The substantive canons of tax law

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Abstract

Anti-abuse doctrines in tax law have traditionally been formulated as multifactor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: Some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes. This Article argues that anti-abuse doctrines should be considered substantive canons of construction: interpretive presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive. Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.

Original languageEnglish (US)
Pages (from-to)195-260
Number of pages66
JournalStanford Law Review
Volume72
Issue number2
StatePublished - Feb 2020
Externally publishedYes

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