What We Talk About When We Talk About Tax Shelters

Authors

Lawrence A. Zelenak, Duke Law SchoolFollow

Document Type

Article

Publication Date

2023

Abstract

This Response to Jonathan H. Choi’s recent Article, Beyond Purposivism in Tax Law, endorses Choi’s preference for purposivist approaches to the interpretation of tax statutes, but notes and explains three areas of disagreement. First, this Response proposes a different definition of a tax shelter, under which the “puzzle” motivating Choi’s analysis disappears. Second, this Response explains how an inductive approach to tax shelter analysis can produce important insights likely to be missed by Choi’s preferred deductive approach. Finally, this Response criticizes Choi’s conclusion that “the normative [policy] preferences of tax experts” should prevail over legislative intent; this Response instead urges a via media, which would give considerable weight to the normative preferences of experts, yet avoid Choi’s elevation of the views of unelected experts over those of an elected Congress.

Citation

Lawrence A. Zelenak, What We Talk About When We Talk About Tax Shelters, 108 Iowa Law Review Online 130-143 (2023)