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

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.