirely exempt from scrutiny outside of the agency — certain congressional committees have the power to request that copies of individual taxpayers’ returns be turned over to a closed session of the committee. State attorneys general could also open audits of Trump, since they don’t defer to the IRS.