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Overcoming Overdisclosure: Toward Tax Shelter Detection


Joshua D. Blank


New York University School of Law

October 15, 2008

UCLA Law Review, Vol. 56, 2009
Rutgers School of Law-Newark Research Papers No. 027

Abstract:     
Every year, thousands of taxpayers and their advisors mail special disclosure forms that reveal details of potentially abusive tax strategies to the Office of Tax Shelter Analysis of the Internal Revenue Service in Ogden, Utah. The mandatory disclosure regime has been widely praised as one of the government's most effective weapons in its war on tax shelters. In contrast to this largely positive portrayal, however, this Article argues that the current tax shelter disclosure law is incomplete. While the primary aim of current law is to deter non-disclosure of information by taxpayers and advisors, my claim is that the government should also strive to prevent behavior that may be just as problematic to the IRS's ability to detect and challenge tax shelters - "overdisclosure" of information. As this Article demonstrates, since the introduction of the tax shelter reporting rules in 2000, taxpayers and advisors have frequently disclosed to the IRS their participation in routine, non-abusive transactions or details of activities that are irrelevant to tax shelter detection. After investigating the sources of overdisclosure, I conclude that the tax law itself invites this response from distinct types of taxpayers and advisors. Conservative types overdisclose out of excessive caution, while aggressive types overdisclose in an attempt to avoid detection of abusive tax planning. As a result of the threats to tax administration that overdisclosure poses, I offer three novel proposals for proactively reducing its occurrence: the introduction of "anticipatory" angel lists when the IRS designates new listed transactions; the enactment of targeted overdisclosure penalties; and a "non-tax documentation" requirement for business taxpayers.

Number of Pages in PDF File: 62

Keywords: Tax Shelter, Reportable Transaction, Tax Avoidance, Disclosure, IRS, Audit

JEL Classification: H20, H23, H24, H25, H26, H29, K34

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Date posted: October 16, 2008 ; Last revised: September 1, 2009

Suggested Citation

Blank, Joshua D., Overcoming Overdisclosure: Toward Tax Shelter Detection (October 15, 2008). UCLA Law Review, Vol. 56, 2009; Rutgers School of Law-Newark Research Papers No. 027. Available at SSRN: http://ssrn.com/abstract=1285342

Contact Information

Joshua D. Blank (Contact Author)
New York University School of Law ( email )
40 Washington Square South, Room 430AA
New York, NY 10012
United States
(212) 998-6479 (Phone)
HOME PAGE: http://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=23511
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