Development of the Concept of Economic Substance in the United States

Abstract

An important challenge of the modern tax law is efficient countering of tax avoidance. One of the ways of tackling this problem is investigating and examining of taxpayers’ activities from the perspective of their economic substance. Especially interesting from this perspective seem the American judicial doctrines, in particular the economic substance doctrine and the business purpose doctrine. An analysis of the abovementioned doctrines indicates that the concept of economic substance should be interpreted in the context of a change (improvement) of the taxpayer’s economic/financial/commercial situation resulting from something more than an obtained tax benefit. Such change (improvement) of the taxpayer’s situation may be analyzed from two perspectives – objective and subjective. The objective perspective concentrates on an actual change (improvement) reflected in the amount of income generated by the taxpayer. On the other hand the subjective perspective concentrates on the taxpayer’s belief that the undertaken actions were aimed at the realization of a specific business goal (generation of profit). The objective perspective as not requiring a judgement of the taxpayer’s motives (intentions) seems however more measurable and thus more feasible to apply in practice.