Monday, June 6, 2011
Codification of the Economic Substance Doctrine in 2010 – after years of controversy about whether codification was actually desirable – has generated a very substantial body of professional commentary, chiefly aimed at determining what the effect of the new provision is likely to be. Does the new Code section, § 7701(o), narrow the scope of traditional “tax planning” or do the planning maneuvers relied on in the past continue to be fully reliable? The question gains urgency from the addition of a penalty provision that is automatic in application and that tops out at 40% of understated income where the understatement is the consequence of an ESD infraction. Reactions by practitioners appear below.
- Michael Schler (Cravath, Swaine & Moore, New York), Thoughts on the Economic Substance Doctrine
- David Hariton (Sullivan & Cromwell, New York), Has Codification Changed the Economic Substance Doctrine?
- Peter H. Blessing (Shearman & Sterling, New York), Codified Economic Substance Doctrine