Elie Mystal
In a 2015 filing with the Federal Election Commission, then-candidate Donald Trump claimed his net worth was $10 billion. The financial press was skeptical of that claim, but nonetheless, Trump listed assets totaling $1.4 billion against $265 million in liabilities.
According to tax documents obtained and reported on by the New York Times, Trump paid only $750 (about R12 800) in federal income tax the year that he won the presidency, partly buoyed by claims of his financial triumphs.
And that was a year when Trump actually paid some income tax. Trump paid $0 in federal income tax in 11 of 18 years, according to the Time's description of the documents.
Now, it is possible to be worth billions of dollars and yet owe the federal government no income tax most of the time. For instance, you could just sit and stare at the gold bullion you've accumulated in your mountain lair and not bother anybody.
But given how much revenue Trump generates - according to the Times report - from his resorts and other businesses, for him to make the math work one of two things has to be true: If these tax documents are real and Trump is telling the truth in them, then they show that the president is a real estate failure of epic proportions.
The alternative would seem to be that he's defrauded the government - and maybe even broken federal tax laws. Trump is unlikely to be comfortable with either possibility.
According to the Times's reporting, Trump's returns indicate that he made at least $434.9 million from his run on NBC's "The Apprentice" and assorted licensing deals. The Times found that he invested much of that money in his personal properties and golf courses.
Unfortunately for the American taxpayer, those investments do not seem to have paid off. Trump listed repeated, massive losses on almost all of his properties. In 2018 he reported $47.4 million in losses.
The best case scenario for these tax records is what lawyers call "tax avoidance." It's not illegal, it's just one of the many ways the rich get richer. Our tax laws allow people to offset their personal taxable income against losses accrued from other ventures.
We do it this way to encourage investment: If you run a mom-and-pop and you pay yourself a salary but your business loses money, it makes sense to offset your personal income against your business failures. Among other things, it helps to keep you in business, even if you're bad at it.
But if the Times's reporting is accurate, Trump claims to be a business failure on a massive scale. According to the report, he initially paid a combined $95 million in federal income tax on his "Apprentice" income, but was able to obtain a $72.9 million dollar tax refund, with interest, once he declared losses.
The Times estimates those losses would have had to reduce his average annual income to $1.4 million a year between 2000 and 2017 to justify the tax refund, meaning Trump would have had to lose hundreds of millions of dollars on bad deals over the years. Trump would appear to have the business acumen of an '80′s hair band that invested one-hit-wonder money developing custom ringtones for beepers.
The charitable way of reading these tax returns is that Trump is as bad at running his business as he is at running the country.
But Trump is also a man who admitted to Bob Woodward that he knew the novel coronavirus was far more serious than he was otherwise letting on - supposedly to avoid a panic. What if he deceived the government on his tax returns to avoid paying taxes?
Tax returns alone do not and cannot give an insight into the truthfulness of the information they contain. The returns themselves cannot tell us if Trump is lying. Michael Cohen, Trump's former longtime lawyer, can.
Cohen testified before Congress that Trump: "inflated his total assets when it served his purposes, such as trying to be listed among the wealthiest people in Forbes, and deflated his assets to reduce his real estate taxes."
Cohen's testimony doesn't accuse Trump of "tax avoidance," it accuses him of "tax evasion," which is a crime. Section 7201 of the Internal Revenue Service code spells it out: "Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony." The law requires the existence of a tax liability, and a "willful act" taken with "specific intent" to evade that liability.
Trump reportedly decreased his income in a number of ways that seem more indicative of a cheat than a failure. For instance, he appears to have paid his daughter Ivanka Trump nearly $750 000 in unexplained "consulting fees."
A large payment to a family member is inherently suspicious, and a prosecutor investigating tax fraud would try to establish what, if anything, Ivanka's company did for the money. If the Trumps don't have a good answer, and receipts, it could be seen as a willful act taken to evade $750 000 of income tax liability. Anybody who has ever kept business receipts in a shoe box knows that you can't (or shouldn't) buy a laptop for your teenager and call it a "business expense" for your "office."
Consulting fees were a favorite trick. The Times reports that across all of his ventures, Trump claimed around 20 percent of the revenue they generated was paid out as consulting fees.
Again, it's possible that every payout was legitimate and Trump just liked paying for lots of advice. But if it can be shown that any fee was paid to a friendly non-consultant who rendered no services while Trump attempted to shave just a little bit of taxable income off his bill, that could be felony tax evasion.
Indeed, one of the problems with our tax evasion laws is that they are both not enforced enough and yet almost inescapable when the government decides to flex its muscles. Trump claims he spent $70 000 on haircuts, and $100 000 on hair and makeup for Ivanka.
If they didn't keep receipts, any one personal haircut that they wrote off as a business haircut could be part of a tax evasion charge, even though that's pretty ticky-tac stuff once you accept that a reality TV show star and family probably does have legitimate business reasons to get at least a few haircuts and spray tans.
But as described by the Times, these documents also hint at some egregious stuff that should not be countenanced. Trump apparently wrote off $2.2 million in property taxes for his family compound, "Seven Springs," in Westchester County, NY, as a business expense.
But the property has been a family home since Trump bought it in the mid- 1990s. Donald Trump Jr. and Eric Trump have talked about spending their summers there, doing whatever Trump kids do. Even the Trump organisation's website lists Seven Springs as "a retreat for the Trump family."
Calling a home a "business" solely for the purposes of your tax returns is fraud. Just think of all the people "working from home" during the pandemic who still cannot write off their property taxes as business expenses, because their house is still primarily a residence.
And as a Westchester resident myself, I cannot square Trump writing off one of his homes with Trump's 2017 Tax Cut and Jobs Act, which capped the amount of property taxes I could deduct on my actual home at $10 000.
I shouldn't have to let the Trump boys summer at my home and hunt my dog to claim the same business tax benefits as the president.
For Trump's many supporters, avoiding paying his fair share may well make Trump even more of a hero. For those who already hate the government, it probably seems good and laudable to not pay into the country they claim to love so much. Meanwhile, many Trump detractors already think he is dangerously incompetent and will easily believe that his business ventures lost a ton of money.
For my own part, I want to see Trump prosecuted. It seems dispiritingly unlikely that will happen, of course, at least not at the federal level. After all, far richer people have gotten away with tax crimes. But if the president wants to ensure that he'll get off, he can start by admitting that he's just the world's worst businessman. Somehow, though, that seems even more improbable.
* Mystal is justice correspondent at The Nation.
** The views expressed here are not necessarily those of IOL.