There are several inferences that voters might reasonably draw from Republican presidential nominee Donald Trump’s leaked tax returns and his campaign’s responses to them. Most of them don’t look good for Trump, but even those that do warrant the disclosure of much more information to support them. But the headline that Trump possibly paid no federal income taxes for many years because of his losses in the early 1990s, although shocking to the electorate, is just not remarkable from a tax-law standpoint.
The Internal Revenue Code has long allowed taxpayers to carry losses from one year into the future, where they can be used to offset income earned in later years. This regularly happens with start-up companies, firms in volatile industries (such as airlines) and other small and large businesses whose operations do not fit neatly into the mandated annual reporting regime. This is a feature, not a bug, of our tax code.
But Saturday’s revelation about Trump’s 1995 taxes raises many questions that are not easy to answer. Measured by any standard – other than perhaps against airlines and car companies – Trump’s operating losses were enormous. And we know so little about them. Which Trump entities claimed these losses? Were the losses due to debt secured by Trump’s properties, in which case the loss might have been suffered by lenders, or were the losses suffered by Trump himself? Apparently Trump settled his earlier audits without having to pay additional taxes in those years. In the peculiar patois of tax lawyers, that means other adjustments were probably made to his returns, such as by reducing his net operating losses. How large were the reductions?
Ultimately, what matters is not that Trump reported large losses on tax returns, but whether these were real economic losses. We know that at the time some taxpayers were using questionable tax shelters to generate tax losses without suffering any true economic loss. Some experts see nothing remarkable in Trump’s losses, but others have speculated that they might be artificial. These latter experts argue that Trump could have created the losses through exploitation of a wrinkle in the tax code, since eliminated by Congress, allowing him to avoid having to declare income when some of his loans were forgiven. How aggressive were Trump and his tax attorneys?
Still other questions remain about Trump’s more recent returns. Although news reports focus on Trump the real estate magnate, Trump is his own conglomerate with widespread business interests and numerous licensing deals globally. In this way, Trump is similar to Apple and Starbucks, and the same questions that have arisen with respect to the propriety of their tax strategies might reasonably be asked of Trump. In what countries is he earning income? In what countries is he paying tax on that income, and how much tax is he paying? Again, how aggressive is he in his tax planning? The answers to some of these questions can likely be found in his more recent returns.
Trump, as he claims, might well be a very smart guy who has mastered the tax law. He might be someone who understands the intricacies of the Internal Revenue Code and the difficulties in enforcing the code. He may have pushed hard, but no more so than other individuals and corporations, to reduce his taxes. And perhaps he has balanced his aggressive tax planning with generous charitable contributions. The information we have is so fragmentary and at such a high level of generality that it is impossible, however, to draw any such conclusions. He must show us more.
In addition to the tax questions, there are business ones. Many people point to the $916 million loss – a number so large that the software Trump’s accountant used to produce his return would not accept the number. They see this staggering figure as indicative of Trump having weak business skills – that he has been a failure. That may be true. However, the 1990s were hard years for many industries, including real estate and airlines, where Trump had large investments that cratered. Many smart and sophisticated people lost a lot of money over those years. Trump should take the opportunity to show, if it is true, through his tax returns that he rebuilt from that time, perhaps even enough to support the payment of additional taxes if the gains exceeded his losses.
U.S. voters need additional information from Trump’s returns to draw informed conclusions about whether Trump is a business genius or failure, or perhaps whether his business acumen merits some more nuanced description. The information in these returns will end speculation whether Trump did or did not pay U.S. federal income taxes over his decades-long career – and if not, it will provide voters who pay their taxes every year the information they need to make of that what they will.