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Abstract:
What happens when Congress commands the Secretary of an administrative agency to issue regulations, but the Secretary fails to act?

In most areas of the law, the answer is obvious: a party aggrieved by the Secretary's delay should file a suit (under 5 U.S.C. 706 or a similar provision) asking a court to compel the Secretary to issue regulations.

In the tax area, however, a different pattern has emerged. When Congress enacts a statute commanding the Secretary of the Treasury to act, the courts generally have not bothered to issue an order compelling him to do so. Rather, the reviewing court steps into the Secretary's shoes and creates phantom regulations, announcing the rules that it thinks the Secretary should promulgate pursuant to Congress's directive.

As is often the case, tax lawyers, the IRS, and courts have ignored generally applicable law in favor of a solution that seems "right" as a policy matter. This paper addresses the propriety of that unusual approach and concludes that phantom regulations should never be employed by courts, the IRS, or taxpayers.

Tax, taxation, IRC, APA, regulations, Secretary, 553, 706(1), phantom, self-executing

Abstract:
The Supreme Court grants certiorari in a wide variety of fascinating cases. Occasionally, it agrees to decide tax cases, too.

Perhaps because of the perceived dryness of tax law, the Court has been hesitant to address the validity of the so-called economic substance doctrine. Although there are too many formulations of the doctrine to count, the lower courts often hold that even when a taxpayer has met a statute's requirements, he cannot enjoy any of its benefits unless his conduct reveals a business purpose and a reasonable expectation of profit.

This article argues that the lower courts' application of an extrastatutory economic substance doctrine cannot be reconciled with the Supreme Court cases that purportedly gave birth to that doctrine. Part II explains how lower courts apply economic substance principles regardless of statutory language. Part III demonstrates that the Supreme Court uses economic substance principles only to the extent that the applicable statute makes them relevant. Although this distinction may seem subtle at first, Part IV shows that the two approaches are in fact irreconcilable. Part IV also recommends that the Court affirm its prior holdings, and addresses possible counterarguments to this article's conclusions.

intentionalism, supreme court, economic substance doctrine, tax shelters, tax, statutory interpretation, purposivism, textualism, Coltec, Gregory, Knetsch, economic substance, sham transaction doctrine, substance over form doctrine, business purpose doctrine, LILO, Son of Boss

Abstract:
Can you go to jail for tax evasion even when you don't owe the government anything in taxes? Is it a crime to avoid a tax liability that doesn't even exist?

In Boulware v. United States, the Ninth Circuit said yes, it is. But Boulware petitioned the Supreme Court for cert, and the high court agreed to hear his case.

This document is a transcript of remarks that I made while recording a podcast on the Supreme Court's ultimate decision in Boulware v. United States. These remarks should be useful to anyone looking for a nontechnical, easily accessible (but nonetheless informative) summary of the issues involved in Boulware.

Abstract:
Congress blundered badly by defining the federally authorized tax practitioner privilege by cross-reference to the attorney-client privilege. The relationship between a client and a FATP is wholly different from that between a client and an attorney, and the application of attorney-client principles to the FATP privilege has given rise to confused judicial opinions.

This report attempts to stem the confusion with respect to one aspect of the FATP privilege. The proper application of the selective waiver doctrine to the FATP privilege remains an open question, though courts seem poised to reject it. They have rejected it numerous times in the context of attorney-client privilege claims, and generally find the doctrine incompatible with that privilege's basic purposes.

This report argues that courts should accept the selective waiver doctrine whenever the FATP privilege is at issue.