By: David J. Herzig
Today Pulitzer Prize winning journalist, David Cay Johnston, Phil Hackney, and I got together for a 30 minute podcast discussion regarding the recent NY Times follow-up article about Mr. Trump’s $916 million tax loss (“NOL”).
Here is link if you missed hyper-link above: http://share.sparemin.com/recording-5131
The topics ranged from the current tax reporting regarding Mr. Trump’s 1990s tax returns to the Trump Foundation to potential criminal sanctions against Mr. Trump. It was fantastic to be a part of and I hope everyone listens.
I think we were clear in the podcast, but, just in case, we are not opining to any actual strategy that Mr. Trump may have actually used to generate the NOL since we have no idea. Whether he used a Gitlitz type transaction as Mr. Johnston believes, or, a more straight forward debt/equity swap as I believe, does not matter for the purposes of the discussion. Since we know none of the underlying facts of the transaction and Mr. Trump refuses to release his tax returns, we can only speculate about the range of possibilities.
Additionally, I think we were clear, but, if not, we do not believe with the facts that are public that Wilkie Farr acted improperly in opining on the transaction. I think my view are clear and others (like Andy Grewal here) have come out the same place regarding opinion letter ethics. Others may differ, but, that it is their right to come to another conclusion.
Finally, we are not prosecutors and can only comment on the theoretical potential outcomes that might arise if the facts alleged in the popular press are accurate. As professors, we often engage in thought experiments to determine where the contours of the law are.
The Surly Subgroup 
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