Hooray for me! (26 USC 107)

[ashlynne39]

I have no respect for your organization
...
I have issue with wishing the FFRF good luck on any of its endeavors

Why is that (in particular, the "no respect" part)? You can disagree with their aims, of course. But you're a lawyer, they seek to accomplish their aims through traditional litigation, and they (unlike, for example, the Discovery Institute) have had success in doing so. Even if you think they should lose the suit over § 107 on the merits, isn't it a good thing that they have so far succeeded in broadening the standing requirement?

I understand the issue with 107 and it seems to me it needs to be tightened rather than done away with completely. No, I don't think broadening the standing requirement is a good thing when the organization, as far as I can tell, actually has no standing. My lack of respect for the FFRF is completely about their aims. Sure, great they go through traditional litigation but good Lord they take issue with every little mention of God or religion in any place in the public sector. It has become beyond ridiculous and in no way indicative of what the Establishment Clause is actually about.

[Kestrel]

I understand the issue with 107 and it seems to me it needs to be tightened rather than done away with completely. No, I don't think broadening the standing requirement is a good thing when the organization, as far as I can tell, actually has no standing. My lack of respect for the FFRF is completely about their aims. Sure, great they go through traditional litigation but good Lord they take issue with every little mention of God or religion in any place in the public sector. It has become beyond ridiculous and in no way indicative of what the Establishment Clause is actually about.

As I was following this thread, I kept thinking about untaxed allowances and benefits other groups receive. For instance, active duty military personnel who live off post get an untaxed housing allowance.

If this lawsuit goes forward and succeeds, how will it affect our troops? All it will take to cause a fallout nobody wants is one federal judge with a pen.

There are some pots which ought not be stirred.

No, I think the real "fairness" issue here is not that untaxed allowances are granted to particular groups like clergy, but that what was intended to be a charitable act has been abused. If the government were to tighten the requirement by putting a modest cap on the tax-free amount granted to clergy, you'd probably find that most current recipients would still fall under the threshhold.

I have no problem when a full-time pastor who gets paid subsistence wages receives modest tax-free housing. I have a BIG issue when Mr. Megachurch Televangelist who lives in a huge palace with a swimming pool gets tax-free housing.

[Paths of the Sea]

As I was following this thread, I kept thinking about untaxed
allowances and benefits other groups receive.

For instance, active duty military personnel who live off post
get an untaxed housing allowance.

If this lawsuit goes forward and succeeds, how will it affect
our troops?

Thanks for following the thread.

This lawsuit will not affect the military housing allowance.

The military housing allowance is provided by a law quite separate and distinct from IRC 107 that allows ONLY "ministers" the income tax free benefit.

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

I have a BIG issue when Mr. Megachurch Televangelist
who lives in a huge palace with a swimming pool gets
tax-free housing.

How do you feel about the "basketball coach" at a place like Pepperdine registering as a minister and claiming the income tax free housing benefit?

Sincerely,
Maury Enthusiast!

[Kestrel]

I have a BIG issue when Mr. Megachurch Televangelist who lives in a huge palace with a swimming pool gets tax-free housing.

How do you feel about the "basketball coach" at a place like Pepperdine registering as a minister and claiming the income tax free housing benefit?

Sincerely,
Maury Enthusiast!

I don't know the facts behind that one, so I can't make an legitimate assessment.

Is he a full-time minister paid subsistence wages by his church, who coaches basketball on the side and receives little or no compensation for doing so? No problem with the tax-free housing.

Is he, on the other hand, a full-time basketball coach paid generously by the university who volunteers part-time as a minister for some little church? THAT tax-free housing gives me a lot of heartburn.

Going on...

Playing Devil's Advocate here for the sake of clarification, it seems your issue is NOT the granting of tax-free housing, but rather that tax-free housing is granted to certain groups you disagree with, specifically clergy. You just said you don't disagree with tax-free housing for military. So I guess tax-free housing is OK for other non-profit groups, if you like them?

[Paths of the Sea]

Is he ("basketball minister") a full-time minister
paid subsistence wages by his church, who coaches
basketball on the side and receives little or no
compensation for doing so?

No problem with the tax-free housing.

Is he, on the other hand, a full-time basketball coach
paid generously by the university who volunteers part-time
as a minister for some little church? THAT tax-free housing
gives me a lot of heartburn.

Playing Devil's Advocate here for the sake of clarification,
it seems your issue is NOT the granting of tax-free housing,
but rather that tax-free housing is granted to certain groups
you disagree with, specifically clergy.

You just said you don't disagree with tax-free housing for
military. So I guess tax-free housing is OK for other non-profit
groups, if you like them?

In the administration of IRC 107 the IRS has determined that it doesn't matter what a "minister" gets paid for if he gets paid by the church or its "integral agency" (e.g., some private school, nursing home, publishing company, ad nauseum).

So, you have a place like Pepperdine that pays a basketball coach to coach basketball and who is also a really nice, church-going type who registers as a "minister". Who knows, maybe he does pray a little, teach the bible, and does other nice "minister-like" things.

Why does he get the income tax free benefit?

Because George Bush and Omar Burleson put the squeeze on the IRS for an administrative rule that allows it.

That's what prompted my interest and concern 30 years ago.

I've been whining about that ever since. There was no political will within the IRS or amongst my elected officials to do anything about it, and you can't litigate your opposition to a rule like that.

Ah, but I figured out you can, as of today, litigate against the law behind that administrative rule. And so the FFRF has.

One may or may not agree with the military allowance or the other tax free housing benefit allowed under section 119, but those involve political issues and not violations of the 1st Amendment.

IRC 107, on its face as some propose, violates the 1st Amendment because it allows the benefit ONLY to those passing a religious test.

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

Some may remember the following from the long ago regarding those "basketball ministers" and the Bush/Burleson deal with the IRS:

viewtopic.php?t=6090

Sincerely,
Maury Enthusiast!

[Kestrel]

All the above is why, like Ashlynne, I would favor tightening the rule to eliminate such abuse.

Eliminating tax-free housing for one charitable group is certainly going to lead to other charitable groups being denied, even though they fall under different code sections.

[Paths of the Sea]

All the above is why, like Ashlynne,
I would favor tightening the rule to eliminate such abuse.

The religious community has had decades to eliminate the abuse and would not.

Most recently, they had the chance in the Rick Warren case.
They had the chance in the case of the Grassley Commission.

The abuse is only part of the problem.

Eliminating what is considered abuse (which could be a hotly contested matter) would not resolve the constitutional problem.

It seems to me that the only way around the constitutional problem would be to eliminate the allowance entirely or allow it to a broad class of do-gooders that just happens to include ministers. To avoid giving away the store with such a proposal, there would probably have to be a rather low limit to the benefit; in my opinion.

Hey, if y'all think something like that's an option, why not get Congress and the President working on it (which would require legislators to take a position) in order to try and moot the FFRF case like it did when it was Rick Warren on the hot seat over his housing allowance?

They might even get it done before the election if they do for the FFRF case what they did for Rick Warren!

Sincerely,
Maury Enthusiast!

[Kestrel]

The religious community has had decades to eliminate the abuse and would not.

The religious community did not pass into law 26 USC 107. Congress did.

The agency responsible for eliminating the abuse is likewise the US Congress.

[Paths of the Sea]

The religious community did not pass into law 26 USC 107.
Congress did.

The agency responsible for eliminating the abuse is likewise
the US Congress.

What do you think was the stimulus for Congress and the President to take the very unusual step of getting Rick Warren out of his housing problem with the 9th Circuit and, as far as time is concerned, within a relative "snap of the fingers"!

I am more than willing to let the religious community sit on its hands and let the FFRF suit take its course.

Though, if the past is any clue to the future, now that "standing" has been granted, the religious community may be expected to try and intervene in the case to help out the Government in its defense of the law and all of its abuses; rather than flex its muscle with Congress to fix what ails IRC 107.

The PJI has pledged to do so and when it do so in the earlier case it claimed to have about 100 anonymous preachers behind its effort.

It could be a good show!

I just hope it is a short one!

Sincerely,
Maury Enthusiast!

[Kestrel]

I am more than willing to let the religious community sit on its hands and let the FFRF suit take its course.

You're throwing out a red herring. The religious community does NOT write tax law.

The religious community which primarily benefits from 107 is also largely low income, so not likely to have lots and lots of money to spend on expensive lawyers. You may find a few of those wealthy megachurch televangelist pastors participating, however.

The US Congress had NO problem putting limitations on tax-free housing in 26 USC 119 regarding housing location, housing value, persons occupying, or the need to have the housing recipient immediately available for the employer's convenience.

If the US Congress wants to eliminate or restrict tax-free ministerial housing by rewriting 26 USC 107, that can be inserted into the next rewrite of the tax code. We should get a significant tax code rewrite in the next session of congress.

Looking at the history of 26 USC 107, this section was amended in 2002. Jim Ramstad of Minnesota and 38 cosponsors, representing 24 different states, added a clause limiting the allowance paid to the fair rental value of the residence plus furnishings and utilities. They chose to NOT cap section 107 the way section 119 was capped.

I would go so far as to say that Omar Burleson's "squeeze" effect was long since neutered by 2002, because Burleson had been out of office since 1978, and dead and buried since 1991.

[Paths of the Sea]

You're throwing out a red herring.
The religious community does NOT write tax law.

Looking at the history of 26 USC 107, this section was
amended in 2002. Jim Ramstad of Minnesota and 38
cosponsors, representing 24 different states, added a
clause limiting the allowance paid to the fair rental
value of the residence plus furnishings and utilities.

They chose to NOT cap section 107...

I would go so far as to say that Omar Burleson's "squeeze"
effect was long since neutered by 2002, because Burleson
had been out of office since 1978, and dead and buried
since 1991.

Methinks thou art the one with the red herrings!
I am certainly starting to get a whiff and it isn't from my side of the keyboard.

One must be considerably naive to believe that the religious community doesn't have the political clout to affect a change in the rules. As you note, they got it done for Rick Warren back in 2002; though you misrepresent that matter. And Senator Grassley seems to think his friends in the religious community might now just what it is going to take to fix things and pacify them at the same time; he out-sourced his responsibility to a religious think-tank!

The substance of the 2002 amendment was to simply codify the rule that the IRS was attempting to impose on Rick Warren. In effect, the IRS won the issue but the amendment made the rule prospective and not applicable to Rick's tax years. Rick was off the hook and the 9th Circuit was thwarted in its effort to consider the constitutional issue.

In my opinion, Rick's issue was a minor technical matter that affected few, very few ministers and even fewer that were ever audited over the matter. Try finding another case that was ever litigated on the issue.

My point about the religious community is the various comments I have seen that there are some concerned that the abuses could cost them the loss of the whole law. If they were seriously concerned about that angle, they certainly have the wherewithal to start working over their legislators and talkin' up the need for action NOW! It looks like Grassley's friends in the religion business are going to be at it for a long time yet.

You also misrepresent the Bush/Burleson deal (Rev. Rul. 70-549).

The 2002 law did nothing to stop the use and exploitation of that gimmick. Folks at all sorts of private businesses (e.g., Pepperdine, et al) can register as "ministers" and claim as much income tax free housing as they want to spend.

Sincerely,
Maury Enthusiast!

[Kestrel]

Folks at all sorts of private businesses (e.g., Pepperdine, et al) can register as "ministers" and claim as much income tax free housing as they want to spend.

Yep, the herrings are getting ripe. "All sorts" of private business don't qualify, but you already know that.

I suppose you have a list of other such businesses? We can take a look at them together.

Even if you kick Pepperdine out of section 107, all you do is send them over to section 119. It likely would make very little difference in the long run.

Continuing in the Devil's Advocate role...

Pepperdine is a private church-sponsored university, with all the directors and faculty required to be minister-members in good standing of that particular church (which, BTW, is not a church I am affiliated with). Few private businesses are configured thusly.

And why pick on the Pepperdine basketball coaches? Why not pick on the Pepperdine math or foreign language faculty? Oh, that's right... Sports coaches have a higher "news headline" profile lately.

OK, it's getting late and I'm going to call it a night. I don't agree with the intended result of your zealous pursuit, because I see the long-term fallout damage far exceeding the current abuse. A society completely free from religion means that each member defines his or her own morality; the result is that there are no absolute truths, no definitive standards, and everything always has a library of exceptions. Chaos alone rules.

[Paths of the Sea]

"All sorts" of private business don't qualify, but you already know that.

I suppose you have a list of other such businesses?
We can take a look at them together.

Even if you kick Pepperdine out of section 107,
all you do is send them over to section 119.

It likely would make very little difference in the long run.

Continuing in the Devil's Advocate role...

Pepperdine is a private church-sponsored university,
with all the directors and faculty required to be
minister-members in good standing of that particular
church (which, BTW, is not a church I am affiliated with).

Few private businesses are configured thusly.

And why pick on the Pepperdine basketball coaches?

Why not pick on the Pepperdine math or foreign language
faculty? Oh, that's right... Sports coaches have a higher
"news headline" profile lately.

OK, it's getting late and I'm going to call it a night.

OK, I'll take the last word for tonight and maybe we'll do it again some time.

"All sorts" of private businesses do qualify, and I know that; and I am characterizing private schools such as Pepperdine as one such "private business"; and it's an international business.

No, getting rid of IRC 107 will not send them over to IRC 119; though some might choose to try and reconstruct their affairs so as to qualify under IRC 119.

That's fine; no constitutional, 1st Amendment issue there.

I didn't think you knew that much about Pepperdine, and you did a very good job at proving it. What you proposed about Pepperdine is false.

Many private businesses like Pepperdine are so constructed that their management is vested in nice, church goin' folk; but not as you falsely represent it.

Why "basketball ministers"?

Because the "basketball minister" case (e.g., Jerry Jobe of Oklahoma Christian) is a real case and is representative of how far the IRS, at the behest of Bush/Burleson, have extended the benefit. Certainly, there are plenty of math, english, history, deans, administrators, ad nauseum, at such places that claim the benefit.

It's a PR gimmick!

Sincerely,
Maury Enthusiast!

[wserra]

I understand the issue with 107 and it seems to me it needs to be tightened rather than done away with completely.

While that would make it somewhat more fair, it does nothing to address the Establishment Clause issue.

No, I don't think broadening the standing requirement is a good thing when the organization, as far as I can tell, actually has no standing.

The principle is independent of the one who asserts it. God knows what I think of Nazis, but I agree that they should be permitted to march through Skokie.

And the principle is an important one. Especially since ACSTO v. Winn, 131 S.Ct. 1346 (2011), issues of standing have made it quite difficult to challenge IRC provisions, even on constitutional grounds. Like the dissents in that 5-4 opinion, I believe this to be a bad thing. As I would support Nazis in defense of free speech, I would support a cause with which I don't agree in defense of govt accountability. Wouldn't you?

My lack of respect for the FFRF is completely about their aims.

I respect many people/organizations with whom I disagree, including many posters to this board.

[Paths of the Sea]

(T)he (standing) principle is an important one.

Especially since ACSTO v. Winn, 131 S.Ct. 1346 (2011)...

The Winn case was decided while the original FFRF IRC 107 Challenge suit was making its way through the Court in California.

Some had thought that that decision was a death blow to the FFRF IRC 107 Challenge and it was the catalyst that led to that case being dismissed by mutual agreement.

I thought the FFRF IRC 107 Challenge involved an issue distinguishable from Winn and would result in a different "standing" ruling.

Looks like I was right, for now!

Like I said: "Hooray for me!"

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

I posted this under the tax protest forum as well; since Driscoll spent time for tax evasion. It also seems to have some relevance here, so I am posting it here as well. My legal advisors have indicated it is most likely that the Supreme Court will deny cert. However, my fantasy is that it will accept the case and do what the 9th Circuit was thwarted in doing; taking up the constitutional issue first.

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

http://www.ecfa.org/Content/Driscoll-As ... Housing-Al\
lowance-Case

Driscoll Asks U.S. Supreme Court to Review Housing Allowance Case

August 13, 2012

Phil Driscoll has asked the U.S. Supreme court to review his housing allowance
case. Earlier a three-judge panel of the federal Eleventh Circuit Court of
Appeals in Atlanta overturned a U.S. Tax Court decision allowing clergy members
to claim a tax exclusion for more than one home.

The ruling reversed the Tax Court's decision in Driscoll v. Commissioner, which
was made final in March 2011.

The taxpayers in the case were Phil Driscoll and his wife, Lynne. Mr. Driscoll,
who is an ordained minister as well as a Grammy-award-winning trumpeter, heads
Mighty Horn Ministries, a nonprofit based in Greensboro, Ga., that had total
income of more than $6 million from 2005 to 2009.

At issue in the case were more than $400,000 of tax exclusions the Driscolls
took over a period of four years for a lakefront second home near their first
home in Cleveland, Tenn.

The ministry provided the second home to the couple under the "housing
allowance" of the tax code, often known as the "parsonage allowance."

This provision allows ordained clergy either to live tax-free in a home provided
by a religious organization or to receive a tax-free annual payment to buy or
rent a home as part of approved "reasonable compensation."

Driscoll's position is that the Tax Court erred when it concluded that the word
"home" in Code Sec. 107 included both singular and plural forms of the word
because the statutory context did not support the Dictionary Act's, 1 U.S.C. §1,
singular-to-plural provision.

The taxpayers' argument that, if Congress had intended to limit the income
exclusion under Code Sec. 107(2) to the minister's principal residence, it could
have added language to that effect was rejected.

The consistent use of the singular in the legislative history of Code Sec. 107
demonstrated that Congress intended for the parsonage allowance exclusion to
apply to only one home.

Source: Federal Tax Day, August 8, 2012

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

[Paths of the Sea]

Peter has added a new column with a defense of IRC 107 by Frank Sommerville:

http://www.forbes.com/sites/peterjreill ... or-clergy/

Note also the readers' comments and consider adding your own.

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

Peter J. Reilly at Forbes continues to be one of the rare outlets where the IRC 107 issue is being given some coverage; at least from what I notice.

Peter has now added a column on the Phil Driscoll Supreme Court petition:

http://www.forbes.com/sites/peterjreill ... cond-home/

Sincerely,
Maury Enthusiast!