February 28, 2007
The Honorable Max Baucus The Honorable Charles Grassley
Chairman Ranking Minority Member
Senate Committee on Finance Senate Committee on Finance
United States Senate United States Senate
219 Dirksen Senate Office Building 219 Dirksen Senate Office Bldg
Washington, D.C. 20510 Washington, D.C. 20510
The Honorable Charles B. Rangel The Honorable Jim McCrery
Chairman Ranking Minority Member
House Committee on Ways House Committee on Ways
and Means and Means
1102 Longworth House Off Bldg 1102 Longworth HOB
Washington, D.C. 20515 Washington, D.C. 20515
Re: Patents for Tax Strategies
Dear Chairman Baucus, Chairman Rangel, Senator Grassley, Representative McCrery:
The American Institute of Certified Public Accountants (AICPA) believes that patents for tax strategies undermine the integrity, fairness, and administration of the tax system and are contrary to sound public policy. We would like to work with you to develop and enact legislation to restrict this type of patent as soon as possible.
The AICPA is the national professional association of approximately 350,000 Certified Public Accountants throughout the country. We have worked closely with Congress and taxing authorities for many years to ensure equity, fairness and simplicity in our tax system. Our members play a major role helping millions of individual taxpayers and businesses, located in every state in the United States, to comply with federal, state and local tax law. The AICPA and our members have extensive experience in rendering advice to taxpayers on matters of tax planning and compliance. From this unique vantage point, we have considered the broad impact of tax strategy patents on taxpayers, professional tax advisers, and the public interest.
EXECUTIVE SUMMARY
In our view, patents granted for tax strategies:
· Limit the ability of taxpayers to utilize fully interpretations of tax law intended by Congress;
· May cause some taxpayers to pay more tax than Congress intended and may cause other taxpayers to pay more tax than others similarly situated;
· Complicate the provision of tax advice by professionals;
· Hinder compliance by taxpayers;
· Mislead taxpayers into believing that a patented strategy is valid under the tax law; and
· Preclude tax professionals from challenging the validity of tax strategy patents.
DISCUSSION
Our concern is with patents for methods used by taxpayers in arranging their affairs to minimize tax obligations. Patents on tax strategies may limit the ability of taxpayers to utilize fully interpretations of the law intended by Congress. As a result, they thwart Congressional intent and thus undermine the integrity of, and the public’s confidence in, the tax system. They also unfairly cause some taxpayers to pay more tax than intended by Congress and cause some taxpayers to pay more tax than others similarly situated. The conflict with Congressional intent highlights a serious policy reason against allowing patent protection for interpreting the law. Allowing patents on strategies for complying with any law or regulation is not sound public policy because it creates an exclusivity on interpreting the law.
We are concerned as well with simplicity and administration of tax law. Tax strategy patents greatly complicate tax advice provided by tax professionals and compliance by taxpayers, both of whom need to understand the impact of such patents on their ability to comply with the tax law. Tax law is already quite complex. The addition of rapidly proliferating patents on tax planning techniques and concepts will render tax compliance much more difficult.
Patents are granted by the federal government, posing a significant risk in the case of tax strategy patents. Taxpayers may be misled into believing that a patented tax strategy bears the approval of other government agencies, such as the IRS, and therefore is a valid and viable technique under tax law. This is not the case.
Furthermore, tax professionals may be unable as a practical matter to challenge the validity of tax strategy patents as being obvious or lacking novelty, or to defend themselves from patent infringement lawsuits because of their professional obligations of client confidentiality. The U.S. Patent and Trademark Office will also find it difficult, if not impossible, to determine whether proposed tax strategies meet the statutory requirements for patentability because tax advice is generally provided on a confidential basis.
The usefulness of tax strategy patents is also questionable. It appears that some of these patents may be sought for the purpose of preventing tax advisers and taxpayers from using otherwise legally permissible tax planning techniques unless they pay a royalty.
PROPOSED SOLUTION
We have considered administrative solutions to this issue and concluded that they are not sufficient to solve the problems identified above. Therefore, the AICPA encourages your respective tax-writing committees to develop legislation to eliminate the harmful consequences of tax strategy patents by either: (1) restricting the issuance of patents for tax strategies; or (2) providing immunity from patent infringement liability for taxpayers and tax practitioners. We recognize that there may be value in patents for certain commercially available tax preparation and reporting software and concur with IRS Commissioner Mark Everson, who has publicly stated that granting a patent for such software, as discussed in section V of our attached analysis, could be beneficial to taxpayers and should not be prohibited by any new legislation.
Our analysis and recommendations are more fully stated in the enclosed paper. [This analysis is available electronically, see link below.] We also generally concur in the views expressed by IRS Commissioner Mark Everson, Professor Ellen Aprill, and Mr. Dennis Belcher, who testified at the July 13, 2006, Subcommittee on Select Revenue Measures of the House of Representatives Committee on Ways and Means hearing, and the New York State Bar Association Tax Section in a letter dated August 17, 2006 to the leadership of the tax-writing committees and Subcommittee.
CONCLUSION
As Congress considers whether to make any changes to the rules governing patents for tax strategies, we hope these suggestions will be considered. We look forward to working with you and Congress on this issue.
If you have any questions or if we can be of further assistance, please contact me at jeffrey.hoops@ey.com; Justin P. Ransome, Chair, AICPA Tax Patent Task Force, at justin.ransome@gt.com; or Eileen Sherr, AICPA Technical Manager, at esherr@aicpa.org.
Sincerely,
Jeffrey R. Hoops
Chair, AICPA Tax Executive Committee