12albion
1paradide
2jesusandjohnwayne
Richard Posner 360x1000
Learned Hand 360x1000
2lafayette
299
13albion
lifeinmiddlemarch1
10abion
Margaret Fuller2 360x1000
1falsewitness
1lafayette
9albion
11albion
Mark V Holmes 360x1000
5confidencegames
1albion
2lookingforthegoodwar
1transcendentalist
4albion
5albion
Susie King Taylor2 360x1000
2gucci
2falsewitness
Tad Friend 360x1000
Stormy Daniels 360x1000
7albion
2paradise
11632
Spottswood William Robinson 360x1000
14albion
2confidencegames
Anthony McCann1 360x1000
1theleasofus
8albion'
Margaret Fuller1 360x1000
2theleastofus
Margaret Fuller 360x1000
Office of Chief Counsel 360x1000
George F Wil...360x1000
Margaret Fuller4 360x1000
1lookingforthegoodwar
Brendan Beehan 360x1000
Lafayette and Jefferson 360x1000
Margaret Fuller 2 360x1000
3confidencegames
2defense
6confidencegames
Susie King Taylor 360x1000
Thomas Piketty1 360x1000
Mary Ann Evans 360x1000
1lauber
199
Storyparadox1
Thomas Piketty3 360x1000
3albion
3theleastofus
3paradise
7confidencegames
2albion
Samuel Johnson 360x1000
Maurice B Foley 360x1000
storyparadox3
2transadentilist
1madoff
Ruth Bader Ginsburg 360x1000
Gilgamesh 360x1000
Betty Friedan 360x1000
1jesusandjohnwayne
lifeinmiddlemarch2
George M Cohan and Lerarned Hand 360x1000
1confidencegames
1empireofpain
storyparadox2
Margaret Fuller3 360x1000
Anthony McCann2 360x1000
James Gould Cozzens 360x1000
Edmund Burke 360x1000
1gucci
Thomas Piketty2 360x1000
1trap
3defense
AlexRosenberg
1defense
2trap
Margaret Fuller5 360x1000
Adam Gopnik 360x1000
LillianFaderman
399
499
Maria Popova 360x1000
6albion
4confidencegames

Originally published on Forbes.com.

In a long-awaited decision, the Seventh Circuit has ruled that Code Section 107(2) is constitutional overturning Judge Barbara Crabb’s 2017 ruling that the section violated the Establishment Clause. Code Sec 107(2)  allows the exclusion from taxable income of cash housing allowances to “ministers of the gospel”. This is the second time Seventh Circuit has overturned Judge Crabb on this issue.

The first time the decision was based on standing.  The plaintiffs including the Freedom From Religion Foundation fixed the standing issue, so this time the Circuit was ruling on the merits.  And their ruling is that 107(2) is constitutional.

Although I will be studying the decision more, I think it is fair to say that the reasoning of Professor Edward Zelinsky author of Taxing The Church carried the day.  The Court viewed 107(2) as just one of a myriad of provisions exempting housing.  To treat ministers like secular employees receiving the 119(a) convenience of the employer exemption might lead to intrusive inquiries.  This is weighed against the IRS having to patrol the boundary of who is a minister.

These parallel provisions show an overarching arrangement in the tax code to exempt employer-provided housing for employees with certain job-related housing requirements. Congress has exempted certain categories of  employees from complying with the specific requirements of § 119(a)(2) to simplify the application of the convenience-of-the-employer doctrine to those occupations. Section 107, including subsection (2), recognizes ministers often use their homes as part of their ministry. This provision thus eases the administration of the convenience-of-the-employer doctrine by providing a bright-line rule, instead of requiring that ministers and the IRS repeatedly engage with a fact-intensive standard.

Here is the shoutout to Professor Zelinsky.

In contrast, the application of § 119(a)(2) to ministers would entangle church and state far more than under § 107(2). For example, to determine what constitutes the business premises of the employer under § 119(a)(2), the IRS would have to determine what the “business” of the church is and where and how far the “premises” of the church extend. See EDWARD A. ZELINSKY, TAXING THE CHURCH 168–69 (2017). To do so, the IRS would need to interrogate ministers on the specifics of their worship activities, even determine which activities constitute “worship.” Such government inquiries into the internal affairs of churches to determine their eligibility for tax relief have been rejected as excessive entanglement.

And the bottom line is.

FFRF claims § 107(2) renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by the latter. We conclude § 107(2) is constitutional. The judgment of the district court is REVERSED

I want to thank Robert Baty, who started all this trouble for the heads up on the decision.  I will be providing additional coverage over the weekend, but I wanted to get this out quickly.

About The Picture

This ran on Forbes with a generic stock photo, but here on YTMP where the lower readership indicates higher intellects, I have gone with something from the Tate Museum, which I believe in good faith is public domain. There is a connection between the even pictured – the murder of Thomas Becket – and the parsonage exclusion, but I will leave that for the commenters.