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Did Codification of Economic Substance Repeal the Partnership Anti-Abuse Rule?

13 Pages Posted: 18 Oct 2010  

Howard E Abrams

Harvard Law School


Since codification of the economic substance doctrine in March of 2010, representatives of the Treasury department have assured taxpayers that no change in substantive law was intended, and the statutory language is relatively narrow. But courts have used the phrase “economic substance” for a variety of anti-abuse doctrines, and several commentators have suggested that the new statutory language can encompass them all. The precise reach of the codified economic substance doctrine is important because of the new penalty regime that is triggered by a failure to satisfy the codified economic substance doctrine, and I argue that the breadth of the new penalties strongly supports a narrow reading of the codification language.

Keywords: tax, partnerships, taxation

Suggested Citation

Abrams, Howard E, Did Codification of Economic Substance Repeal the Partnership Anti-Abuse Rule?. Tax Management, Vol. 51, p. 299, 2010; Emory Public Law Research Paper No. 10-131; Emory Law and Economics Research Paper No. 10-84. Available at SSRN:

Howard E. Abrams (Contact Author)

Harvard Law School ( email )

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