Jonathan Choi (Minnesota; Google Scholar) presents Past Purposivism In Tax Legislation at Boston Faculty right this moment as a part of its Tax Coverage Collaborative hosted by Jim Repetti, Diane Ring & Shu-Yi Oei:
Typical knowledge holds that purposivist theories of statutory interpretation clear up the issue of tax shelters, as a result of shelters adjust to the textual content however not the aim of tax statutes. However the predominant type of purposivism in tax scholarship, which mixes particular statutory functions with normal structural rules of tax regulation, can’t separate shelters from unusual tax planning. Though tax shelters declare advantages that exceed particular functions and don’t align with goal normal rules, so do some broadly accepted tax methods.
This Article subsequently proposes a brand new framework to transcend purposivism in tax regulation, complementing purposivist strategies with pragmatism or doctrinalism. Pragmatism applies specific coverage judgments when statutory functions run out; doctrinalism applies guidelines, like canons of development, that present determinate solutions when statutory goal is ambiguous. Pragmatism usually results in higher ends in any specific case, whereas doctrinalism supplies taxpayers certainty in planning professional transactions.
This Article lays out how the pragmatic and doctrinalist approaches ought to use, and when. The perfect compromise is a hybrid: companies ought to primarily apply pragmatic purposivism in ex ante steerage, whereas companies and courts ought to primarily apply doctrinalist purposivism in ex put up adjudication. The ex ante/ex put up break up comports with current administrative and customary regulation, and it fits the relative strengths of companies and courts. Finally, it offers interpreters the flexibleness to cope with pernicious, refined trendy tax shelters.