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Trump’s taxes: Does ‘shall’ really mean ‘must’?

President Donald Trump
REUTERS/Yuri Gripas
President Donald Trump
There’s a lot of talk these days about words and their meanings.

One illustration strikes very close to home here. The latest scathing criticism reaching from the White House twitter room regarding Rep. Ilhan Omar, the Democrat from Minneapolis, concerns her statement to a gathering of Muslim activists that “some people did something” on Sept.11, 2011, a predicate to her lamentation about the infringement of civil liberties of adherents to Islam after those horrific attacks on this country.

Her seeming semantic minimization of the notorious events of that day have been leapt upon by her large and growing body of detractors, as reflecting further tone deafness, at a minimum, and even more seriously lack of patriotism. Her supporters have backed her up by directing attention to the balance of her remarks regarding impairment of constitutional rights, rather than defending the awkward words she used.

War of words

Nuances notwithstanding, the political scene is beset by another war over words centering on the attempt by Democrats in the House of Representatives to obtain Donald Trump’s long-promised tax returns. The key word is “shall,” the term used in the provision of the Internal Revenue Code that predicates the demand by the Democratic chair of the powerful House Ways & Means Committee, Richard Neal of Massachusetts, for the president’s tax returns dating back to 2013. The Massachusetts Democrat made his request under § 6103(f) of Code for the Internal Revenue Service (IRS), which states that upon written request from a chair of that committee or of the parallel Senate committee, the Department of Treasury “shall furnish the tax return of any individual.”

Marshall H. Tanick

The administration’s declination to do so, as Neal pushes back the deadline for compliance to April 23, has drawn scoffing, skepticism, and some support. Trump maintains, incorrectly, that there is “no law whatsoever” that authorizes the request, clearly ignoring the very provision under which the request is made, which also imposed stringent confidentiality limitations and revelation only in closed executive congressional sessions.

Some supporters of the administration’s resistance to the request treat the request scornfully, asserting that there must be some legitimate or legal “justification” for doing so, that the request is only made for partisan political purposes, and that the Democrats are “weaponizing” the IRS. Yet others raise questions about the constitutionality of the statute, at least as applies to the president, pointing to separation of powers and other legal tenets that might be infringed by the request.

Neal and his advocates respond by noting the absence of any such qualifying language in the statute and, furthermore, maintain that even if such a requirement were to exist, there is a proper basis for making this request in order to examine how the tax system is treating the president and ascertain the veracity of the president’s multitude of statements that he would release his tax returns, but he cannot do so while they are under audit, which strains the credulity of many observers.

These issues seem to promise a long and testy court fight, probably reaching the pinnacle of the U.S. Supreme Court, where the president’s two appointees, Neil Gorsuch and Brett Kavanagh, may hold the critical votes on that tribunal.

Ultimately, the case may boil down to the meaning of the word “shall.” At first blush, that seems like a no-brainer — that the requesting Democrat has a slam-dunk, will easily prevail, and the president will not.

But, wait – it is not so simple.

Minnesota model 

While the case will be decided in the federal court system in the nation’s capital, references might be made as to how the word is treated in rulings of other judicial bodies. If so, Minnesota may be a model.

Minnesota law provides that words in a statute shall be interpreted according to “their common and approved usage” and goes on to state that the word “shall” is “mandatory.” Despite these declarations, in some circumstances, the word is construed as precatory rather than obligatory. In other words, courts in Minnesota and some other jurisdictions do not impose a lexigraphical litmus test in deciding the meaning of the word “shall.”

For instance, if the word refers to the timing of a decision, the phrase is often deemed permissive, converting “shall” to “may.” Similarly, when it refers to the provisions of a public service, such as goods or services to be furnished by as government entity, the courts often back down and construe “shall” to be optional, but not required. The reference to the word “shall” in laws concerning actions by judicial bodies also is often deemed to be non-advisory, but not required.

One case, decided by the Court of Appeals here, under a provision of the Minneapolis Civil Service Commission requiring that a hearing officer “shall” issue a ruling on disciplinary matters within a 45-days time period was held not to be binding when the decision was rendered more than 450 days later, a 10-fold delay. The court deemed the extraordinary delay excusable because the word “shall” in the ordinance was “directory only, and not mandatory.”

The predicate for that decision was another exemption to the literal interpretation of “shall,” when the underlying law does not contain any consequence for failure to comply. In those instances, courts often treat “shall” as optional, not obligatory.

On the other hand, some laws that use the word “shall” invoke mandatory compliance because the measures state a consequence of a failure to do so. For instance, a Minnesota environmental law required the conducting of an Environmental Assessment Worksheet (EAW) prior to undertaking certain actions that may have potential deleterious impact. The EAW, a brief checklist of environmental effects, is triggered by the submission of a petition signed by 100 people to the applicable governing body. Declaring that an EAW “shall” then be conducted, the law goes on to state that the project under scrutiny “may not be started” and the final government decision may not be made until disposition of the EAW. In these circumstances, the inclusion of a specific consequence for failure to comply with the “shall” directive  makes the law mandatory, rather than advisory.

Wiggle word

Despite its seeming clarity, the word “shall” in the IRS provision in question regarding the president’s tax returns may furnish some wiggle room for him and the IRS. The measure may fall within at least a couple of the exceptions, endorsed by the law in Minnesota and elsewhere to obviate the “mandatory” of that term. The exemption for providing government services could arguably be invoked as a basis for diluting the obligatory nature to a lesser feature of the word “shall.”

More significantly, the absence in the IRS statute of any negative consequences for failure to comply may also pose an obstacle to judicial compliance with the provision. While the IRS law provides a five-year jail term and $5,000 fine for the felonious disclosure of tax returns, it does not provide any sanction for refusal to divulge a return upon a proper request by a member of Congress.

‘Shall’ shell 

The president and his supporters may be playing a shell game with the word “shall,” but they also can rely upon legal precedents established in Minnesota and elsewhere that might buttress their resistance. On the other hand, if they lose, the tax returns may lead to the president’s downfall, depending upon the contents of those returns. Moreover, the president’s acting chief of staff, Mick Mulvaney, who also is the director of Management and Budget, has stated that the tax returns will never be produced, seemingly suggesting possible defiance to any adverse judicial outcome.

Incidentally, the IRS Code that contains the controverted passage also directs that the IRS “shall” furnish to the president or any White House personnel the requested returns of any “taxpayers” with no limitation, including the reasons for the request, or restriction on use of the data divulged.

As the judicial jousting proceeds, probably over the next year or so, another character who knows something about falling down might come into play. As the rotund Humpty Dumpty explained to Alice, while she was meandering through Wonderland, “When I use a word, it means just what I choose it to mean – neither more nor less.”

As the court process gears up, the public “shall” see what occurs … or maybe not.

Marshall H. Tanick is a constitutional attorney with the Twin Cities law firm of Meyer Njus Tanick.


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Comments (15)

  1. Submitted by Ray Schoch on 04/18/2019 - 09:22 am.

    “…Moreover, the president’s acting chief of staff, Mick Mulvaney, who also is the director of Management and Budget, has stated that the tax returns will never be produced, seemingly suggesting possible defiance to any adverse judicial outcome…”

    And should that “defiance” outcome be the case, we (the public) will have more than just a suggestion that (A) Mr. Trump has something to hide in those tax returns; and (B) that Messrs. Trump and Mulvaney are leading a direct attack not just on the judicial system, but placing (or at least attempting to place) the President above the rule of law.

    A case could be made that (A) doesn’t necessarily automatically mean impeachment or removal from office. I wouldn’t personally agree, but the case could be made. (B), however, certainly does, or at least ought to, in this non-lawyer’s judgment. I’d guess it would constitute a genuine constitutional crisis, the likes of which we’ve not seen before, and Mr. Trump has already demonstrated that he is self-centered enough, and has strong enough authoritarian tendencies, to be willing to try turning the United States from a society of laws to a society of men. If nothing else, doing so would make him like every other tin-pot dictator we’ve seen over the past century and more. It would also make him a traitor.

  2. Submitted by Paul Udstrand on 04/18/2019 - 09:26 am.

    Well, I think the law say that Americans “shall” file their tax returns by a given date, and pay the taxes owed by that date or suffer penalties. Doesn’t seem to be a lot of wiggle room there unless you file and obtain an extension. But thanks to Mr. Tanick for pointing out the fact that even learned judges can screw up a one man parade if given half a chance.

    I think a request from Congress investigating a sitting president in their Constitutional capacity as overseers would carry a little more weight than a procedural matter on the State level, but I’m not a lawyer.

  3. Submitted by Kevin Johnson on 04/18/2019 - 09:43 am.

    The ‘shall’ discussion continues to avoid the more obvious question of why President Trump insists on passing up the opportunity to demonstrate there is nothing illegal evident in his tax filings once and for all. Until he does, suspicion is justified.

  4. Submitted by Paul Udstrand on 04/18/2019 - 09:56 am.

    Also, I’m don’t see why our jumping off point in a discussion about Trump’s tax returns has to begin with criticisms directed at Omar? Why does everyone have to go out of their way to get in a dig on Omar?

  5. Submitted by Joel Stegner on 04/18/2019 - 10:39 am.

    Reading this article was like reading the small print on a product guarantee, which the purpose is to wriggle out of doing what is right. There is precedent for releasing tax returns and Trump promised to do so. That Trump lies about virtually everything he says is no excuse. Make a promise – keep it. Simple enough idea for even Trump, Giuliani and the other reprobates in the Trump universe to understand.

  6. Submitted by John Evans on 04/18/2019 - 11:11 am.

    I seem to remember another president getting thoroughly roasted for his testimony that it “depends on what the meaning of ‘is’ is.”

  7. Submitted by Bob Petersen on 04/18/2019 - 02:20 pm.

    This article does not state the full details of what is actually going on other than defining what ‘shall’ means. If this article is going to espouse the issue of wanting the tax returns of the president, the full picture needs to be stated, not just to make it appear one sided.
    The argument against is that there has not been one ‘valid’ reason for a legitimate purpose for asking for them. The reason put forward is to ensure that there is nothing that is compromising the president. That may seem reasonable, but only at face value. When you have been hounded and railed on for only political purposes of this subject going on many years, a reasonable person can conclude that the reason given is just a ruse to get hands on tax returns that have been wanted well before Trump was even president.
    Then add to the fact that the IRS law that the writer states is that the committee can only review requested tax records in executive session, the law only covers for review within the government. Trump and his team are correct in their statements that there is no law that requires them to release tax documents for the PUBLIC.
    Then there is one final piece is that Democrats and those that fervently support them have a long track record of leaks in areas all over government.
    Everyone knows that this is just another fishing scam. Everything else that Democrats have tried to pin on Trump has turned out to be complete fallacy. You can debate ‘shall’ all you want, but this issue is has so much more to it than just the one word.

    • Submitted by Tim McCarthy on 04/18/2019 - 04:40 pm.

      The article is not advocating one way or another on the issue, thus your complaint is moot.
      Also, it’s irrelevant. There is no need for a “valid” reason or any reason within the law.
      The rest is just straw

  8. Submitted by Tom Crain on 04/18/2019 - 05:03 pm.

    Can’t wait for the SC ruling on this! Wonder how it will impact other laws and part of the constitution, like this:

    “The Senate of the United States *shall* be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator *shall* have one Vote.”

  9. Submitted by Tom Anderson on 04/18/2019 - 10:23 pm.

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”.

    Take note of the word “shall” all ye hardliners on the tax returns.

  10. Submitted by Hiram Foster on 04/19/2019 - 06:05 am.

    “Shall” has a mandatory sense to it, but it’s not absolute. Something that is difficult to make happen is rarely made easier by the use of the word “shall”. Congress could pass a law to the effect that the sun “shall” rise in the west, but that won’t necessarily mean it will happen.

    As lawyers for well heeled defendants all know, their greatest ally isn’t statutory construction of language, it’s delay, combined with an ability to generate expenses on the other sides. These tactics, more than any other, have made Donald Trump a successful litigant. Quite simply, he will run out the clock on the various legal issues, a strategy which will certainly prove successful.

  11. Submitted by Hiram Foster on 04/19/2019 - 09:59 am.

    There is a secret to the practice of law, one not taught explicitly in law schools, but familiar to any successful practitioner of the profession. It takes many forms, is applicable in many contexts, and it has many corollaries, but in principle it’s the essence of simplicity. The secret is, if you can’t enforce the law you don’t have to follow the law. We can see how this secret works in the debate about the meaning of the word “shall”. Now in strictly legal and linguistic terms, it is quite possible to quibble endlessly about what the word means from a multiplicity of perspectives. Indeed, the discussion can be at times, fascinating. But to the result oriented legal professional, the substance of discussion is irrelevant, what matters is that the discussion the discussion can be carried on indefinitely to the point where either the disposition becomes irrelevant or the parties have turned over all of their money to their attorneys.

  12. Submitted by Hiram Foster on 04/20/2019 - 06:05 am.

    There is a deeper problem. There is a potential constitutional crisis, which if it comes and there is not guarantee that it will, could fundamentally and permanently change our government. The Supreme Court, or at least it’s more politically astute members, are well aware of this, and the potential for this crisis has influenced decisions in the past and might well determine the decisions the court makes in the future.

    The nature of this potential crisis is quite simple. What happens if the president of the United States reject a federal court order? Can the order be otherwise enforced? And if it isn’, in any interaction between the other two branches of government, can the rulings of the federal courts be viewed as anything other then advisory but of no binding effect?

    • Submitted by Paul Udstrand on 04/23/2019 - 09:42 am.

      I think we’ve been in a Constitutional crises almost from the day Trump took office. This only gets worse before or even if it ever gets better. Trump is now issuing orders to his staff and federal employees directing them to disregard Congressional subpoenas, essentially putting the entire executive branch in contempt of Congress. Meuller documents an executive branch that functions on deception and misinformation on a daily basis but can’t indict because being an historically dishonest President isn’t a crime. And it’s not just Trump that has delivered a Constitutional crises, Ryan and McConnel consistently refused to exercise their Constitutional obligations as an independent branch.

      Yes, without an effective enforcement mechanism, no law is really a law.

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