Twelve full years have elapsed since section 38 property made its first appearance on the stage of tax law. In those twelve years, a complicated, confusing, ad hoc, and often inconsistent body of rulings and judicial decisions has grown up around the definitional regulation; words and phrases have acquired strange new meanings and connotations in the lush overgrowth of legal reasoning clinging to that regulation. The paradoxes in the regulation (such as that addressed in Weirick) and, more often, the ambiguities resulting from an almost universal failure by the regulations to define, instead of simply illustrate, its terms (such as "inherently permanent structure," "structural component," "building," and the rest) perhaps make inconsistency in and confusion over interpretation inevitable. Nevertheless, it is submitted that the practitioner, the Service, and the courts could bring some order into the chaos of section 38 property by developing and consistently applying a single methodology of analysis, such as the tripartite consideration of form, function, and permanence suggested herein, which would provide an underlying foundation of logic and common sense for the area in which such a foundation heretofore has been sorely missed.
J. A. Cragwall, Jr.,
The Great Section 38 Property Muddle,
28 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol28/iss5/3