Indiana Law Journal Volume 83 | Issue 3 Article 4 Summer 2008 Mergers, Taxes, and Historical Materialism Ajay K. Mehrotra Indiana University Maurer School of Law, [email protected] Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Business Organizations Law Commons, and the Tax Law Commons Recommended Citation Mehrotra, Ajay K. (2008) "Mergers, Taxes, and Historical Materialism," Indiana Law Journal: Vol. 83: Iss. 3, Article 4. Available at: http://www.repository.law.indiana.edu/ilj/vol83/iss3/4 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Mergers, Taxes, and Historical Materialism AJAY K. MEHROTRA* In the last few years, corporate mergers and acquisitions witnessed explosive growth. Although more recent market conditions have halted the latest merger movement, scholars and commentators have used the earlierrise in merger activity to reevaluate the preferential tax treatment granted to those mergers and acquisitions that fall under the U.S. tax law's definition of a corporate "reorganization." Under the current InternalRevenue Code, neither shareholders nor corporations recognize gain or loss on the exchange of stock or securities in transactions that qualify as a "corporatereorganization." The significance of this tax rule raises a central question: why does this tax preference exist? Since its statutory inception in 1919, numerous scholars have debated the theoretical justifications for this tax law. Few, however, have sought to move beyond intellectual and conceptual origins to address the more pertinent question of institutional development: how and why has this tax benefit become a deeply entrenchedpart ofAmerican corporate tax law? This Article mainly addresses this second question. It contends that historically constituted political and economic interests have gradually transformed this law from its beginnings as a limited statutory exception into a modem version of voluntary corporate welfare. This transformationcan be explained less by resort to timeless economic logic or legal doctrine than by reference to the institutional dynamics and the unfolding of concrete economic, political,and socialprocesses. In chronicling the early phases of this gradual transformation, this Article has two interrelatedobjectives. First,it seeks to historicize the prehistory,the statutory origins, and the early liberalizationof this corporate tax law. Second, this Article highlights the chronological and contingent development of the reorganization * Associate Professor of Law, Adjunct Associate Professor of History, Indiana University, Bloomington. Earlier versions of this article were presented at the Harvard Law School's Tax Policy Seminar, the UCLA Law School's Historical Perspectives on Tax Law and Policy Conference, the Alfred P. Sloan/George Washington University Law School Retreat for the Study of Business in Society, and the Indiana University School of Law- Bloomington Faculty Colloquium. The author would like to thank participants at those venues for their critiques and comments. For their suggestions and encouragement on earlier versions of this Article, the author would also like to thank Reuven Avi-Yonah, Jeannine Bell, Joshua Blank, William Bratton, Yariv Brauner, Elliott Brownlee, Nicole Cammarota, Dan Conide, Charlotte Crane, Rob Fischman, Luis Fuentes-Rowher, Mike Grossberg, Bill Hicks, Marjorie Kornhauser, Lisa Lee Siders, Assaf Likvokski, Larry Mitchell, James Motter, Susan Murname, Bill Novak, Ted Seto, Susan Stabile, Kirk Stark, Joe Thorndike, Dennis Ventry, Susan Williams, Larry Zelenak, and especially Steve Bank, Dan Ernst, Dan Halperin, Jeff Kwall, Leandra Lederman, and Bill Popkin who read multiple drafts. For their excellent research assistance, the author also thanks Joel Koerner, James Motter, Charles Persons and Jennifer Winnett Denniston; and for their overall assistance, the author thanks Marian Conaty, Lara Gose, the Indiana Law School librarians and staff, the editors and staff of the Indiana Law Journal, and the archivists at the National Archives and Record Administration and the Library of Congress. The research for this Article was supported by generous funding from the William Nelson Cromwell Foundation's Legal History Research Grant and the Indiana University School of Law-Bloomington's Summer Research Grant. INDIANA LA WJOURNAL [Vol. 83:881 provisions. In examining the historicalprocesses and conditions that led to the early expansion and entrenchment of this tax law, this Article illustrates the contested and provisional nature of the creation, expansion, and maintenance of this corporate tax benefit. This Article mainly investigates two pivotalperiods-the 1920s when this rule was gradually liberalized, and the early 1930s when this tax law faced near elimination-to underscore how material context and historical sequence determined the possibilities of legal change. This historicalstory about the reorganizationtax preference, in the end, is not simply a tale about the evolution of an important and enduring corporate tax law. This narrativeis also a case study of the broaderlegislative process. It shows how a typical legal regime is molded by the interactionsof democratic institutions; how the lawmaking process is shaped by the negotiations among citizens, Congress, the courts, and executive agencies. Accordingly, this historical story illustrates the continuing dynamic that exists between law and society, revealing how the legal process offortifying and routinizing laws can unwittingly create special interests- interests that often reshape and help maintain the laws that have created them. IN TRODUCTION ...................................................................................................... 883 I. THE HISTORIOGRAPHY OF THE CORPORATE REORGANIZATION PROVISIONS 890 II. A BRIEF PREHISTORY OF CORPORATE REORGANIZATIONS ........................... 896 A. The ProgressiveIncome Tax and a New Wave of Corporate R eadjustments ..................................................................................... 897 B. The Early Treasury Department Rulings on CorporateReorganizations ................................................................ 899 Il. WORLD WAR I AND THE STATUTORY FOUNDATIONS OF THE REORGANIZATION R ULE ............................................................................................................ 902 A. The Wartime PoliticalEconomy: Rising Taxes, the Creditor Class, and a new Merger Boom ........................................................................... 903 B. Treasury Department'sAttempt at Coherency ................................... 906 C. The 1918 Act and the InitialReorganization Exception ..................... 907 D. The 1918 Legislative History and the "PurelyPaper" Rationale...... 909 E. Other Explanationsfor the ReorganizationException ....................... 911 IV. THE 1920s AND THE EARLY LIBERALIZATION OF THE REORGANIZATION PROVISION S .................................................................................................. 9 13 A. The Context of PostwarAmerican PoliticalEconomy ....................... 914 B. An Early JudicialInfluence: Macomber and the Inchoate Nature of Tax L aw ..................................................................................................... 9 16 C. Clarifying Ambiguities While Expanding the Exception-The 1921 R evenue A ct ........................................................................................ 9 18 D. JudicialIntervention into ReorganizationLaw: From Phellis to M arr .................................................................................... 92 1 E. Economic Prosperity,Republican Control and the.1924 Act's Comprehensive Revisions................................................................... 924 V. THE NEW DEAL ORDER AND A FAILED ATTEMPT AT REPEAL ...................... 930 A. The Reorganization Rules in the Context of ChangingNew Deal Tax Policy .................................................................................................. 932 B. The Growing Concern over Tax Avoidance and Corporate 2008] MERGERS, TAXES, AND HISTORICAL MATERIALISM Consolidation..................................................................................... 933 C. The Recommendation to Repeal the ReorganizationRules ................ 935 D. The Treasury Department's Warnings Against Repeal ...................... 937 E. OrganizedInterests and the Death of Repeal ..................................... 940 F. The 1934 Act-Another Attempt at Comprehensive Revisions ........... 943 G. HistoricalSequence and the Contingency of Repeal.......................... 946 H. JudicialRe-Intervention into ReorganizationLaw ............................. 948 CON CLU SION .......................................................................................................... 954 [M]odern taxation or tax-making in its most characteristic aspect is a group contest in which powerful interests vigorously endeavor to rid themselves of present or proposed tax burdens. It is, first of all, a hard game in which he who trusts wholly to economics, reason, and justice, will in the end retire beaten and disillusioned. Class politics is of the essence of taxation. -Thomas S. Adams (1928)' INTRODUCTION