The Tax Treatment of Computer Software

Jeffrey A. Maine (Maine) & Xuan-Thao Nguyen (SMU), Taxing Facebook Code: Debugging the Tax Code and Software, 60 Buff. L. Rev. ___ (2012):

This article sets out to analyze both intellectual property laws and tax systems as applied to computer software. It analyzes software within intellectual property's established doctrinal framework, a difficult task due to the fact that software can encompass some combination of the traits of copyrights, trade dress, patents, and trade secrets. It then examines both the federal and state tax systems governing software. It shows that fitting software within current tax schemes presents unique challenges, as software contains both tangible and intangible elements, is subject to varying intellectual property protections, and can be delivered through various media. The article argues that there are a number of incongruous tax distinctions for software that are theoretically and analytically unsatisfactory. The article also points out certain flaws in the design of several tax preferences for software.