Jonathan H. Choi, NYU School of Law, has made available for download his article, The Substantive Canons of Tax Law, published in the Stanford Law Review. The Abstract is as follows:
Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor 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. The double attack on these doctrines undermines important barriers against abusive tax avoidance.
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.Choi, Jonathan H., The Substantive Canons of Tax Law (June 7, 2019). 72 Stanford Law Review (forthcoming 2020). Available at SSRN: https://ssrn.com/abstract=3400792