Questioning the Wisdom of Patent Protection for Tax Planning‪.‬

I. INTRODUCTION The topic of federal patent protection for tax planning strategies has received considerable attention of late, (1) 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. (2) In their article Patents, Tax Shelters, and the Firm, (3) 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. (4)