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NEW YORK CITY-The 2010 Health Care Act contains a provision codifying the economic substance doctrine into the tax law and imposing severe penalties for violations. The economic substance doctrine has existed for decades; it is invoked by courts to disallow tax benefits for transactions whose only purpose is avoiding tax. The doctrine generally was invoked when a transaction followed the literal rules of the tax law but the results were far outside of the “spirit” of the law—it was one of the IRS weapons in fighting tax shelters. Codification has been proposed for years, but was opposed by tax professionals who believed that the current regime worked.

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