In Defense of Tax Shelters‪.‬

I. INTRODUCTION Tax shelters do not have many defenders. The lawyers who have to defend them on behalf of a client tend to simply appeal to the court's duty not to engage in law-making. Often that will win the case, but it does not help with the policy question that centers on what the law-maker, rather than the court, ought to do. Ought he, for instance, to go after tax shelters with expansive anti-abuse rules? Ought he to treat all exclusively tax-motivated transactions as the exploitation of a loophole that should be closed, where practicable--if not through anti-abuse rules, then by more detailed legislation specifically banning the offending transaction? The prevailing answers to both questions I take to be "yes" and "yes." In this article I will argue for "no" and "no."