Phil Driscoll Fallout!

[Paths of the Sea]

Phil Driscoll, despite being a convicted tax-cheat, was told by the Tax Court that he could exclude from income amounts received as a minister for housing on two houses.

The 11th Circuit recently reversed that and the troops are being rallied to further appeal the decision.

Shades of Rick Warren!

Forbes On-Line has recently published two articles on the Driscoll case from regular contributors Peter Reilly and Robert Wood.

A third article from a guest contributor was published last night and can be found at:

http://www.forbes.com/sites/peterjreill ... etirement/

Sincerely,
Maury enthusiast!

[Paths of the Sea]

Peter Reilly has now contributed another column to the discussion, tying Jeremy Lin and Harvard into the discussion:

http://www.forbes.com/sites/peterjreill ... tionalist/

Sincerely,
Maury enthusiast!

[Paths of the Sea]

Joel Newman and Ellen Aprill, two legal scholars from "religious" universities have posted notes to those two discussions on Forbes. A librarian from Pepperdine University even posted a couple of notes.

Surely, some of the experts here could post a note or two to let the Forbes readers know you dropped by and what your opinion is on the issues.

Here's those links again for ready reference:

http://www.forbes.com/sites/peterjreill ... etirement/

http://www.forbes.com/sites/peterjreill ... tionalist/

Both articles extend over two pages and the readers' comments on the second article extends over two pages.

See you there...or not!

Sincerely,
Maury enthusiast!

[wserra]

The Freedom From Religion Foundation has filed suit (3:11-cv-626, WIWD) to have Sec. 107 declared unconstitutional. The govt has moved to dismiss for lack of standing (the usual problem with taxpayer lawsuits) and failure to allege a waiver of sovereign immunity. The latter can be (and, in fact, has been) cured by a simple amended complaint. The former is more difficult to overcome. It appears that FFRF has done its best, by finding some WI plaintiffs who perform "ministerial" functions but are not entitled to the tax benefit because they do not do so for recognized churches [attempting to provide the "real injury" that "case and controversy" generally requires, especially after ACSTO v. Winn, 131 S.Ct. 1346 (2011)]. The amended complaint has delayed the response and ruling on the govt motion to dismiss.

Good columns in Forbes. I'm not gonna comment there because (a) I'm no expert in tax law, and (2) in the circles in which I move, I'd never live down a Forbes comment.

Thread moved to Tax Policy, where I think it belongs.

[Paths of the Sea]

While Dan Barker is an ordained minister from his days as a theist, the plaintiffs in the FFRF case are not proposing that they are "ministers" for purposes of IRC 107. On the contrary, they are proposing that they have designated housing allowances which they cannot exclude from income under IRC 107 because IRC 107 only allows such an exclusion for "ministers".

Personally, I think the "harm" sufficient to establish "standing" is real and demonstrable. That is, IRC 107 proposes to allow everyone to exclude from income a designated housing allowance...except for the religious test that one has to be a "minister".

Were it not for the religious test included as part of IRC 107, the plaintiffs in the FFRF case would have less income tax to pay; an amount that can be easily determined to demonstrate the degree of "harm" done and to justify granting "standing" to test the merits of IRC 107.

Right?

See also:

http://www.forbes.com/sites/peterjreill ... tionalist/

and

http://www.forbes.com/sites/peterjreill ... etirement/

Just reading those articles and readers' comments will help, but your added comments there will help even more.

Sincerely,
Maury Enthusiast

[Paths of the Sea]

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN

FREEDOM FROM RELIGION FOUNDATION, INC.;
ANNIE LAURIE GAYLOR;
ANNE NICOL GAYLOR; and
DAN BARKER,

Plaintiffs,

v.

UNITED STATES OF AMERICA,
Defendant.

Civil Case No. 11-cv-626

UNITED STATES’ MOTION TO DISMISS PLAINTIFFS’ AMENDED
COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION

Because Plaintiffs fail to establish that this Court has subject
matter jurisdiction to hear their case, the United States moves
this Court to dismiss Plaintiffs’ Amended Complaint, pursuant
to Fed. R. Civ. P. 12(b)(1).

In support of this motion, the United States submits the facts,
arguments, and legal citations contained in the brief filed herewith.

Dated: February 24, 2012

Respectfully submitted,

JOHN W. VAUDREUIL
United States Attorney

/s/ Erin Healy Gallagher
ERIN HEALY GALLAGHER

U.S. Department of Justice,
Tax Division
Post Office Box 7238
Washington, D.C. 20044

/s/ Richard Adam Schwartz
RICHARD ADAM SCHWARTZ
U.S. Department of Justice,
Tax Division
Post Office Box 683
Washington, D.C. 20044

Counsel for Defendant

----------------------------------------------
----------------------------------------------

[wserra]

While Dan Barker is an ordained minister from his days as a theist, the plaintiffs in the FFRF case are not proposing that they are "ministers" for purposes of IRC 107. On the contrary, they are proposing that they have designated housing allowances which they cannot exclude from income under IRC 107 because IRC 107 only allows such an exclusion for "ministers".

Maybe I wasn't clear. The plaintiffs claim that they perform the same functions for a secular non-profit (FFRF) and get the same housing allowance, but are not able to exclude it from income because FFRP is not a church - hence the Establishment Clause violation. That's what I meant by "ministerial" (without being a "minister").

Personally, I think the "harm" sufficient to establish "standing" is real and demonstrable. That is, IRC 107 proposes to allow everyone to exclude from income a designated housing allowance...except for the religious test that one has to be a "minister".

Post-Winn, that's not clear. I hope you're right.

Just reading those articles and readers' comments will help, but your added comments there will help even more.

Me, post in a mag that calls itself "Capitalist Tool"? Feh.

(For all you zealots out there, I'm kidding.)

[Paths of the Sea]

After browsing the brief, I get the impression, not being a lawyer or the son of a lawyer, that the Government knowingly misrepresented the facts and, as a result, made knowlingly faulty legal arguments.

I think it's rather simple, reasonable, and obvious that the "harm" required to obtain "standing" is in the fact that those with designated housing allowances wind up paying more in income tax (the "harm") because they do not meet the obvious "religious test" of IRC 107.

That's quite distinguishable from the cases the Government uses in its motion (e.g., Winn).

Time will tell!

In the Driscoll case, one of my contacts, who attended the recent hearing on the appeal, noticed that the Court acted with remarkable speed in rendering its opinion denying Driscoll his second house exemption.

I hope the Court in the FFRF suit will similarly issue a ruling granting "standing" and moving the case along on its merits.

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

See:

http://www.kcm.org.uk/images/magazine_p ... 011-11.pdf

There's an article in there that tells the Phil Driscoll story from his perspective; before he lost his second home appeal recently.

Very interesting!

You might enjoy hearing his side if you haven't seen it.

It has the following relative to the Faith & Freedom Fund that is pledged to continue the appeal of his housing allowance case:

> Editor’s Note: Phil’s lead counsel, Brooke Asiatico,
> has formed the “Faith & Freedom Fund,” which is a
> tax-exempt legal defense fund which will be used in
> defending this and other similar court cases.

Maybe we will be hearing more about that "Fund", maybe not!

Sincerely,
Maury enthusiast!

[Kestrel]

> Editor’s Note: Phil’s lead counsel, Brooke Asiatico,
> has formed the “Faith & Freedom Fund,” which is a
> tax-exempt legal defense fund which will be used in
> defending this and other similar court cases.

There's just something that makes me uncomfortable when I see a claim of tax-exempt status for a convicted tax evader's legal defense fund. Credibility is definitely strained.

[Paths of the Sea]

For more about Brooke and her law firm, see:

http://baalegal.com/

Sincerely,
Maury Enthusiast!