Emory Law Journal
David Hasen, Unwinding Unwinding, 57 Emory L.J. 871 (2008), available at https://scholar.law.colorado.edu/articles/299.
"Unwinding" is a common, if not ubiquitous, feature of tax practice. In a successful unwind, parties to a prior transaction or arrangement back out of it by means of a later transaction and are treated for tax purposes as having engaged in no transactions at all. In a failed unwind, the parties undertake the later transaction, but it is not treated as nullifying the effects of the first transaction; rather, two separate transactions are deemed to have taken place, each with its own tax consequences.
This Article develops the first unified theoretical framework for analyzing tax unwinding. It also provides an organizing principle applicable to other kinds of corrective action that individuals or the government may undertake in the income tax context. These types include equitable recoupment, the tax benefit rule, and the claim of right doctrine. Each involves resolution of a different kind of excusable inconsistency in taxpayer or, sometimes, government conduct. In the case of unwinding, the inconsistency arises between the taxpayer's understanding of the circumstances in which she acts and the circumstances as they actually are; it concerns the possible efficacy of a chosen action to realize an end the taxpayer seeks to achieve. In some such cases, unwinding relief may be appropriate, but it is usually appropriate only where the relevant taxes are themselves transactionally based. In the non-transactional tax context, more stringent requirements apply to the nature of the taxpayer's error, and administrative considerations militate against an expansive unwinding doctrine.
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