Tax Update Blog: Permalink

« Previous · Tax Update Blog Home · Next »

MORE ON MIERS AND TAX SHELTERS

October 12, 2005

Law Prof and blogger Vic Fleisher takes issue with fellow prof-blogger Stephen Bainbridge's "casual dismissal" of the tax shelter opinions written by Harriet Miers's law firm while she was co-managing partner. He says the opinions raise concerns about her judgment and and approach to statutory interpretation:

Fleisher on judgement:

Miers' alleged success as a lawyer -- co-managing partner, president of the state bar, White House counsel, etc. -- is not about her legal ability. It's about her apparent success as a manager of other lawyers. But even if we are now judging the merits of potential Supreme Court Justices based on her ability to manage rather than her ability to think and write about legal issues, Miers may fail on this sorry metric as well. Miers either was or should have been aware of her firms' involvement in the tax shelters, and she should be called on to explain her failure to act.

Fleisher on approach:

The tax shelters provide a nice window into the problem. As once explained by Taxprof Joe Bankman, there is a split among tax professionals. Some of us, mostly the tax elitists and the older generation of tax professionals, prefer to interpret statutes with purpose in mind. And we frequently look to non-literal interpretations of the Code (business purpose doctrine, step transaction, economic substance doctrine, etc.) as a necessary part of tax practice. Others, especially the younger generation and those trained by or sharing ideologies with the Scalia school of statutory interpretation, prefer the plain meaning approach. They tend to read the Code literally, and see nothing particularly wrong with tax shelters. In the two instances we have seen (the CDS shelter and the Rainbo Club property) Miers seems to have voiced no concern about a literal interpretation of the Code.

His post raises a lively debate in his comments section, including a discussion of what knowledge a firm managing partner will have about the firm's lucrative tax shelter practice.

It's not clear that the CDS shelter, the subject of Ms. Miers's firm's opinions, is a "literal" statutory interpretation; "optimistic," "creative" or "wishful" may be more appropriate. Ms. Miers is likely to face questions on these issues before she dons a Supreme Court robe.

Hat tip: the TaxProf

Link: Complete Tax Update Miers coverage.

 • Tax Shelter News       Bookmark: del.icio.us • Digg • reddit