What Would Henry Simons Do?: Using an Ideal to Shape and Explain the Economic Substance Doctrine

Abstract:     
This Article discusses the potential results of injecting the Haig-Simons (H-S) income concept into the debate over the economic substance doctrine (ESD) - a debate that seems unlikely to diminish in spite of the recent codification of the ESD. The conclusion reached is that the H-S income concept could provide an organizing principle for anchoring the ESD’s substantive content and defining its role in tax litigation and planning. This Article proposes an H-S ESD that would move away from the current ESD’s approach of disregarding an entire transaction as a substantive sham to an approach that taxes whatever a transaction actually accomplished, as measured using the H-S concept. Application of the proposed H-S ESD to five case studies (Knetsch, ACM, Castle Harbour, Compaq, and UPS) suggests possible additional benefits of thinking about tax-avoidance transactions in terms of H-S: it may help delineate the boundaries of the ESD’s applicability to suspect transactions, and it may help explain the outcomes of ESD cases.

Number of Pages in PDF File: 98

Accepted Paper Series