Will the Economic Substance Doctrine Get Lost in the Woods? (Amicus Brief)

Abstract

This fall, the Supreme Court will hear oral arguments in U.S. v. Woods, a tax case involving complex jurisdictional and penalty issues that no emotionally healthy person should take an interest in. But behind those issues lie important questions about the substance doctrine, which involves the allocation of lawmaking authority between the legislature and the judiciary.This amicus brief, submitted in support of neither party, informs the Court about the issues hiding in this case. It urges the Court to take a cautious approach in deciding Woods -- the phrase economic substance has never appeared in a Court opinion, so the tax bar and government attorneys will pay close attention to anything the Court says here. And although Congress partially codified the substance doctrine in Section 7701(o), that statute expressly leaves it to the courts to determine when the doctrine is relevant. Woods could very well provide guidance on that fundamental question, and the brief makes the Court aware of the critical issues.Although this brief is directed to the Justices, anyone interested in how Woods might affect the substance doctrine may find it useful. Also, the brief suggests a potential due process challenge to the new statutory substance penalty, which may interest practitioners.