Karen C. Burke (San Diego) presents Black & Decker’s Contingent Liability Shelter: "A Thing of Grace and Beauty"? today at Northwestern as part of its Tax Policy Colloquium.  Here is the abstract:

The recent district court decision in Black & Decker v. United States has been heralded as a major setback for the government’s litigation of contingent liability shelters. This article seeks to explain what happened in Black & Decker based on a close reading of the parties’ briefs and other publicly available documents. A fuller understanding of the case suggests that the district court’s October summary judgment for the taxpayer should be reversed by the Fourth Circuit on appeal, and that the government has persuasive statutory arguments that have yet to be decided on the merits. The Black & Decker decision also sheds light on the challenges faced by generalist district courts in attempting to deal with tax shelter transactions that are purposefully designed to exploit ambiguous statutory language. The article flows from the author’s study of the Supreme Court’s Hendler decision, which will appear in a forthcoming book, Business Tax Stories (Foundation Press, Bank and Stark, eds.).