Thursday, July 07, 2016

The academy [or at least some members of it] fights back, part 2

In a recent blog post, I mentioned that I am among 25 legal academics who recently signed either of two amicus briefs that were filed with the Ninth Circuit in the appeal of the Tax Court's Altera decision.  As I noted in that post, even apart from the merits of the particular issues, our decisions thus to express ourselves (when there are plenty of other demands on one's time) reflected - at least in my case - "realiz[ing] that a whole lot of money has been flowing into challenging Treasury regulations ... and that no one with money to spend has an incentive to support the government's side."  This can create a dangerous imbalance in both the judicial process and the political process.

That consideration also influenced my decision to sign two comments that multiple law professors recently submitted to the Treasury Department, expressing support for two proposed regulations that were recently issued under Code section 385 in the context of inversion transactions.  This comment addresses the recent proposed rule that would recharacterize certain related party debt as equity.  This one addresses the so-called "serial inverter" rule, affecting companies that engage in multiple inversion transactions over a three-year period.

The analysis in these comments is terser than that in the amicus briefs, reflecting the difference between the two contexts.  But I suspect that few of the other comments that end up being submitted, with regard to these regulations, will set forth, as we do, the grounds for believing that the rules at issue both serve important policy goals and are within the Treasury's authority.

1 comment:

Susan Morse said...

I signed the letters for the same reason Dan did. Agree.