Substance Over Form in Transfer Tax Adjudication

37 Pages Posted: 25 May 2022

See all articles by Jay A. Soled

Jay A. Soled

Rutgers University

Richard Schmalbeck

Duke University School of Law

Date Written: May 20, 2022


The elevated exemption level under the federal transfer tax system (now in excess of $23 million for a married couple) has opened up new and abusive tax-avoidance opportunities. In many areas of the tax law, the substance over form doctrine historically has been effective in controlling such abuses; however, for a myriad of reasons, transfer tax jurisprudence has been marred by the reluctance of courts to embrace this doctrine. In this analysis, we urge reconsideration of that posture.

Keywords: Estate Tax, Substance Over Form

JEL Classification: K34

Suggested Citation

Soled, Jay and Schmalbeck, Richard L., Substance Over Form in Transfer Tax Adjudication (May 20, 2022). Loyola of Los Angeles Law Review, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2022-31, Available at SSRN: or

Jay Soled (Contact Author)

Rutgers University ( email )

1 Washington Park
Newark, NJ 07901-1825
United States
(973) 353-1727 (Phone)

Richard L. Schmalbeck

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7078 (Phone)
919-613-7231 (Fax)

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