Robert Willens (Robert Willens LLC, New York; Adjunct Professor, Columbia) has published Taxpayer Bound by Form in Which Transaction Cast, 127 Tax Notes 113 (Apr. 5, 2010). Here is the abstract:

Some leveraged acquisitions are structured in a manner designed to enable the acquirer to execute a § 338 election regarding the target. This goal can be thwarted if the acquisition of the target’s stock does not constitute a qualified stock purchase, a designation that may prove elusive if one or more of the target’s shareholders become members of the buyout group by investing in the entity created to accomplish the acquisition. The circumstances under which the IRS will conclude that such an investment will have that effect are unclear, and the case law lacks a unifying theme.

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