Wednesday, November 17, 2021
Jonathan Choi (Minnesota; Google Scholar) presents Beyond Purposivism in Tax Law at UC-Irvine today as part of its Tax Policy Colloquium:
Conventional wisdom holds that purposivist theories of statutory interpretation solve the problem of tax shelters, because shelters comply with the text but not the purpose of tax statutes. But the predominant form of purposivism in tax scholarship, which combines specific statutory purposes with general structural principles of tax law, cannot separate shelters from ordinary tax planning. Although tax shelters claim benefits that exceed specific purposes and do not align with objective general principles, so do some widely accepted tax strategies.
This Article therefore proposes a new framework to go beyond purposivism in tax law, complementing purposivist techniques with pragmatism or doctrinalism. Pragmatism applies explicit policy judgments when statutory purposes run out; doctrinalism applies rules, like canons of construction, that provide determinate answers when statutory purpose is ambiguous. Pragmatism generally leads to better results in any particular case, while doctrinalism provides taxpayers certainty in planning legitimate transactions.
This Article lays out how the pragmatic and doctrinalist approaches ought to apply, and when. The ideal compromise is a hybrid: agencies should primarily apply pragmatic purposivism in ex ante guidance, while agencies and courts should primarily apply doctrinalist purposivism in ex post adjudication. The ex ante/ex post split comports with existing administrative and common law, and it suits the relative strengths of agencies and courts. Ultimately, it gives interpreters the flexibility to deal with pernicious, sophisticated modern tax shelters.