Sheltering Lawyers: The Organized Tax Bar and the Tax Shelter Industry

Abstract

This Article considers the role of tax lawyers in the corporate tax shelter controversy. In the mid-1990s, a large market emerged in abusive tax shelters, which cost the treasury tens of billions of dollars in lost tax revenue a year. Although individual tax lawyers were deeply involved in abusive tax shelters, the organized tax bar supported law reforms intended to rein in the tax shelter market. The bar's initiatives included due diligence obligations for opinion letters issued in connection with tax shelters and other proposals intended to strengthen practice standards. The tax bar's positions in the tax shelter debate cannot be adequately explained by conventional accounts of the organized bar, which assume that bar groups act to further lawyers' or clients' economic interests or to improve the reputation of the bar. Nor, however, should the bar's positions be taken as pure expressions of public-mindedness. A more nuanced conception of professionalism is required to account for the bar's initiatives. This Article argues that the bar's positions reflect a specific professional ideology of tax practice in which tax lawyers, by virtue of their expertise, serve as gatekeepers for the tax system. While not conferring immediate economic benefits to tax lawyers, the bar's reforms further tax lawyers' long-term reputational and other interests, even as they serve to bind lawyers to higher practice standards and protect the integrity of the tax system.

Keywords: tax policy, legal ethics, legal profession