David McKay Wilson

The Journal News

President-elect Donald Trump defied political custom by refusing to release his income tax returns during the bruising 2016 presidential campaign because he said his returns were under IRS audit.

Now he'll have to decide whether he'll defy the presidential custom of releasing his tax returns each of the four years when he serves as president.

He'll also have to decide whether to exert influence regarding his personal tax issues at the IRS, which is part of the U.S. Department of Treasury he will oversee.

Every U.S. president since Richard M. Nixon has released his tax returns, with the exception of President Gerald R. Ford, who came to power following Nixon's resignation, said tax historian Joe Thorndike, director of the Tax History Project.

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Howard Gleckman, senior fellow at the Tax Policy Center in Washington, D.C., said Internal Revenue rules require the annual audit of the president and vice president's tax returns.

He'll be under audit. As were his predecessors, dating back to Nixon.

However, while the IRS must conduct the audit, there is no rule to mandate that the nation's top elected officials release to the public.

"That's custom," said Gleckman. "And that's where Trump will have some explaining to do. He won't be able to use the audit excuse in the same way he has been using it."

The IRS has declined to say whether Trump's returns are under audit. And on Wednesday, the agency declined to comment on whether his election would have any impact on the audit Trump has said is underway.

Other issues could arise once Trump takes control of the U.S. government's executive branch. Trump could use his executive powers to influence actions by the IRS, said David Herzig, professor of law at Valparaiso University Law School in Valparaiso, Indiana.

"First, Trump will now be in charge of the IRS that's investigating himself, and that creates an inherent conflict," said Herzig. "Even if he doesn't exert authority over the IRS, he'd be in charge of the executive agency making the determination whether he or the IRS is right. There's a potential for problems as it plays itself out."

Herzig said Trump could order the IRS not to enforce its internal regulations regarding the annual audit of the president and vice-president. He also appoints the IRS commissioner, whose term expires in November 2017.

"What if Trump tells the IRS not to enforce the rule on annual audits?" Herzig said.

Then there are questions of what would transpire if the IRS makes a finding against President Trump for back taxes, which he decides to challenge.

Herzig said one venue for such a challenge would be the United States Tax Court, which a 2015 decision found to be part of the executive branch. The president also appoints judges to that court.

David McKay Wilson is an opinion columnist for The Journal News.