Boston University School of Law
DARBY

Q & A with Professor Darby, Tax Writer of the Year

Joseph B. Darby III, Esq., a lecturer at law in the Graduate Tax Program, was recently recognized as the “Tax Writer of the Year - 2007” by World Trade Executive, a family of 22 tax and business publications. In delivering this award, the presenter, editor Scott Studebaker, commented:

Our decision to award Jay Darby the "tax writer of the year" award was both easy and difficult. Difficult, because we had many excellent articles from tax lawyers and other tax specialists to choose from. The easy part was because Jay's articles are the ones that make us laugh. To illustrate the humor, let me share a few of my favorite phrases from Jay's articles.

--In an article on the wonderfully named Tax Increase Prevention and Reconciliation Act, or TIPRA, Jay titled his article "Something Old, Something New, Something Borrowed, Something Blue--- A Blushing Bride's Report on the Subpart F Changes in TIPRA." Here is the lead sentence: "When it comes to tax legislation, the U.S. Congress usually behaves like a love-struck bridegroom: It just cannot keep its hands off the Internal Revenue Code."

--In an article on offshore triangular reorganizations, Jay compared the IRS and boxing champion Muhammad Ali. "The IRS is far too ponderous to float like a butterfly, but when it needs to, it can definitely sting like a bee."

--In describing the Passive Foreign Investment Company rules, Jay titled his article "The PFIC Storm."

Jay's biggest achievement, in my view, was his relentless investigation in numerous articles of the close connection between the tax code and baseball. In fact, I would say that we have pretty much cornered the market for the tax specialist in this previously neglected area. In one article with a baseball sub-theme, Jay noted the tax implications for the lucky fan who caught Barry Bond's record breaking home run #756. After noting that the IRS often has "the home field advantage," Jay explained that the ball would be taxable just as winnings from Las Vegas, but under Code Section 183, the fan could deduct the costs of season tickets, parking, beer and hot dogs.

Q & A With Professor Darby

To learn more about his interest in writing and his teaching style, we recently caught up with Professor Darby at his office in Boston at the law firm of Greenberg Traurig, LLP.

Q: How does it feel to be dubbed the “Mark Twain of Tax Writers”?

A: Fabulous. I consider Mark Twain the greatest American writer ever, and also probably the funniest American writer ever, although Joseph Heller, Dave Barry and Hunter S. Thompson all make my Final Four in that latter category. Clearly, being compared to Twain is intended as a great compliment, and everyone takes it that way. The compliment might be more equivocal if I were being called the “George Steinbrenner of Tax Writers” or the “George W. Bush of Tax Writers.”

Q: Your articles are known for their wit. Is it difficult to maintain a sense of humor about writing about tax?

A: No, I think the tax code is one of the most unintentionally hilarious documents ever written. It is just amazingly complicated and the language is almost deliberately obtuse. I remember that, until it was repealed a few years ago, Code section 341, dealing with so-called “collapsible corporations,” contained a single run-on sentence that was longer by word count than the entire Gettysburg Address. For fun, we used to try to read that one sentence in a single breath -- it was impossible.

Q: You had over 500 articles published. Do you have a favorite?

A: My favorite tax article was one I wrote for the Boston Phoenix back in 1986, about a very major piece of tax legislation. I was looking for some way to dramatize the denseness and the sheer impenetrability of the Internal Revenue Code; so I took a copy of the Code to the Maynard Gun Club in Maynard, Massachusetts, and a friend and I did a “scientific study” to see if we could shoot a .44 magnum bullet through the Code.

In the Dirty Harry movies Clint Eastwood called a .44 magnum “the most powerful handgun in the world.” You can shoot a .44 magnum bullet through the engine block of a car and the question was whether you could also shoot one through the Internal Revenue Code.

The answer was an emphatic “no.” The Code stopped the .44 magnum bullets from point-blank range, and did so quite easily, I might add. The bullets did not even make it through the first volume, never mind the second volume and the six volumes of regulations behind it.

Q: What are some of the contemporary issues in tax law today?

A: Intellectual property is extremely important because of the role that intellectual property plays in the world economy. Introducing students to that very important historical process--and especially to the sophisticated tax transactions that are involved in intellectual property--is both important and fun.

Q: You teach two courses here at Boston University on intellectual property law. What exactly is intellectual property and how does it relate to taxation?

A: Intellectual property has become the dominant source of wealth in the world over the last 50 years, and will probably grow only more important as we move forward.

Intellectual property is really any kind of intangible property that is created by the imagination or talent of people — it can include patents, copyrights, trademarks, trade dress, advertising strategies, know-how, trade secrets, the recipe for your favorite barbeque sauce — anything that is intangible and has meaningful value. Whereas most tangible property has become commoditized — even computers are a kind of commodity these days — intellectual property is unceasingly creative and innovative in its nature.

In turn, the taxation of intellectual property is increasingly important. There are lots of special rules, and unique exceptions that apply to the different categories of intellectual property. For example, copyrights are taxed totally differently than patents, and both of them are taxed totally differently than trademarks. It has to do with legal history and the evolution of these forms of property.

Q: What is your teaching philosophy? What’s it like to be a student in your class?

A: I try to share with students the natural interest and even fascination that I have with tax law. To me, tax law is like a gigantic puzzle, where you try to figure out the “solution” to a legal structuring challenge. The concepts are sophisticated and complex, and I enjoy figuring out how to maneuver through the Code to a successful conclusion or resolution.

I try to make the classroom as interesting and fun as I can -- we do hypothetical negotiations, have mock trials – and I always encourage participation by the students because that’s the best way for students to learn their craft. I hope the students enjoy it -- but more importantly, I hope they learn a lot from the process.

Q: What do students stand to gain from joining the BU Graduate Tax Program?

A: The BU program has been one of the outstanding LL.M. programs ever since I joined law practice - and that, unfortunately, is getting to be an awfully long time ago. The faculty is comprised almost entirely of practitioners like myself, and I know them to be almost universally outstanding, both in their knowledge of the topic and their ability to teach it.

This is one of the great centers of academic excellence in the country and the world. I often sit in on other classes, just because I find the instruction so outstanding. I think our program here at BU is the best in the country, bar none. Plus, we are located very near to Fenway Park. No one else can say that.

Q: Any advice about who should become a tax lawyer?

A:I think tax law is one of those things that people either love or hate, and that’s probably a good thing, because people that are not really inclined to love it are probably going to stay away from it. The single most important lesson that I’ve learned in life is to find something that you really love to do, and then let the money take care of itself.
If you find you like the complexity and the problem solving that is inherent in tax law, then this is an awfully fun way to earn a living. Almost everyone I know who is good tax lawyer happens to really enjoy the work.

Not all lawyers love their jobs, but most tax lawyers do. However, that is because it is a self-selecting group. If you took a hundred students in a law school class, probably at least eighty of them that would rather dig ditches than spend their life trudging through the internal revenue code.

Q: You're an award winning sports writer as well. Are there any similarities between sports and tax?

A: What sports writing taught me was the importance of writing effectively to convey a greater truth. Tax law tends to be extremely complicated and dreary for most people, and so how you tell the story is a very important element in helping people understand the message. I often use sports analogies, or detective novel metaphors, when I’m trying to explain a complicated tax subject.

Sports writing is really the mythology of the modern era - the deification of people and great deeds. Homer, if he were alive, would be a sports writer today, and his Achilles would probably play center field for the Red Sox. The bad guys, of course, would be the Yankees.

The best way to help people understand it, though, is through humor. I will leave you with my favorite line of all time about the Internal Revenue Code: “If Patrick Henry though taxation without representation was bad, he should have seen what it’s like WITH representation.”