Anti-abuse doctrines in tax law have traditionally been formulated as multifactor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: Some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual judicial inventions. These challenges undermine important barriers against abusive tax schemes.
This Article argues that anti-abuse doctrines should be considered substantive canons of construction: interpretive presumptions that can be rebutted by statutory text or purpose. Doing so would resolve apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconcile the substantive canons to textualists as constitutionally permissible background norms. It would also provide a framework to test the validity of disputed doctrines and allow them to be more flexible and intuitive.
Although many scholars have studied substantive canons and anti-abuse doctrines separately, this Article connects the two. It also catalogs the substantive tax canons based on existing case law, serving as a resource for future academics, practitioners, and judges.
* Fellow, Classical Liberal Institute, New York University School of Law. I am indebted to Anne Alstott, Ethan Amaker, Ellen Aprill, Joe Bankman, Clint Carpenter, Nicole Collins, Charles Delmotte, Lori Ding, Alyssa Epstein, Richard Epstein, Bill Eskridge, Heather Field, Ari Glogower, Jacob Goldin, Andy Grewal, Lilai Guo, Heather Hedges, Trip Henningson, Kristin Hickman, David Kamin, Mitchell Kane, Young Ran (Christine) Kim, Ariel Kleiman, Nathan Lange, Leandra Lederman, Saul Levmore, David Louk, Alyssa Picard, Katie Pratt, Alex Raskolnikov, Mario Rizzo, Adam Samaha, Dan Shaviro, Aletha Smith, Greg Terryn, Emily Tu, Jacob Victor, Emily Winston, Larry Zelenak, Michelle Zhao, the participants in the NYU Lawyering Scholarship Colloquium, the participants in the 2019 Critical Tax Conference, the participants in the 2019 Law and Society Association Conference, and the editors of the Stanford Law Review, for their insightful comments. All errors, of course, are my own.