Recent UW Law Faculty Publication

Scott A. Schumacher, MacNiven v. Westmoreland and Tax Advice: Using “Purposive Textualism” to Deal with Tax Shelters and Promote Legitimate Tax Advice, 92 Marq. L. Rev. 33 (2008). In this article UWLS Professor Scott Schumacher analyzes recent legislative and regulatory changes to the standards applicable to tax advice which are aimed at stopping abusive tax shelters. What is in a standard? As a tax advisor, does your position meet the standard of “more likely than not” to succeed? Or the newer “realistic possibility of success”? As Professor Schumacher notes, the “government’s desire to ‘do something’ about the tax shelter problem is understandable. However, in attempting to fix the shelter problem, Congress and the Treasury should not make legitimate tax advice and legitimate tax planning more difficult.” Indeed, he argues for another standard – “purposive textualism” adapted from a British House of Lords’ opinion (MacNiven).