Abstract
This article examines two standard-based approaches. First, in 1995, the Treasury promulgated a general, anti-abuse regulation applicable to all of subchapter K of the Code. Second, in 2010, Congress codified the economic substance doctrine. In both cases, these governmental entities adopted judicially crafted tax doctrines that required transactions to satisfy the tax code's language as well as its underlying purpose; however, Congress' codification and the Treasury's promulgation differed in significant ways. This article explains why Congress got it right, while the Treasury got it entirely wrong. Abusive tax shelters arc not going away; thus the government has powerful reasons to combat tax abuse with any legitimate means it can find. While historically turning to rules, more recently, the Treasury and Congress enacted standards to stem the abuse. The Treasury enacted regulation 1.701-2, the anti-abuse regulation. In doing so, the Treasury crafted a super-sized version of the judicially created tax anti-abuse doctrines, which greatly altered and expanded these doctrines.