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FFRF Motion for Summary Judgement! IRC 107 Challenge

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  • rlbaty50
    The response from the FFRF and its motion for summary judgment in its favor is as extensive as the Government s. I was unable to copy it as a file. I did copy
    Message 1 of 2 , Jul 26 4:03 PM
    • 0 Attachment
      The response from the FFRF and its motion for summary judgment in its favor is as extensive as the Government's. I was unable to copy it as a file.

      I did copy some of the text as shown below and which deals with my area of special interest ("basketball ministers").

      Maybe I will figure out a way to post the whole thing as a file later, or get more of the text copied and posted.

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

      UNITED STATES DISTRICT COURT
      WESTERN DISTRICT OF WISCONSIN

      Case No. 11 CV 0626

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

      Plaintiffs,

      v.

      UNITED STATES OF AMERICA;
      TIMOTHY GEITHNER,
      in his official capacity; and
      DOUGLAS SHULMAN,
      in his official capacity,

      Defendants

      PLAINTIFFS' BRIEF OPPOSING SUMMARY JUDGMENT IN FAVOR OF THE GOVERNMENT

      (excerpts)

      VII.

      SECTION 107(2) VIOLATES THE ESTABLISHMENT CLAUSE BECAUSE IT IS NOT NEUTRAL AND PROVIDES SIGNIFICANT TAX BENEFITS EXCLUSIVELY TO MINISTERS OF THE GOSPEL.

      F.

      Section 107(2) CreatesGovernment Entanglement With Religion.

      The IRS, in short, must regularly make purely religious determinations in administering §107(2). The difficulty of resolving these religious questions, and the potential for inconsistent
      conclusions, give rise to far more entanglement than the purely secular inquiries that underlie "convenience of the employer" determinations under §119.

      For example, another difficult religious determination that the IRS
      has had to make is whether a Christian college is an "integral
      agency of a church."

      This is the subject of many private letter rulings by the IRS, prompting one commentator to conclude that "the Service has consistently ruled that ordained ministers who teach at schools that are integrally related to churches are performing services within the exercise of their ministry, no matter what they teach."

      Newman,
      On Section 107's Worst Feature: The Teacher-Preacher,
      93 TNT 260-20.

      College administrators, and even basketball coaches, as well as teachers, can thus qualify for the benefits of §107 if they happen
      to be ordained ministers.

      It is often difficult, however, to determine whether the criteria for "integral part of a church" are satisfied.

      The IRS uses the criteria listed in Rev. Rul. 72-606 and Rev. Rul.
      70-549, in making these determinations.

      Typical rulings in this area highlight the intrusiveness of the determination.

      See LTR 9608027, 96 TNT 39-49; LTR 200002040, 2000 TNT 11-24; and
      LTR 200925001, 2009 TNT 117-28.

      IX.

      CONCLUSION.

      The Court should deny the Government's motion for summary judgment and instead grant judgment in favor of the Plaintiffs.

      Section 107(2) undisputedly excludes from taxation housing allowances
      that are based on religious affiliation.

      Section 107(2) is not a benefit that is neutral and generally available without regard to religion, as required by Texas Monthly.

      Section 107(2) is unconstitutional.

      Dated this 26 day of July, 2013.

      BOARDMAN & CLARK LLP
      By:
      /s/ Richard L. Bolton
      Richard L. Bolton

      Attorneys for Plaintiffs

      -------------------------------
      -------------------------------
    • rlbaty50
      ... UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN FREEDOM FROM RELIGION FOUNDATION, INC.; ANNIE LAURIE GAYLOR, and DAN BARKER Plaintiffs, v.
      Message 2 of 2 , Jul 26 4:41 PM
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        ---

        In conjunction with the brief in support of the motion for summary judgment today, the FFRF also filed the following proposed additional statement of facts:

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

        UNITED STATES DISTRICT COURT
        WESTERN DISTRICT OF WISCONSIN

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

        Plaintiffs,

        v.

        UNITED STATES OF AMERICA;
        TIMOTHY GEITHNER,
        in his official capacity; and
        DOUGLAS SHULMAN,
        in his official capacity,

        Defendants.

        Case No. 11 CV 0626

        PLAINTIFFS' ADDITIONAL PROPOSED FINDINGS OF FACT

        (references deleted)

        1.

        Dan Barker and Annie Laurie Gaylor are the co-Presidents of The Freedom from Religion Foundation ("FFRF").

        2.

        Barker and Gaylor have each received a designated housing allowance from their employer, FFRF, designated by the FFRF Executive Council, FFRF's governing body.

        3.

        The FFRF Executive Council first designated housing allowances for Barker and Gaylor in August of 2011. The Executive Council designated the amount of $4,500 from each of their salaries yet to be paid in 2011.

        4.

        In addition, FFRF designated the amount of $13,200 from each of the salaries of Barker and me to be paid in 2012 as a housing allowance. The designated housing allowances were established for each month at $1,100.

        5.

        On October 12, 2012, the FFRF Executive Council renewed its prior housing allowance resolution, designating the amount of $15,000
        to be paid in 2013 as a designated housing allowance.

        6.

        The housing allowances designated by FFRF for Barker and Gaylor were
        intended to approximate their actual housing expenses.

        7.

        The housing expenses for Barker and me for 2012 total approximately $26,072, including $14,522 as mortgage payments and $7,767 as property taxes.

        8.

        Housing expenses for Barker and Gaylor for 2011 totaled approximately
        $26,136, including $14,552 as mortgage payments and $7,444 as property taxes.

        9.

        Gaylor has not excluded her housing allowance because § 107(2) of the
        Internal Revenue Code is only available to ministers of the gospel. Gaylor would exclude my housing allowance from reported income, not to exceed the reasonable expenses of her housing or the fair rental value of her home, whichever is less, if § 107(2) and implementing
        regulations so allowed.

        10.

        Gaylor has long considered the exemption allowed only to ministers to be discriminatory and unfair, which is made clear by FFRF's designation of a housing allowance which Barker and Gaylor cannot exclude from their reported income.

        11.

        Gaylor knows of no legitimate facts that would support her taking the
        exemption under §107(2) of the IRC.

        12.

        The Government misapprehends the purpose and activities of FFRF, including the activities performed by Gaylor.

        13.

        The principal purpose of FFRF is to promote the constitutional principle of separation of state and church and to educate the public on matters related to non-theistic beliefs, which purposes do not involve ministry services.

        14.

        FFRF also is not a church and Gaylor is not a minister, nor is FFRF a religious organization operating under the authority of a church or religious denomination.

        15.

        The Government ignores that a substantial part of the work of FFRF is to promote the constitutional principle of separation of state and church, including by advocacy, education, and litigation. FFRF's concern with state/church entanglement is paramount.

        16.

        FFRF's promotion of the separation of state and church does not constitute the practice of religion and it is not based on a belief system "parallel to that of traditionally religious persons."

        17.

        In fact, atheism does not have a body of dogma, tenets, or sacred writings.

        18.

        Atheism also has no hierarchical, or even congregational organization or structure. It is not like the Catholic religion, or Judaism, which have an organizational status and a substantive dogma.

        19.

        FFRF, simply put, is not a church and it is not a religious organization operating under the authority of a church or religious denomination.

        FFRF is a legal entity created to conduct educational purposes, but it is not a church, nor does it operate under the authority of a church.

        20.

        For her part, Gaylor does not perform services in the exercise of a ministry on behalf of FFRF.

        I am not a "duly ordained, commissioned, or licensed minister of a church."

        No higher atheistic body oversees FFRF, or ordains, commissions, or licenses ministers to perform ministry.

        Likewise, FFRF does not ordain, commission, or license ministers,
        including Barker and Gaylor. Gaylor is not ordained, commissioned, or licensed by any church or religious denomination.

        21.

        Barker and Gaylor also do not conduct religious worship or perform sacerdotal functions based on the tenets and practices of a particular religious body constituting a church or denomination.

        The Government implies that the tenets and practices of atheism
        recognize sacerdotal functions and forms of religious worship, but that is not true.

        Atheism does not recognize any sacerdotal functions, or forms of religious worship–and FFRF does not have any such tenets or orthodoxy.

        Gaylor has never performed a wedding, baptism, funeral or other such ceremony. Gaylor has given information about secular or "god-less"
        funerals, but this is not the performance of a sacerdotal function.

        22.

        Gaylor's role as a co-President of FFRF, moreover, does not constitute any ordination, commissioning, or licensing as a minister.

        The functions of the president of FFRF do not include any such ordination or authorization to perform sacerdotal functions or
        worship.

        23.

        FFRF also does not have the attributes of a church that are considered by the IRS.

        24.

        FFRF does not have a recognized creed or form of worship.

        25.

        FFRF does not have any ecclesiastical government.

        26.

        FFRF does not have a formal code of doctrine and discipline applicable to members.

        27.

        FFRF does not have a distinct religious history; on the contrary, FFRF has consistently presented itself to the public as a pesky secular organization that is opposed to governmental establishment of religion.

        28.

        FFRF does not have an organization of ordained ministers and it does not have any prescribed ctheirse of study leading to ordination as a minister.

        29.

        FFRF does not engage in worship and has no established place of worship.

        30.

        FFRF does not have a congregation and does not conduct regular religious services.

        31.

        FFRF does not provide religious instruction for children and has no school for the preparation of ministers.

        32.

        FFRF, in short, does not have the recognized attributes of a church, including a body of "believers or communicants" that assemble regularly in order to worship.

        33.

        Barker and Gaylor also are not recognized as spiritual leaders; in fact, FFRF consistently presents itself to the public as a secular
        organization, albeit one that sometimes ruffles feathers.

        34.

        The Government's reference to Anne Nicol Gaylor as "Madison's Favorite
        Religious Leader," moreover, misconstrues irony for fact. The Madison Magazine "award" cited by the Government was not a bona fide acknowledgement that Anne Nicol Gaylor was viewed in Madison as a spiritual leader.

        Anne Nicol Gaylor has never had a reputation as a religious leader.

        35.

        Gaylor is aware of no facts that would qualify Barker or her as ministers for purposes of the exclusion allowed by Section 107 of the IRC.

        The Government concedes, however, that she would have to establish the elements necessary to qualify for the exclusion, which requires that a minister perform religious functions pursuant to the
        organized tenets and creed of a church or religious denomination.

        In fact, Atheism does not have such tenets, and FFRF is not a church or religious organization.

        36.

        Gaylor would claim the exclusion for the housing allowance designated by FFRF were it not for the IRS statute privileging only ministers of the gospel and excluding secular employees, including free thought leaders who reject religion.

        Accordingly, Barker and Gaylor have not claimed the exclusion for
        fear of disallowance and penalty by the IRS.

        37.

        Based on the facts as Gaylor knows them, she cannot claim the exclusion, including because she does not perform services for a church or religious organization; she is not ordained, commission
        ed, or licensed by a church or a religious denomination; she does
        not perform sacerdotal functions or worship prescribed by the tenets of any religion; and she has no congregation or church where she provides religious services.

        38.

        Barker also is aware that the Government insinuates that he may qualify as a religious minister, but he knows of no legitimate facts that would support taking the exemption under § 107(2).

        He finds it ironic and coercive, in fact, that the Government
        apparently expects him to identify as a religious minister, contrary to his views about religion, in order to qualify for a government benefit.

        39.

        FFRF's promotion of the separation of state and church does not constitute the practice of religion and it is not based on a belief system parallel to that of traditionally religious persons.

        FFRF has no doctrinal premises, except the U.S. Constitution and other
        secular laws.

        FFRF as an organization, espouses and promotes no formal belief in doctrine beyond the wording of the First Amendment.

        40.

        FFRF also is not based on a belief system that is "parallel to that filled by God in traditionally religious persons," and FFRF has not "taken a position on divinity."

        FFRF's Bylaws expressly refer to nontheism, and is open to agnostics and deists, as well as positive atheists (i.e., there is no God), and negative atheists (do not believe there is a God).

        FFRF's position is based on freethought, which is not a doctrine, and in fact, FFRF is not correctly described as an atheist organization.

        41.

        Nonetheless, it must be recognized that atheism does not have a body of dogma, tenets, or sacred writings.

        Atheism also is not a belief system, unlike Christianity
        (theistic) or Buddhism (nontheistic).

        Atheism is not a belief at all – it is the absence of belief.

        FFRF, for its part, also does not subscribe to any belief system, but rather advocates freedom from a belief system.

        42.

        Atheism also has no denominational, or even congregational organization or structure.

        It is not like the Catholic religion, or Judaism, which have an organizational existence and a substantive dogma.

        Atheism has no status or existence as an entity.

        43.

        Barker does not perform services in the exercise of a ministry on behalf of FFRF.

        He is not a "duly ordained, commissioned, or licensed minister" of FFRF, and no higher atheistic body oversees FFRF, or ordains, commissions, or licenses ministers to perform ministry.

        44.

        Barker has officiated at secular weddings, approximately one per year, which he does personally, at no charge, and not representing FFRF.

        This is not a service offered by FFRF, which takes no position on marriage.

        FFRF does not perform marriages and it is not authorized in FFRF's Bylaws, resolutions, or otherwise. (Gaylor has never performed a
        wedding.)

        45.

        De-baptismal certificates sold by FFRF also do not constitute sacerdotal functions.

        These are not official documents, nor are they issued as an official function.

        The de-baptismal certificates are offered as a tongue-in-cheek way to bring attention to opting out of religion, not as a religious exercise.

        They can be purchased, not awarded, and they are available to anyone, not just FFRF members. Gaylor does not sign these certificates.)
        FFRF also does not keep track of who buys the certificates and they are not recorded as any official record.

        46.

        Sacerdotal functions, by definition, are those performed by humans who purportedly stand between humans and God. The concept of sacerdotalism implicitly requires a belief in God and there is no such thing as an atheistic sacerdotal function.

        Even if sacerdotal is given an imprecise meaning that corresponds to
        a solemn official ceremony, moreover, FFRF recognizes no such ceremonies, occasions, or official functions.

        47.

        Based on the facts as Barker knows them to be, he could not honestly, and consistent with good conscience, claim the exclusion as compensation from FFRF for services as a minister.

        48.

        Barker cannot claim the exclusion, including because he does not perform services for a church or religious organization; he is not ordained, commissioned, or licensed by FFRF as a minister; he does not perform sacerdotal functions or worship prescribed by the tenets of FFRF; he has no congregation or church where he provides religious services; and most important, he simply does not perform religious functions for FFRF.

        Dated this 26 day of July, 2013.

        BOARDMAN & CLARK LLP
        By:
        /s/ Richard L. Bolton
        Richard L. Bolton

        Attorneys for Plaintiffs

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