The Tension between Textualism and Substance-Over-Form Doctrines in Tax Law

52 Pages Posted: 13 Feb 2010

See all articles by Allen Madison

Allen Madison

University of South Dakota Law School

Date Written: 2002

Abstract

This article discusses the tension that exists between the recent textualist approach taken in the U.S. Supreme Court and the judicially developed substance-over-form doctrines that pervade tax law. It sets forth Justice Antonin Scalia’s textualist approach, provides an overview of the substance-over-form doctrines, and then analyzes whether the current Supreme Court would uphold a case that overrode the literal text of the Internal Revenue Code on the basis of one of the doctrines. The article concludes that the current Supreme Court would reject any of these doctrines if faced with the issue.

Keywords: Economic substance, substance over form, tax shelter, tax planning, textualism, taxation, tax law

Suggested Citation

Madison, Allen, The Tension between Textualism and Substance-Over-Form Doctrines in Tax Law (2002). Santa Clara Law Review, Vol. 43, pp. 699-750, 2003. Available at SSRN: https://ssrn.com/abstract=1552310

Allen Madison (Contact Author)

University of South Dakota Law School ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

HOME PAGE: http://www.usd.edu/faculty-and-staff/Allen-Madison

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