Tax research methodology for untested legislation: An exemplar for the tax scholar

Abstract

Tax scholars using typical doctrinal and reform-oriented methodologies often struggle to articulate the process undertaken in their research and at the same time, these methods often require an analysis of legislation that has already been the subject of judicial inquiry. However, this raises the challenge of what method to employ in the absence of such judicial inquiry. The tax environment has become so dynamic that law reform occurs rapidly and the law has to be researched, in the absence of case law post legislative amendment. This article provides tax scholars with a methodological approach described as a structured pre-emptive analysis that overcomes this problem (in other words an adaptation of typical doctrinal reform-oriented approaches). Using an exemplar of an actual tax law problem, the paper demonstrates how to conduct rigorous research in the absence of case law dealing with legislation that is the subject of enquiry. The article makes two contributions. First, it gives transparency to the traditional doctrinal reform-oriented methods primarily used in law. Second, it illustrates a method that can be used to overcome the absence of case law.