Today's seventh Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Normative Analyses of Tax Doctrines:

What constitutes an unacceptable tax position? Scholars on this panel will discuss the general problem of tax shelters, some doctrines to fix it, and some specific issues of personal taxation that may actually not be "abusive" if viewed in the appropriate light.

Linda McKissack Beale (Wayne State) (Chair/Discussant)

• Lilian Faulhaber (Harvard), Wholly Artificial Arrangements: The Anti-Avoidance Doctrine of the European Court of Justice:

Although direct taxation in the European Union is reserved for Member States, the European Court of Justice has recently developed its own anti-avoidance doctrine. This doctrine, which this paper introduces and defines as the “wholly artificial arrangements doctrine,” is a judicial creation that sets the outer limits of permissible tax avoidance within the European Union. Unlike anti-avoidance doctrines in other jurisdictions, however, the wholly artificial arrangements doctrine has been created and applied by a supranational court and serves to constrain domestic measures meant to police tax avoidance. Although taxpayers attempting to avoid taxation may support the creation of this doctrine, since it makes avoidance less likely to be policed, the doctrine poses significant problems to law-abiding taxpayers and Member States alike. From the point of view of taxpayers, this doctrine is likely to lead to less respect for the tax system, lower tax revenues in Member States, and unpredictability as to the level of avoidance permitted within the European Union. From the point of view of Member States, this doctrine raises even greater concerns, in that the European Court of Justice is creating a legislative vacuum in the area of anti-avoidance law. Since no European Union institution is empowered to police tax avoidance without unanimous support of the Member States, European taxpayers and Member States alike are thus left in a world of greater tax avoidance, lower tax revenues, and no ability to overcome these problems.

• Kristin E. Hickman (Minnesota) & Claire Hill (Minnesota), Is a Coherent Definition of Tax Shelter Impossible?:

This project considers the tax shelter problem by (1) highlighting a lack of consensus surrounding the Internal Revenue Code’s relevant core principles and (2) arguing that, in light of this lack of consensus, the Internal Revenue Code’s method of combating tax shelters through specific rules/prohibitions and residual anti-abuse rules undermines the theoretical legitimacy and coherence of tax shelter regulation.

• Reginald Mombrun (North Carolina Central), Should Congress Follow through on Codifying the Substance over Form Doctrine?:

The most complicated provisions of the Code apply to all taxpayers, including those of low and moderate incomes. Among those provisions are the credit provisions, some of which provide refundable credits. Taxpayers of low or moderate incomes are the least likely of taxpayers to obtain good advice and help in completing their returns. Yet, after receiving their refunds, they are also the most likely to be audited and to have to return their refunds plus penalties and interest. For many, this begins a process of ever increasing liabilities that can only be settled with the help of tax professionals who can aid in obtaining an offer in compromise or an installment agreement.

• Toni Robinson (Quinnipiac), Give Credit Where Credit Is Due: How the Tax Credit System Confounds Many Taxpayers and What We Can Do About It:

The most complicated provisions of the Code apply to all taxpayers, including those of low and moderate incomes. Among those provisions are the credit provisions, some of which provide refundable credits. Taxpayers of low or moderate incomes are the least likely of taxpayers to obtain good advice and help in completing their returns. Yet, after receiving their refunds, they are also the most likely to be audited and to have to return their refunds plus penalties and interest. For many, this begins a process of ever increasing liabilities that can only be settled with the help of tax professionals who can aid in obtaining an offer in compromise or an installment agreement.