Introduction

It is risky, foolhardy even, to contribute an essay on anti-avoidance issues to a collection honouring John Tiley. No one deserves to be honoured more than John, of course, and anti-avoidance doctrine is one of his specialties. But what can I write that he does not already know or that he could not say more elegantly?

In fact, Tiley knows more than I do about everything (except maybe – maybe – baseball), and that includes American tax law. In a project Tiley undertook while visiting Case Western Reserve University in 1985–86, he studied anti-avoidance doctrines developed by US courts. In the resulting trilogy of articles in the British Tax Review, Tiley not only educated British lawyers about US law (and argued against unthinking importation of that law into the UK); he also forced those of us in the colonies to reconsider our instinct that substance should generally trump form. The US and the UK have different views about the relative importance of substance and form, and John was unconvinced that his home country had the worse of the arguments.

In Chapter 3 of this volume, Marty McMahon discusses the evolution of judicial anti-avoidance theory. I will make reference along the way to the judiciary, which has played such an important role in American anti-avoidance jurisprudence, but the focus of this essay is different. I examine statutory and regulatory developments that are changing American anti-avoidance law – with the hope that something here is new to Tiley.