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How Donald Trump gets away with it: The president v. America’s tax police

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David Cay Johnston

David Cay Johnston

To understand how Donald Trump got away with paying little to no income taxes for many years, even after he forged at least one income tax return, it helps to first understand the risks that any wealthy business owner faces if they cheat. It also helps to know that about a million rich Americans didn’t even file income tax returns during President Obama’s last years in office and that the tax police lack the resources to pursue them and make them pay the estimated $47.5 billion they owe.

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There’s no question that Trump is a tax cheat because he has done it again and again. He cheated on New York City sales taxes in 1983, for which Mayor Ed Koch said he should have served 15 days in jail. He went to extreme, even farcical lengths to evade $3 million of payments he owed in lieu of taxes to New York City.

Twice Trump has been tried for civil tax fraud. He lost both times, a story I broke four years ago but you may not know about because America’s major news organizations have not reported except for one passing mention in the wedding announcement section of The New York Times. Two years ago, however, that newspaper did an exhaustive report showing years of calculated gift tax cheating by two generations of Trumps. In recent weeks income tax information that newspaper reported on revealed many badges of tax fraud.

Under President Obama in 2015, America’s richest households were 270 times more likely to be audited than under Trump

So why hasn’t Donald Trump been brought to justice? After all, everyday radio and television commercials tell us of the power the IRS has to garnish our wages, seize our bank accounts and even take our homes. Surely brazen tax cheats live in fear of arrest and losing their mansions, jets, and yachts, right?

Let’s start with the Trump administration’s own figures on the risks that tax cheating will merely be detected. The eye-popping facts, reported here for the first time concern the 23,400 richest American households. Their average income in 2018 was almost $30 million each.

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The Trump administration audited 7 of them. You read that right — seven. That’s an audit rate of 0.03%.

If American police detected murders at the same rate it would mean that they would become aware of just five of the 16,214 reported homicides in 2018. Of course, not everyone is a tax cheat, but audits are about detecting taxes due, whether through error or intent.

Auditing The Working Poor

Now let’s compare the audits of people in Trump’s income class with the working poor, defined as households with incomes under $25,000. They were the subject of almost a third of all IRS audits even though their average income was just $12,600.

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The audit rate for poor families is 0.28%. That’s nine times the audit rate for the richest Americans.

This is a dramatic shift from the recent past. Under President Obama in 2015, America’s richest households were 270 times more likely to be audited than under Trump, my analysis of IRS Data Book tables data shows. That year 8.16% of these households had their tax returns audited, not 0.03%.

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These vast disparities are just one aspect of a many-sided story about the myth of the all-powerful IRS and how a particular class of rich Americans, a class that includes Trump, almost always wins when they play what in tax world is called “audit roulette.”

The cold hard truth is that the richest Americans today face a teensy-weensy risk of being detected if they cheat. The hardest tax cheating to detect involves people in a particular class. It is a class with privileges Donald Trump lobbied for and testified about to Congress. The taxpayers who are by far the hardest to identify as cheats share these characteristics that the IRS is ill-equipped to address:

  • Own their enterprises lock, stock and barrel, giving them total control.
  • File tax returns that appear on the surface to be accurate, even clean as a whistle.
  • Make use of hundreds and in some cases thousands of separate corporations and partnerships in many different locations, a tax evasion helper that will be explained later in this series.
  • Operate domestically and abroad where tax treaties, rules on delaying reporting income on tax returns, and mismatches between rules of different governments create opportunities to hide money.
  • Own commercial real estate because the gains from selling property are not automatically reported to the IRS, unlike wages and dividends.

Trump fits those conditions to a T.  Later in this series, we’ll explore in this series just how he has always benefitted from the ways that our Congress has instructed the tax police to operate.

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Presidential Powers

Now add to this Trump’s powers as president. He appoints the Treasury Secretary and the IRS commissioner, who had been a Beverly Hills specialist in helping suspected tax cheats avoid indictment. Trump also recommends how much money the IRS gets and how it will be allocated among various functions such as processing refunds and collecting unpaid taxes. All this and more means that Trump exercises enormous power and influence over which potential tax cheats, if any, will be found. Because he also appoints America’s attorney general, Trump also influences which suspected tax cheats will be prosecuted.

In addition to all this, Trump’s administration is violating an anti-corruption law enacted 96 years ago after the Teapot Dome scandal. That law gives certain people in Congress the same right he has to inspect any income tax return. At least three staffers on the Congressional Joint Committee on Taxation work at the IRS just to inspect tax returns, especially those seeking individuals refunds of $2 million or more, for badges of fraud. Trump got a nearly $73 million refund that he recently confirmed the IRS wants back.

Trump refuses to allow the chairman of the House Ways and Means Committee, which writes our tax laws, to inspect his tax returns. It is the only known case of a tax return being withheld by any president since 1924 when Calvin Coolidge was president. That sentence is qualified only because the IRS is stalling on DCReport’s Freedom of Information Act request for a single number – how many times has the IRS refused or declined to turn over a tax return request in writing by the appropriate lawmakers and staff?

Who Gets Audited

That 0.03% audit rate for America’s richest families is misleading. It overstates the risks to people in Trump’s situation.

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Many in that highest income group have very limited opportunities to cheat. About a sixth of these rich Americans are CEOs of publicly traded companies or otherwise employed at huge salaries. Their pay is independently reported to the IRS. This means that they are more like Joe and Joan Six Pack whose taxes are withheld before they get paid.

Opportunities for workers to cheat almost nonexistent, even for those making more than $50 million in salary and bonus as more than 200 workers have each year under Trump.

We cite these facts to give you a lens through which to focus as tjis DCReport series examines the state of Trump’s taxes and the capacity of the Internal Revenue Service, our national tax police department, to enforce the tax laws.

DCReport’s investigation into how Trump and others like him enjoy robust opportunities to cheat on their taxes with little risk of detection shows how for decades Congress has handcuffed our tax police. It’s as if your local mayor and city council told their police officers to focus on tricycle thefts, not violent crimes, and wouldn’t pay for testing equipment and chemicals in the crime lab.

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We relied in part on a database maintained by the TRAC, the Transactional Records Access Clearinghouse at Syracuse University. DCReport donors generously contributed money to purchase access to that database and to pay a Rochester Institute of Technology student to organize the data for analysis. Much of the data TRAC has was extracted from our government only after litigation over the public’s right to know what our government is doing.

Tax Prosecutions Vanishing

From documents and interviews with tax officials, tax defense lawyers, and accountants we found that our government operates a system of tax law enforcement with these features:

  • Tax prosecution, never a major government activity and generally slipping for decades, collapsed under Trump.
  • In 2016, the last Obama year, the IRS referred 2,744 tax cases for prosecution. Since Oct. 1, 2019, the IRS has referred just 231 cases.
  • Justice rejected 162 of those cases, or 70%, for “insufficient evidence,” an extraordinary and hard to believe justification since on average each case involved more than a year of detective work.
  • Justice rejected an additional 28 cases because prosecuting suspected tax criminals isn’t a “national priority.”
  • Justice Department’s own data shows it is pursuing just 29 new cases.
  • More than half of IRS criminal cases in the last decade were about illicit proceeds from narcotics trafficking, money laundering, and other criminal activity, not tax cheating by people who underreport their income from lawful activities or overstate their deductions.
  • Last year Justice Department prosecutors obtained just 530 guilty pleas and convictions after trial, making the odds of an American adult being found guilty of a federal tax crime about one in 473,000.
  • The public never heard about most of those cases because the Justice Department failed to publicize them.
  • Almost 900,000 high-income Americans didn’t even file a tax return in the last three years of the Obama administration.
  • Virtually no effort is being made to collect the estimated $47.5 billion these prosperous-to-rich Americans owe. An Inspector General report says the IRS has already dropped 42,600 cases and it is unlikely that any of the others will be pursued.

Defunding America’s Tax Police

 The reality here is that Congress has defunded America’s tax police. The IRS in 2018 had less than half the resources it did, relative to the size of the economy, when Ronald Reagan was president in 1988.

Over several decades, as Grover Norquist persuaded Republicans to sign ironclad pledges to never raise taxes, these same officeholders have worked to make sure the IRS doesn’t have the tools or staff to make sure people and companies pay what the law says they owe. Trump personally lobbied for one key change creating an entitlement program for real estate investors that lets them live tax-free if they are rich enough and follow the rules, making his own tax behavior all the more curious.

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The beneficiaries of this throttling of the tax police budget and hobbling its operations have been the thin and increasingly rich slice of Americans at the top, especially people who like Trump exert total control of their business affairs.

Republicans persuaded enough Democrats to go along in handcuffing our tax police through laws, some of them based on bogus testimony by people who said they were victims of abusive IRS tactics. By law, the IRS could not respond to the Senate testimony. However, subsequent investigations by The Wall Street Journal, Tax Notes Magazine, The Virginian-Pilot, and by me when I was the tax reporter for The New York Times showed the hearings were a sham from start to finish.

In response to the 1997 and 1998 Senate Finance Committee hearings chaired by the late Sen. Willian Roth of Delaware, and other hearings Congress imposed all sorts of restrictions on IRS audits. Here are three telling examples that we will explore later in this series:

  1. IRS auditors who notice that a taxpayer reports income of under $100,000 but has mansions, fine art and more cannot use that to begin a “lifestyle audit.” One man who did this was got caught only because a mistress, furious that he didn’t keep a promise to buy her a condo, ratted him out to the IRS.
  2. Corporations must be told in advance what issues will be examined. If auditors find along the way evidence of tax owed for other reasons they cannot expand the audit unless they uncover clear evidence of criminality.
  3. While Congress authorizes what look to be major cash awards to whistleblowers who report tax cheating the program has added less than $1 to every $5,000 in taxes Uncle Sam collects and it takes more than a decade on average to pay these awards.

The costs of these favor-the-rich policies even when they cheat are borne by the 99% through tax burdens that could otherwise be eased, through reductions in government spending for their benefit, and in added federal debt.

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Institutional Corruption

The Framers of our Constitution were deeply concerned with corruption, but not the way they think of it today. They were well aware of the personal venality that permeates the news from supermarket tabloids to the network news programs. But the Framers focused on how to ensure against institutional corruption ruining our democracy and our society, as law professor Zephyr Teachout explained in plain English in her book Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United.

Congress has pretty much imposed on the IRS the same institutionally corrupt approach that New Jersey casino regulators employed when Trump dominated Atlantic City gambling.

New Jersey officials created the impression of zealous law enforcement by noisily going after small fry and others who lack the resources to fight back, by announcing actions that raise questions about the behavior of casino owners in dealings with mobsters, cocaine traffickers, and money launderers while working hard to avoid making inquiries that would expose wrongdoing by those at the top. My first book, Temples of Chance, revealed this institutionally corrupt strategy this with many examples like cheating novice roulette players at one Trump casino, as well as favors for gamblers connected to the Yakuza criminal gangs in Japan and the Medellín drug cartel. Casinos owned by Trump and others even extended credit, comped suites, provided liquor, and sent limousines to empty the trust accounts of rich child gamblers as young as 12.

Actually, Congress has gone much further to hobble America’s tax police.

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The IRS is so short-staffed that it cannot even send refunds it acknowledges are owed to some people from their 2017 tax returns. Instead of a refund check, some beleaguered taxpayers have shown me form letter after form letter directing them to not ask about their refund for yet another 60 days. An IRS that is not even staffed up to refund people’s overpayments is going to have a much harder time enforcing the tax laws when it comes to sophisticated tax cheating.

E.R. Bradalski analyzed the TRAC data used in this report.

Next: The suspected tax cheats our Justice Department does pursue and why it goes after them.

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