54 Pages Posted: 31 Aug 2013 Last revised: 22 Mar 2014
Date Written: March 21, 2014
Safe harbors pervade tax law. Yet, the academic literature offers no comprehensive account of why they exist. This Article begins to fashion that account by developing a theoretical framework for understanding the functional purposes that safe harbors serve. In order to analyze safe harbors’ functional purposes, this Article compares and contrasts them with rules and standards.
Articulating the reasons for adopting safe harbors has important practical implications. For instance, analyzing the functions of safe harbors can shed light on the use of other rule-standard hybrids such as rebuttable or irrebuttable presumptions. In addition, this Article provides direction to lawmakers considering the enactment or redesign of a particular safe harbor. For example, recently commentators have advocated for additional clarity in the area of law governing tax-exempt organizations’ political campaign activities. The analysis in this Article has important implications for the manner in which lawmakers ought to provide any such additional clarity.
Keywords: safe harbors, rules, standards
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