Book Outline Section
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Nature of Update
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Location for current editions
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Ch. 2 ¶ 1.B., Statutes and their Meanings
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Introduce common law doctrines of statutory interpretation - business purpose, form over substance and economic substance
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Student Ed. P. 37
Practitioner Ed. p. 42 (immediately before C. Committees and Committee Reports) |
Finally, tax statutory interpretation includes applying the text in the light of certain precepts that inhere in the scheme of taxation that Congress adopted. Students of tax law will already have heard
concepts, often called tax common law doctrines, such as the business purpose
doctrine, form over substance, and economic substance, which inform the
application of the statute even when the statutory text says nothing about
those concepts. n. 33a
n. 33a In Santander Holdings United States v. United
States, ___ F.3d ___, 2016 U.S. App. LEXIS 22400 (1st Cir. 2016), the Court
said:
The
federal income tax is, and always has been, based on statute. The economic
substance doctrine, like other common law tax doctrines, can thus perhaps best
be thought of as a tool of statutory interpretation, n8 as then-Judge Breyer
characterized it in his opinion for this court in Dewees v. Commissioner, 870
F.2d 21, 35-36 (1st Cir. 1989).
n8 As one
commentator says:
A
related . . . claim is that the legislature assumes that long-standing common
law doctrines such as economic substance will be used to interpret the statutes
it enacts. Under this claim, the doctrines have been implicitly adopted as part
of the statute -- at least where the statute does not indicate otherwise.
Joseph
Bankman, The Economic Substance Doctrine, 74 S. Cal. L. Rev. 5, 11 (2000).
Caveat, the footnote numbers above are based on the footnote numbers in the current
Practitioner Edition. The footnote
numbers will not be the same in the next Edition scheduled for publication in
August 2017.
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