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What Would Henry Simons Do?: Using An Ideal To Shape And Explain The Economic Substance Doctrine, Charlene Luke
What Would Henry Simons Do?: Using An Ideal To Shape And Explain The Economic Substance Doctrine, Charlene Luke
Charlene Luke
The law and policy governing tax shelters is incomplete, sometimes contradictory, and occasionally incoherent. Indeed, consensus has yet to emerge even as to which transactions should bear the tax shelter label. Often reform efforts are grounded in theories that are largely external to tax law—for example, economic theory relating to incentives. Fewer approaches rely on intrinsic tax policies, including that most fundamental of income tax principles—the Schanz-Haig-Simons income concept ("H-S"). Under H-S, an income tax base should be expansive, requiring inclusion of an individual's increases in wealth and allowing reductions only for non-personal costs that reduce wealth. This Article seeks …
Risk, Return, And Objective Economic Substance, Charlene Luke
Risk, Return, And Objective Economic Substance, Charlene Luke
Charlene Luke
The economic substance doctrine is a judicial method used to assess transactions suspected of being nothing more than elaborate (and illicit) tax avoidance. Courts vary in their formulation of the doctrine. Generally, the test consists of (1) a subjective inquiry into the taxpayer's motivations for entering the suspect transaction and (2) an objective inquiry into whether the transaction accomplished anything beyond tax effects. Both inquiries frequently revolve around the profit potential of the suspect transaction. In making an objective inquiry into profit, courts focus on the profit potential exclusive of taxes - the pre-tax landscape. This Article suggests that although …