Paul L. Caron

Friday, October 20, 2006

NY Times on Patenting Tax Strategies

Interesting article in today's New York Times:  You Can’t Use That Tax Idea. It’s Patented., by Floyd Norris:

As the American tax law gets more and more complicated, lawyers have come up with one more way to make life difficult for taxpayers: Now you may face a patent infringement suit if you use a tax strategy someone else thought of first.

“I can’t even imagine what it will be like in 5 or 10 years,” said Dennis B. Drapkin, a tax lawyer with Jones Day in Dallas, “if anytime a lawyer or accountant gives tax advice, they have to find out if there is a patent on this.” He notes that researching patents, and then licensing them, would just make tax compliance more costly....

Why would Congress pass a law allowing such a thing? The answer is that it did not. But a federal appeals court ruled in 1998 that business methods can be patented, and since then the Patent Office has issued 49 tax-strategy patents, with many more pending.

For prior TaxProf Blog coverage, see:

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Tracked on Oct 21, 2006 5:49:25 AM


I predict congress will allow tax patents, because doing so will lead to an increase in tax revenue. It will increase tax revenue because:

1. Fewer people will use tax reduction strategies, because of the cost of paying for the patent. Reduced use of tax reduction strategies will lead to increased tax revenue.

2. The income earned on the use of the patent is taxable. Thus the use of a patented tax reduction strategies provides greater tax revenue than the unpatented use of this strategy.

3. Of course, if this law leads to creation of tax strategies which would not have been created without the patent law, then the revenue lost as a result of these new tax strategies could be greater than the revenue gained from items 1 and 2. However, in my opinion, I don't think this law will lead to greater innovation of tax strategies.

Ms. Ellen Aprill, in her July 13, 2006 testimony to congress seemed to predict a reduction in tax revenue, (quote below) but didn't explain why.

"If tax strategy patents and their use proliferate, encouraged by the marketing advantages conferred by patents’ government-granted monopoly and presumption of validity, many tax lawyers anticipate that there will be a corresponding reduction in federal tax revenues, generating revenue losses that would have to be made up from other sources."

From (page 7)

Posted by: AM | Oct 21, 2006 12:28:44 PM