Fordham Law Review
Sloan G. Speck, The Social Boundaries of Corporate Taxation, 84 Fordham L. Rev. 2583 (2016), available at https://scholar.law.colorado.edu/articles/5.
Historically, the tax law distinction between corporate and conduit treatment drew primarily on doctrinal understandings, treating state-law corporations as corporate for tax purposes and classifying unincorporated legal entities based on their resemblance to conventional state-law corporations. More recently, commentators and Treasury have abandoned these doctrinal touchstones in favor of efficiency, broadly construed, as the guiding principle in determining an entity’s tax classification. This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment. First, classical corporate taxation is, in many ways, deeply embedded within a larger network of legal and social meanings. Classical corporate taxation operates in concert with, rather than separately from, these legal and social meanings. For this reason, the rules governing entities’ tax classification should take these interrelationships into account, if not as a primary norm, then as a secondary consideration when empirical or other uncertainties preclude a clear choice based on efficiency. The social boundaries of corporate taxation refer to the extent to which these types of nontax considerations implicate the Code’s structural distinction between corporations and conduits. Second, efficiency is often conceptually tractable as a metric, but this intuitive appeal can mask significant empirical uncertainties about behavioral responses, especially if policymakers possess limited information, have difficulty reversing inapposite decisions, or face other constraints. In these situations, policymakers should take cues from the broader legal and social context in which tax law operates. Finally, by claiming that corporate tax law is situated in broader legal and social contexts, this Article does not attempt to validate or valorize the independent merit of these other contexts. Instead, this Article advocates consistency across policy areas — “fit” within the broader legal and social framework — rather than particular policy prescriptions.
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