Jasper L. Cummings, Jr. (Alston & Bird, Raleigh, NC) has published Economic Substance Doctrine Felonies, 131 Tax Notes 977 (May 31, 2011). Here is the abstract:

The economic substance doctrine is so obscure that Congress has been unable to define when it applies and what exactly it is. Treasury and the IRS refuse to give any indication of when they will assert it, and tax professionals have spent untold hours in continuing legal education programs in which the best-informed experts search for clarity. However, the Justice Department and federal courts, particularly the Second Circuit, are sure that they know economic substance when they see it, and are directing juries to convict lawyers of criminal tax evasion if the lawyer knew the transaction had no business purpose or profit potential.

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