This article originally appeared on ACLU’s Speak Freely.
People across the country filed their tax returns last week, glitches and all. If past trends hold, this year’s taxpayers will include millions of illegal immigrants.
While federal law protects the confidentiality of tax information, concerns have been expressed recently that tax-related information provided to the government by immigrants and their employers could be used by the Trump Administration as a new immigration enforcement tool, and evidence suggests that the number of individuals filing tax returns has dropped significantly.
That’s why the ACLU filed a Freedom of Information Act request last week, requesting information about whether the Social Security Administration is complying with federal law and not sharing sensitive tax information with immigration enforcement officials.
The tax law permits the IRS to share certain information about each worker’s income with the SSA so that it can calculate each worker’s entitlement to Social Security benefits. Employers are required to report each employee’s name, Social Security number, and income information to the IRS on a “W-2” form. The tax law requires that these forms may be shared with the SSA for administration of the Social Security program.
However, tax law restricts the SSA from sharing that information with other agencies, including the Department of Homeland Security. If tax return information were shared with law enforcement agencies such as DHS, it would severely discourage people from complying with tax laws in the first place. Because tax returns contain a large amount of sensitive information, and to encourage people to comply with the tax system, federal law requires that tax information be kept strictly confidential.
Despite these laws, DHS has previously attempted to use what it calls “mismatch” information in SSA databases to pursue immigration enforcement purposes. A mismatch occurs when an employer reports a particular worker’s name, Social Security number, and income information on a W-2, but the name or Social Security number does not match the information in SSA’s records. The causes of a mismatch are numerous and include administrative errors, name changes after marriage or divorce or for other reasons, and different naming conventions that are common in many parts of the world, especially in some Latin American and Asian countries. As a result, many U.S. citizens and other legally authorized workers may have mismatches between the information reported on their W-2 and the information in SSA’s records.
SSA officials have made clear in the past that under tax law, SSA discrepancy records cannot be shared with DHS without Congressional authorization. Indeed, an SSA official stated in 2006 congressional testimony that “IRS officials have also expressed concerns about sharing this data.” [with DHS] Tax collection and compliance may decline.”
Federal courts have also ruled on whether the SSA can disclose information about the names of employers with the most mismatched employees. The U.S. Court of Appeals for the District of Columbia Circuit answered this question with a resounding “no.” The court held, and the Department of Justice ultimately agreed, that the SSA could not disclose the employer information contained on W-2 forms because it is confidential for tax purposes.
We shouldn’t have to worry that the SSA is releasing information that is legally confidential, but we are. The Trump Administration promised and has made good on its promises to increase immigration enforcement in the workplace, most recently in Tennessee, where a meatpacking plant was attacked earlier this month, devastating a community and forcing 550 children to miss school. We know that the Department of Homeland Security desperately needs information from other agencies at the local and federal levels to aid in its enforcement efforts. The Administration has also stripped away basic privacy protections for many immigrants. And lawmakers are proposing to loosen the tax code to mandate exactly the kind of information sharing we’re concerned about.
Given this Administration’s all-out assault on our legal rights and immigrant communities, we can’t just sit back and hope that President Trump’s Social Security Administration follows the law.
Jennifer Chan Newell, managing attorney, ACLU Immigrants Rights Project, California office;
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