Benjamin Silver (Davis Polk, New York; Ph.D. 2024, Chicago; J.D. 2021, Yale), Tax-tualism, 111 Minn. L. Rev. ___ (2027):
Textualism has long bedeviled tax law. Many longstanding tax anti-abuse doctrines lack clear textual footing and therefore appear vulnerable in an era that prioritizes statutory text. This threat has sharpened in the wake of Loper Bright Enterprises v. Raimondo, which requires courts to determine the best reading of statutes and limits agency discretion. The problem is this: Will textualism undo tax law’s functionalist foundation?
This Article argues that the conflict between textualism and federal income tax law is overstated. It develops a method of interpreting the Internal Revenue Code—“tax-tualism”—that is rooted in textualism but harmonizes with tax law’s anti-abuse foundations. Tax-tualism’s core insight is that the unusual statutory history of the Code is especially susceptible to application of the reenactment canon. According to this canon, when Congress reenacts statutory language without significant change, it places the settled interpretation of the statute into positive law. Because the Code has been repeatedly reenacted, application of the reenactment canon is indispensable to any textualist approach to tax law.
In addition, the Article elaborates on the reenactment canon in the tax context, arguing that judicial interpretations, including those of the Tax Court, are central to determining settled meaning, though administrative pronouncements are not. It further contends that reenactment incorporates settled interpretations whether or not those interpretations were textually justifiable.
As a case study, the Article applies tax-tualism to the so-called “judicial requirements” of tax-free corporate reorganizations. It concludes that tax-tualism saves two out of the three. In doing so, the Article demonstrates that many classic anti-abuse doctrines already survive on textualist terms as positive law, without resort to purposivism or administrative deference, thus preserving tax law’s structural integrity.
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