Substance Over Form in Transfer Tax Adjudication

Authors

Richard Schmalbeck, Duke Law SchoolFollow
Jay A. Soled

Document Type

Article

Publication Date

2022

Keywords

estate tax, substance over form

Abstract

The elevated exemption level under the federal transfer tax system (now in excess of $24 million for a married couple) has opened up new and abusive tax-avoidance opportunities. In many areas of the tax law, the substance over form doctrine historically has been effective in controlling such abuses; however, for a myriad of reasons, transfer tax jurisprudence has been marred by the reluctance of courts to embrace this doctrine. In this analysis, we urge reconsideration of that posture.

Citation

Richard Schmalbeck & Jay A. Soled, Substance Over Form in Transfer Tax Adjudication, 55 Loyola of Los Angeles Law Review 609-643 (2022)