New York: Times’ Trump Tax Scoop Doesn’t Prove Criminality. But Does it Point the Way?

The New York Times’ blockbuster unveiling of President Trump’s tax returns features a wealth of unsavory revelations, including the fact that he used aggressive accounting to avoid paying taxes on hundreds of millions of dollars of income. But while the scoop may yield political fallout, there’s little in this phase of the Times’ reporting that in itself suggests criminal exposure for the president in the form of tax-fraud charges. “What you have,” says former IRS criminal investigator Martin Sheil, “is a pattern of constantly pushing the envelope, exploiting every tax advantage that the Internal Revenue Code legitimately provides.”

The president was able to pull this off because of decades of political pressure from the wealthy to recast the tax system in their favor, Shein says: “There are so many legal deductions that businesses — such as real-estate moguls — have lobbied for and obtained and that Mr. Trump is now exploiting.”

Even if Trump is eventually found to have gone beyond the bounds of the law — if, for instance, IRS auditors ultimately reject the $70,000 that Trump deducted in hair-styling expenses — that would only be a civil matter, resulting in the imposition of a monetary penalty.

Trump’s tax filings could put him in danger, Sheil says, is if they are contradicted by other financial filings that indicate the president knowingly misrepresented his finances on one or more of them. As I recently reported for New York about Trump’s criminal exposure, falsifying business records can be charged as a felony with a maximum penalty of five years in prison if it is committed in the furtherance of another crime, such as tax fraud.

One place to look for inconsistencies, Sheil says, is in the tax forms’ depreciation schedules. “It sounds pretty arcane,” he says, “but it might be important, because when you depreciate an asset you have have to show the cost basis of that asset on the tax return. It should be the same amount that you use in loan applications to banks when you use it as collateral to purchase additional commercial property or golf courses or whatever. If you are enhancing these assets’ value falsely — putting down a different number on your financial statements than what’s on your tax returns — how do you explain that? You’re boxed in.” Likewise, any inconsistency between property-tax filings or insurance applications could also suggest fraud.

The Times’ revelations come as Manhattan District Attorney Cy Vance Jr. seemed poised to win a yearlong subpoena battle against Trump to obtain financial documents from Trump’s accounting firm, Mazars. If Vance’s bid is successful, he could obtain not only Trump’s tax returns but other financial filings and correspondence with his accountants that could reveal discrepancies and demonstrate an awareness on Trump’s part that he was engaging in criminal conduct — a prerequisite for felony fraud charges. Last week, in a court filing with the Second Circuit Court of Appeals, Vance’s office indicated publicly for the first time that it was weighing tax-fraud charges against Trump.

The origin of Vance’s case was the discovery by Mueller investigators that Trump had directed Michael Cohen to make hush-money payments to a former lover, the porn star Stormy Daniels, and then falsely claimed the expenditure as legal expenses. “It raises the question in my mind of why a guy who is so privileged, has access to the best lawyers and accountants and can take every advantage of the tax code—why would someone like that have to go even further and commit tax fraud? What kind of person does that?” asks Sheil. “It’s not too hard for a jury, once they’re informed as to the pattern of illegitimate financial conduct by a person, to understand his state of mind. I think that Mr Trump has created a real problem for himself if these things turn out to be true.”

This story originally ran in New York magazine on September 28, 2020.