Virginia Tax Review
The topic of federal patent protection for tax planning strategies has received considerable recent attention, much of it from a tax bar whose overall incredulity concerning the patentability of tax advice has been transformed into anxiety and disgust by the prospect of infringement actions. In their article Patents, Tax Shelters, and the Firm, Dan Burk and Brett McDonnell approach the subject from a broader perspective by employing theory of the firm principles to evaluate the effects of stronger intellectual property protection in the tax planning arena. While conceding that the possible effects are complex and ambiguous, the authors predict that the introduction of business method patents in the tax planning industry will lead to enhanced mobility in the labor market for tax professionals, to an increase in the creation of tax planning strategies, and to a degree of disintegration within the tax planning community as firms become more specialized.
For the most part, I am less sanguine about the dawn of patents in the tax planning arena. This commentary on Burk and McDonnell's article therefore is offered in the nature of a counterpoint. I begin by addressing an issue to which Burk and McDonnell do not devote a great deal of attention, as it is not central to their analysis: whether innovation in tax planning is socially desirable. I draw on prior scholarship in the tax-shelter context to demonstrate that tax planning creates deadweight loss to society through distortions in taxpayer behavior and transaction costs that do not contribute to the public fisc. I then argue that such deadweight loss likely will be significantly increased if temporal monopolies on tax-planning strategies were conferred through the patent system. Next, I offer competing speculation concerning the effects that patentability will have on innovation in tax planning, positing that the ability to patent a tax strategy will not lead to a marked increase in the quality of tax advice and may actually cause it to decline. In keeping with the theme of the symposium, I contend that the ability to patent a tax strategy would not have a meaningful impact on the market in abusive tax shelters, as the success of the shelter industry depends on completing as many transactions as possible before the shelter draws the attention of the Service. Purveyors of these transactions thus will avoid the public disclosure associated with patent protection, and the field of patented tax strategies likely will be relegated to more traditional, conservative planning. I close by highlighting the potential decrease in client mobility that will come at the expense of the increased mobility of tax advisors that Burk and McDonnell predict.
Brant J. Hellwig, Questioning the Wisdom of Patent Protection for Tax Planning, 26 Va. Tax Rev. 1005 (2007).