Tax Shelters: Finding Fundamental
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Corporate tax avoidance has been on the upswing by most ac
counts, though there are no firm estimates of the magnitude of these
activities. The upswing has been spurred by sophisticated tax planning
made possible by advanced computers and software, Wall Street fi
nancial innovation, global competitive pressures, and the high U.S.
corporate tax rate. The increase in tax avoidance has been costly in
time and money for both companies and the government. Accounting
and Wall Street firms have developed high levels of expertise at
combining disparate parts of the tax code to engineer tax savings. But
that expertise costs money: tax shelter promoters have been paid as
much as $25 million for a single deal (U.S. Treasury 1999: vi, 23).
Enron paid $88 million for advice on 12 tax shelter deals between
1995 and 2001 (JCT 2003a:107). For the government, it can cost $2
million just to litigate a single tax shelter case (U. S. Treasury 1999: v).
The Internal Revenue Service, U. S. Treasury, and courts are kept
busy as each new tax shelter is discovered and then squelched
through statutes, regulations, enforcement, and litigation. In 1999, a
major Treasury Department study on tax shelters noted that at least
30 new narrow provisions had been added to the tax code in the prior
few years in response to particular abuses (U. S. Treasury 1999: iv).
These new rules in turn force taxpayers and their advisers to abide by
growing lists of anti-abuse statutes, penalties, reporting requirements,
and disclosure rules.
One might think that these wasteful efforts could be reduced if
corporations simply stopped acting improperly. But there is usually
no clear-cut right or wrong in the income tax avoidance cat-and
mouse game. Most corporate tax disputes involve different interpre
tations of the rules, not straightforward cheating. Many issues are so
gray that tax disputes between companies and the IRS can remain
unsettled for 10 years or more.
Given this level of legal uncertainty, companies have strong incen
tives to push the tax code’s limits. After all, no taxpayer has an obli
gation to pay more than what is owed, and the government cannot tell
them for sure what an illegal tax shelter is. One expert noted that
“virtually all tax shelters comply with the literal language of a relevant
(and perhaps the most relevant) statute, administrative ruling, or
case” (Bankman 1999: 1775). With regard to Enron tax shelter ac
tivities, then JCT chief of staff, Lindy Paull, testified,“I don’t know if
you could call it illegal”(Behr 2003: E1).
There is debate regarding the best way to crack down on tax shel
ters from a legal point of view. Some experts support more detailed
rules, while others support stronger general standards. Ultimately, a
large and sustained reduction in tax sheltering can be achieved by
changing fundamental economic incentives, not by adding endless
layers of new rules. The U.S. Treasury (1999: 6, 9) noted that tax
“shelters typically rely on some type of discontinuity in the tax law that
treats certain types or amounts of economic activity more favorably
than comparable types or amounts of activity.”For example, the tax
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