Original anglais:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=490&invol=680
Résumé:
Un scientologue américain, Hernandez, voulait déduire
les sommes versées à la scientlogie du montant qu'il
déclarait au fisc. Le fisc américain a refusé,
et le tribunal d'instance des impôts a refusé.
Hernandez (avec l'appui de la secte) est allé en appel. La
cour d'appel a refusé également. Hernandez a tenté
la Cour suprème: elle a confirmé la décision
de la Cour d'appel.
(Nota: le webmaster
n'a traduit que la partie les plus significatives, en marron)
Premiere decision: Purement scientologie, décision de la Cour suprème.
Deuxième
décision: puisque le fisc américain IRS a
violé la décision de la Cour Suprème et finalement
accordé illégalement l'exemption d'impôts à
la scientologie (ce qu'il n'avait évidemment pas le droit de
faire puisque violant une décision inverse de la Cour Suprème
des Etats-Unis), un père juif (Michael Sklar) a demandé
à son tour à ce qu'un partie des sommes qu'il verse
pour ses enfants dans une écoles juive soit déductible.
Cela lui a été refusé en instance et en appel.
Nous avons
traduit une toute petite partie
de cette décision (qui se réfère d'ailleurs et
confirme celle-ci) - - qui confirme l'illégalité de
la décision de l'IRS d'accorder une exemption d'impôtrs
aux scientologues et, probablement, à leur secte. Voir à
ce sujet aussi la décision de la "Charity Commission"
du Royaume Uni.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/27B565D1754D4E5E88256B50005F20CE/$file/0070753.pdf?openelement
Enfin, malgré
ces décisions à répétition des tribunaux,
la secte continue d'emmagasiner de l'argent que paient les contribuaubles
américains. Pire, elle a organisé soigneusement la fuite
des capitaux extorqués à ses adeptes dans les pays où
elle ne bénéficie pas d'exemption, comme la France.
Le système est très simple: la secte américaine
facture à prix d'or des "missions" et des "formations"
aux organisations scientologues de ces pays. Elle rapatrie donc ces
fonds "exemptés d'impôts" aux USA.
Elle a d'ailleurs
obtenu un "droit" encore plus régalien et illicite:
celui de décider elle-même quelles entités scientologues
sont exemptées d'impôts aux Etats-Unis.
Cela découle de l'accord final entre la secte et l'IRS, en
1993.
U.S. Supreme Court
HERNANDEZ v. COMMISSIONER, 490 U.S. 680 (1989)
490 U.S. 680
HERNANDEZ v. COMMISSIONER OF INTERNAL REVENUE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 87-963.
Discuté le 28 novembre, 1988
Décision du 5 juin, 1989 *
L'église de
scientologie (église) fournit des séances "d'audition"
destinées à améliorer la conscience spirituelle
des membresn, et des cours d'entraînement où les participants
étudients les fondements de la croyance et essaient de parvenir
aux qualifications nécessaires pour mener des séances
d'audition. Selon un des fondements centraux de sa "doctrine
d'échange", l'église a établi des tarifs
obligatoires fixes pour les séances d'audition et d'entraînement,
lesquels varient en fonction de la durée des séances
et du niveau de sophistication; ces prix sont versés aux églises
locales. Selon l'article 170 du code des impôts IRS de 1954,
les demandeurs désirent déduire ces versements de leur
déclaration au titre de "contribution charitable",
ce qui se définit comme une "contribution ou un cadeau"
transmis à des récipiendaires éligibles. Après
que le Commissaire de l'IRS ait refusé ces déductions,
expliquant qu'il ne s'agissait pas de "contributions charitables",
les demandeurs sont allés devant un tribunal des Impôts
pour obtenir révision de la décision. Ce tribunal a
maintenu les décisions du Commissaire et rejeté les
arguments constitutionnels basé sur le libre exercice des Clauses
du Premier Amendement de la Constitution US.
La Cour d'Appel a tenu les appels séparés.
Maintenu:
Les paiements effectués aux églises [de scientologie]
locales pour les services d'audition et d'entraînement ne sont
pas déductibles [au titre] des contributions charitables, selon
l'article 170 pages 689-703.
(a) les paiements
des demandeurs ne sont pas des "contributions" ou des "cadeaux"
au sens de l'article 170. L'historique législatif des limites
de "contribution ou cadeau" révèle que le
Congrès avait l'intention d'établir une différence
entre des paiements non exigés effectués à des
destinataires qualifiés, qui sont déductibles, et des
paiements effectués à des destinataires face à
une contrepartie [un quid pro quo]
en termes de biens ou services, paiements qui ne sont pas déductibles.
Pour s'assurer qu'un paiement donné se fait dans ces conditions
de contrepartie, on doit examiner les particularités de la
transaction effectuée. Ici, les particularités extérieures
suggèrent largement un échange entre demandeurs [490
U.S. 680, 681], échange d'argent pour de l'audition et de l'entraînement,
puisque l'église établit des prix fixes pour chaque
église locale, qu'elle calibre ces prix en fonction de la durée
de séances et du niveau de sophistication, qu'elle rend le
trop-perçu si les services ne sont pas accomplis, qu'elle distribue
des "relevés de compte" pour gérer ce qui
a été payé par avance mais n'a pas encore été
délivré, et qu'elle interdit catégoriquement
les séances gratuites. L'argument du demandeur prétendant
que l'analyse "quid
pro quo" ne convient pas ici puisque les paiements
effectués ne donnent, en cas de paiement effectués à
une église, que des bénéfices religieux, cet
argument ne convainct pas, puisque dans ses termes, l'article 170
ne donne pas d'indication de [traitement] préférentiel
pour ce type de paiements, et que l'historique (1)
législatif
n'offre aucun indice qu'il puisse s'agir d'une négligence ou
d'un oubli [du législateur]. En outre, la proposition de déductibilité
des demandeurs étendrait la contribution charitable très
au delà de ce qu'a fourni le Congrès et engloberait
de nombreuses formes de paiements qui, autrement, ne seraient ou ne
pourraient être déductibles. De plus, cette proposition
pourrait soulever des problèmes d'implication entre Eglise
et Etat, puisque l'IRS serait contraint d'établir des différenciations
entre "bénéfices religieux" ou "services"
d'organisations laïques. Pp. 689-694.
[la suite
explique en quoi le refus d'autoriser cette déuction d'impôts
aux demandeurs ne viole ni
ce qu'on nomme "Clause d'établissement"
(Premier amendement de la Constitution américaine, qui interdit
l'immixtion de l'état dans les affaires religieuses), ni la
Clause de Libre exercice (autrement dit, la liberté de religion).
Ensuite, la Cour explique en quoi les arguments des demandeurs n'expliquent
pas de différentiations injustifiées entre les traitements
du fisc face à la sciento par rapport à d'autres "religions".
Cette partie de la décision est assez formelle ; la cour d'appel
de Californie ira plus loin, en recommandant, dans Sklar c. IRS,
de faire un procès pour redresser l'anomalie de traitement
commise par l'IRS dans les privilèges accordés à
scientologie, mais pas à d'autres groupements]
Sklar contre IRS, extrait.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/27B565D1754D4E5E88256B50005F20CE/$file/0070753.pdf?openelement.
Dans
le procès en appel de Michael Sklar et Marla Sklar,
appelants, contre le Commissaire de l'IRS (fisc américain),
voici ce qu'on peut lire. Rappelons brièvement les
faits: les scientologues américains ayant obtenu une
exemption illicté d'impôts pour ce qu'ils versent
comme fonds à leur secte, une famille de religion juive
de Los Angelès a demandé à bénéficier
du même avantage pour les études religieuses
de ses enfants. Elle n'a pas obtenu gain de cause, mais ici,
on lit que la Cour d'Appel estime que l'avantage accordé
aux scientologues par le fisc devrait leur être retiré
(ou, en tout cas, l'affaire devrait faire l'objet d'un procès
contre l'IRS et la secte)
"Nous
[c'est
le président de la Cour d'appel qui écrit]
rejetons par conséquent l'argument selon lequel le
compromis final entre l'église de scientologie et l'IRS
[fisc américain] , ou au moins, la partie du compromis
qui établit les règles applicables aux membres
de la scientologie en général, ne soit pas assujetti
à l'obligation de publication auprès du public.
L'IRS n'a simplement pas le droit d'établir des compromis
finaux avec des organisations religieuses ou sans but lucratif,
accords qui gouverneraient des déductions, puis de
taire ces compromis auprès des tribunaux, du Congrès
et du public.
.../...
Un compromis final de l'IRS ne peut supplanter le Congrès
ni la Cour Suprème.
Si l'IRS donne en fait un traîtement préférentiel
aux membres de l'église de scientologie, en leur donnant
un droit spécial de prétendre à des déductions
qui sont contraires à la loi, et que l'IRS refuse avec
raison ce droit à tous les autres, l'action correcte
à entreprendre alors est de porter plainte afin de
mettre fin à cette politique. Le remède ne consiste
pas à exiger que les autres obtiennent aussi cette
déduction imméritée.
|
(b) Disallowance of petitioners' 170 deductions does not violate the
Establishment Clause. Petitioners' argument that 170 creates an unconstitutional
denominational preference by according disproportionately harsh tax
status to those religions that raise funds by imposing fixed costs
for participation in certain religious practices is unpersuasive.
Section 170 passes constitutional muster, since it does not facially
differentiate among religious sects but applies to all religious entities,
and since it satisfies the requisite three-pronged inquiry under the
Clause. First, the section is neutral both in design and purpose,
there being no allegation that it was born of animus to religion in
general or to Scientology in particular. Second, its primary effect
- encouraging gifts to charitable entities, including but not limited
to religious organizations - does not advance religion, there being
no allegation that it involves direct governmental action endorsing
religion or a particular religious practice. Its primary secular effect
is not rendered unconstitutional merely because it happens to harmonize
with the tenets of religions that raise funds by soliciting unilateral
donations. Third, the section threatens no excessive entanglement
between church and state. Although the IRS must ascertain the prices
of a religious institution's services, the regularity with which such
payments are waived, and other pertinent information about the transaction,
this is merely routine regulatory interaction that does not involve
the type of inquiries into religious doctrine, delegation of state
power, or detailed monitoring and close administrative contact that
would violate the nonentanglement command. Nor does the application
of 170 require the Government to place a monetary [490 U.S. 680, 682]
value on particular religious benefits. Petitioners' claim to the
contrary raises no need for valuation, since they have alleged only
that their payments are fully exempt from a quid pro quo analysis
- not that some portion of those payments is deductible because it
exceeds the value of the acquired service. In any event, the need
to ascertain what portion of a payment was a purchase and what portion
was a contribution does not ineluctably create entanglement problems,
since the IRS has eschewed benefit-focused valuation in cases where
the economic value of a good or service is elusive, and has instead
employed a valuation method which inquires into the cost (if any)
to the donee of providing the good or service. This method involves
merely administrative inquiries that, as a general matter, bear no
resemblance to the kind of governmental surveillance that poses an
intolerable risk of entanglement. Pp. 695-698.
(c) Disallowance of petitioners' 170 deductions does not violate the
Free Exercise Clause. Although it is doubtful that, as petitioners
allege, the disallowance imposes a substantial burden on the central
practice of Scientology by deterring adherents from engaging in auditing
and training sessions and by interfering with their observance of
the doctrine of exchange, United States v. Lee, 455 U.S. 252, 260
, establishes that even a substantial burden is justified by the broad
public interest in maintaining a sound tax system, free of myriad
exceptions flowing from a wide variety of religious beliefs. That
this case involves federal income taxes, rather than the Social Security
taxes considered in Lee, is of no consequence. Also of no consequence
is the fact that the Code already contains some deductions and exemptions,
since the guiding principle is that a tax must be uniformly applicable
to all, except as Congress provides explicitly otherwise. Id., at
261. Indeed, the Government's interest in avoiding an exemption is
more powerful here than in Lee, in the sense that the claimed exemption
there stemmed from a specific doctrinal obligation not to pay taxes,
whereas there is no limitation to petitioners' argument that they
are entitled to an exemption because an incrementally larger tax burden
interferes with their religious activities. Pp. 698-700.
(d) Petitioners' assertion that disallowing their claimed deductions
conflicts with the IRS' longstanding practice of permitting taxpayers
to deduct payments to other religious institutions in connection with
certain religious practices must be rejected in the absence of any
specific evidence about the nature or structure of such other transactions.
In the absence of those facts, this Court cannot appraise accurately
whether IRS revenue rulings allowing deductions for particular religious
payments correctly applied a quid pro quo analysis to the practices
in question and cannot discern whether those rulings contain any unifying
[490 U.S. 680, 683] principle that would embrace auditing and training
session payments. Pp. 700-703.
819 F.2d 1212 and 822 F.2d 844, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and WHITE, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J.,
filed a dissenting opinion, in which SCALIA, J., joined, post, p.
704. BRENNAN and KENNEDY, JJ., took no part in the consideration or
decision of the cases.
[ Footnote * ] Together with No. 87-1616, Graham et al. v. Commissioner
of Internal Revenue, on certiorari to the United States Court of Appeals
for the Ninth Circuit.
Michael J. Graetz argued the cause and filed briefs for petitioners
in both cases.
Deputy Solicitor General Merrill argued the cause for respondent in
both cases. With him on the brief were Solicitor General Fried, Assistant
Attorney General Rose, Deputy Solicitor General Wallace, Alan I. Horowitz,
and Robert S. Pomerance.Fn
Fn [490 U.S. 680, 683] Briefs of amici curiae urging reversal were
filed for the American Jewish Congress et al. by Walter J. Rockler,
Julius Greisman, Paul S. Berger, and Marc D. Stern; and for the Council
on Religious Freedom by Lee Boothby.
JUSTICE MARSHALL delivered the opinion of the Court.
Section 170 of the Internal Revenue Code of 1954 (Code), 26 U.S.C.
170, permits a taxpayer to deduct from gross income the amount of
a "charitable contribution." The Code defines that term
as a "contribution or gift" to certain eligible donees,
including entities organized and operated exclusively for religious
purposes. 1 We granted certiorari to determine [490 U.S. 680, 684]
whether taxpayers may deduct as charitable contributions payments
made to branch churches of the Church of Scientology (Church) in order
to receive services known as "auditing" and "training."
We hold that such payments are not deductible.
I
Scientology was founded in the 1950's by L. Ron Hubbard. It is propagated
today by a "mother church" in California and by numerous
branch churches around the world. The mother Church instructs laity,
trains and ordains ministers, and creates new congregations. Branch
churches, known as "franchises" or "missions,"
provide Scientology services at the local level, under the supervision
of the mother Church. Church of Scientology of California v. Commissioner,
823 F.2d 1310, 1313 (CA9 1987), cert. denied, 486 U.S. 1015 (1988).
Scientologists believe that an immortal spiritual being exists in
every person. A person becomes aware of this spiritual dimension through
a process known as "auditing." 2 Auditing involves a one-to-one
encounter between a participant (known as a "preclear")
and a Church official (known as [490 U.S. 680, 685] an "auditor").
An electronic device, the E-meter, helps the auditor identify the
preclear's areas of spiritual difficulty by measuring skin responses
during a question and answer session. Although auditing sessions are
conducted one on one, the content of each session is not individually
tailored. The preclear gains spiritual awareness by progressing through
sequential levels of auditing, provided in short blocks of time known
as "intensives." 83 T. C. 575, 577 (1984), aff'd, 822 F.2d
844 (CA9 1987).
The Church also offers members doctrinal courses known as "training."
Participants in these sessions study the tenets of Scientology and
seek to attain the qualifications necessary to serve as auditors.
Training courses, like auditing sessions, are provided in sequential
levels. Scientologists are taught that spiritual gains result from
participation in such courses. 83 T. C., at 577.
The Church charges a "fixed donation," also known as a "price"
or a "fixed contribution," for participants to gain access
to auditing and training sessions. These charges are set forth in
schedules, and prices vary with a session's length and level of sophistication.
In 1972, for example, the general rates for auditing ranged from $625
for a 12 1/2-hour auditing intensive, the shortest available, to $4,250
for a 100-hour intensive, the longest available. Specialized types
of auditing required higher fixed donations: a 12 1/2-hour "Integrity
Processing" auditing intensive cost $750; a 12 1/2-hour "Expanded
Dianetics" auditing intensive cost $950. This system of mandatory
fixed charges is based on a central tenet of Scientology known as
the "doctrine of exchange," according to which any time
a person receives something he must pay something back. Id., at 577-578.
In so doing, a Scientologist maintains "inflow" and "outflow"
and avoids spiritual decline. 819 F.2d 1212, 1222 (CA1 1987).
The proceeds generated from auditing and training sessions are the
Church's primary source of income. The Church promotes these sessions
not only through newspaper, [490 U.S. 680, 686] magazine, and radio
advertisements, but also through free lectures, free personality tests,
and leaflets. The Church also encourages, and indeed rewards with
a 5% discount, advance payment for these sessions. 822 F.2d, at 847.
The Church often refunds unused portions of prepaid auditing or training
fees, less an administrative charge.
Petitioners in these consolidated cases each made payments to a branch
church for auditing or training sessions. They sought to deduct these
payments on their federal income tax returns as charitable contributions
under 170. Respondent Commissioner, the head of the Internal Revenue
Service (IRS), disallowed these deductions, finding that the payments
were not charitable contributions within the meaning of 170. 3
Petitioners sought review of these determinations in the Tax Court.
That court consolidated for trial the cases of the three petitioners
in No. 87-1616: Katherine Jean Graham, Richard M. Hermann, and David
Forbes Maynard. The petitioner in No. 87-963, Robert L. Hernandez,
agreed to be bound by the findings in the consolidated Graham trial,
reserving his right to a separate appeal. Before trial, the Commissioner
stipulated that the branch churches of Scientology are religious organizations
entitled to receive tax-deductible charitable contributions under
the relevant sections of the Code. This stipulation isolated as the
sole statutory issue whether payments for auditing or training sessions
constitute "contribution[s] or gift[s]" under 170. 4 [490
U.S. 680, 687]
The Tax Court held a 3-day bench trial during which the taxpayers
and others testified and submitted documentary exhibits describing
the terms under which the Church promotes and provides auditing and
training sessions. Based on this record, the court upheld the Commissioner's
decision. 83 T. C. 575 (1984). It observed first that the term "charitable
contribution" in 170 is synonymous with the word "gift,"
which case law had defined "as a voluntary transfer of property
by the owner to another without consideration therefor." Id.,
at 580, quoting DeJong v. Commissioner, 36 T. C. 896, 899 (1961) (emphasis
in original), aff'd, 309 F.2d 373 (CA9 1962). It then determined that
petitioners had received consideration for their payments, namely,
"the benefit of various religious services provided by the Church
of Scientology." 83 T. C., at 580. The Tax Court also rejected
the taxpayers' constitutional challenges based on the Establishment
and Free Exercise Clauses of the First Amendment.
The Courts of Appeals for the First Circuit in petitioner Hernandez's
case, and for the Ninth Circuit in Graham, Hermann, and Maynard's
case, affirmed. The First Circuit rejected Hernandez's argument that
under 170, the IRS' ordinary inquiry into whether the taxpayer received
consideration for his payment should not apply to "the return
of a commensurate religious benefit, as opposed to an economic or
financial benefit." 819 F.2d, at 1217 (emphasis in original).
[490 U.S. 680, 688] The court found "no indication that Congress
intended to distinguish the religious benefits sought by Hernandez
from the medical, educational, scientific, literary, or other benefits
that could likewise provide the quid for the quo of a non-deductible
payment to a charitable organization." Ibid. The court also rejected
Hernandez's argument that it was impracticable to put a value on the
services he had purchased, noting that the Church itself had "established
and advertised monetary prices" for auditing and training sessions,
and that Hernandez had not claimed that these prices misstated the
cost of providing these sessions. Id., at 1218.
Hernandez's constitutional claims also failed. Because 170 created
no denominational preference on its face, Hernandez had shown no Establishment
Clause violation. Id., at 1218-1221. As for the Free Exercise Clause
challenge, the court determined that denying the deduction did not
prevent Hernandez from paying for auditing and training sessions and
thereby observing Scientology's doctrine of exchange. Moreover, granting
a tax exemption would compromise the integrity and fairness of the
tax system. Id., at 1221-1225.
The Ninth Circuit also found that the taxpayers had received a "measurable,
specific return . . . as a quid pro quo for the donation" they
had made to the branch churches. 822 F.2d, at 848. The court reached
this result by focusing on "the external features" of the
auditing and training transactions, an analytic technique which "serves
as an expedient for any more intrusive inquiry into the motives of
the payor." Ibid. Whether a particular exchange generated secular
or religious benefits to the taxpayer was irrelevant, for under 170
"[i]t is the structure of the transaction, and not the type of
benefit received, that controls." Id., at 849.
The Ninth Circuit also rejected the taxpayers' constitutional arguments.
The tax deduction provision did not violate the Establishment Clause
because 170 is "neutral in its design" and reflects no intent
"to visit a disability on a particular [490 U.S. 680, 689] religion."
Id., at 853. Furthermore, that the taxpayers would "have less
money to pay to the Church, or that the Church [would] receive less
money, [did] not rise to the level of a burden on appellants' ability
to exercise their religious beliefs." Id., at 851. Indeed, because
the taxpayers could still make charitable donations to the branch
church, they were "not put to the choice of abandoning the doctrine
of exchange or losing the government benefit, for they may have both."
Ibid. Finally, the court noted that the compelling governmental interest
in "the maintenance of a sound and uniform tax system" counseled
against granting a free exercise exemption. Id., at 852-853.
We granted certiorari, 485 U.S. 1005 (1988); 486 U.S. 1022 (1988),
to resolve a Circuit conflict concerning the validity of charitable
deductions for auditing and training payments. 5 We now affirm.
II
For over 70 years, federal taxpayers have been allowed to deduct the
amount of contributions or gifts to charitable, religious, and other
eleemosynary institutions. See 2 B. Bittker, Federal Taxation of Income,
Estates and Gifts 35.1.1 (1981) (tracing history of charitable deduction).
Section 170, the present provision, was enacted in 1954; it requires
a taxpayer claiming the deduction to satisfy a number of conditions.
6 The Commissioner's stipulation in this case, however, [490 U.S.
680, 690] has narrowed the statutory inquiry to one such condition:
whether petitioners' payments for auditing and training sessions are
"contribution[s] or gift[s]" within the meaning of 170.
The legislative history of the "contribution
or gift" limitation, though sparse, reveals that Congress intended
to differentiate between unrequited payments to qualified recipients
and payments made to such recipients in return for goods or services.
Only the former were deemed deductible. The House and Senate Reports
on the 1954 tax bill, for example, both define "gifts" as
payments "made with no expectation of a financial return commensurate
with the amount of the gift." S. Rep. No. 1622, 83d Cong., 2d
Sess., 196 (1954); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A44 (1954).
Using payments to hospitals as an example, both Reports state that
the gift characterization should not apply to "a payment by an
individual to a hospital in consideration of a binding obligation
to provide medical treatment for the individual's employees. It would
apply only if there were no expectation of any quid pro quo from the
hospital." S. Rep. No. 1622, supra, at 196 (emphasis added);
H. Rep. No. 1337, supra, at A44 (emphasis added). 7
In ascertaining whether a given payment was made with "the expectation
of any quid pro quo," S. Rep. No. 1622, supra, at 196; H. Rep.
No. 1337, supra, at A44, the IRS has customarily examined the external
features of the transaction in question. This practice has the advantage
of obviating [490 U.S. 680, 691] the need for the IRS to conduct imprecise
inquiries into the motivations of individual taxpayers. The lower
courts have generally embraced this structural analysis. See, e. g.,
Singer Co. v. United States, 449 F.2d 413, 422-423 (Ct. Cl. 1971)
(applying this approach and collecting cases), cited in United States
v. American Bar Endowment, 477 U.S. 105, 117 (1986); see also 2 B.
Bittker, supra, at 35.1.3 (collecting cases). We likewise focused
on external features in United States v. American Bar Endowment, supra,
to resolve the taxpayers' claims that they were entitled to partial
deductions for premiums paid to a charitable organization for insurance
coverage; the taxpayers contended that they had paid unusually high
premiums in an effort to make a contribution along with their purchase
of insurance. We upheld the Commissioner's disallowance of the partial
deductions because the taxpayers had failed to demonstrate, at a minimum,
the existence of comparable insurance policies with prices lower than
those of the policy they had each purchased. In so doing, we stressed
that "[t]he sine qua non of a charitable contribution is a transfer
of money or property without adequate consideration." Id., at
118 (emphasis added in part). 8
In light of this understanding of 170, it is readily apparent that
petitioners' payments to the Church do not qualify as "contribution[s]
or gift[s]." As the Tax Court found, these payments were part
of a quintessential quid pro quo exchange: in return for their money,
petitioners received an identifiable benefit, namely, auditing and
training sessions. The Church established fixed price schedules for
auditing and training sessions in each branch church; it calibrated
particular prices to auditing or training sessions of particular lengths
and levels of sophistication; it returned a refund if auditing and
training services went unperformed; it distributed "account [490
U.S. 680, 692] cards" on which persons who had paid money to
the Church could monitor what prepaid services they had not yet claimed;
and it categorically barred provision of auditing or training sessions
for free. 9 Each of these practices reveals the inherently reciprocal
nature of the exchange.
Petitioners do not argue that such a structural analysis is inappropriate
under 170, or that the external features of the auditing and training
transactions do not strongly suggest a quid pro quo exchange. Indeed,
the petitioners in the consolidated Graham case conceded at trial
that they expected to receive specific amounts of auditing and training
in return for their payments. 822 F.2d, at 850. Petitioners argue
instead that they are entitled to deductions because a quid pro quo
analysis is inappropriate under 170 when the benefit a taxpayer receives
is purely religious in nature. Along the same lines, petitioners claim
that payments made for the right to participate in a religious service
should be automatically deductible under 170.
We cannot accept this statutory argument for several reasons. First,
it finds no support in the language of 170. Whether or not Congress
could, consistent with the Establishment Clause, provide for the automatic
deductibility of a payment made to a church that either generates
religious benefits or guarantees access to a religious service, that
is a choice Congress has thus for declined to make. Instead, Congress
has specified that a payment to an organization operated exclusively
for religious (or other eleemosynary) purposes [490 U.S. 680, 693]
is deductible only if such a payment is a "contribution or gift."
26 U.S.C. 170(c). The Code makes no special preference for payments
made in the expectation of gaining religious benefits or access to
a religious service. Foley v. Commissioner, 844 F.2d 94, 98 (CA2 1988)
(Newman, J., dissenting), cert. pending, No. 88-102. The House and
Senate Reports on 170, and the other legislative history of that provision,
offer no indication that Congress' failure to enact such a preference
was an oversight.
Second, petitioners' deductibility proposal would expand the charitable
contribution deduction far beyond what Congress has provided. Numerous
forms of payments to eligible donees plausibly could be categorized
as providing a religious benefit or as securing access to a religious
service. For example, some taxpayers might regard their tuition payments
to parochial schools as generating a religious benefit or as securing
access to a religious service; such payments, however, have long been
held not to be charitable contributions under 170. Foley, supra, at
98, citing Winters v. Commissioner, 468 F.2d 778 (CA2 1972); see id.,
at 781 (noting Congress' refusal to enact legislation permitting taxpayers
to deduct parochial school tuition payments). Taxpayers might make
similar claims about payments for church-sponsored counseling sessions
or for medical care at church-affiliated hospitals that otherwise
might not be deductible. Given that, under the First Amendment, the
IRS can reject otherwise valid claims of religious benefit only on
the ground that a taxpayers' alleged beliefs are not sincerely held,
but not on the ground that such beliefs are inherently irreligious,
see United States v. Ballard, 322 U.S. 78 (1944), the resulting tax
deductions would likely expand the charitable contribution provision
far beyond its present size. We are loath to effect this result in
the absence of supportive congressional intent. Cf. United States
v. Lee, 455 U.S. 252, 259 -261 (1982). [490 U.S. 680, 694]
Finally, the deduction petitioners seek might raise problems of entanglement
between church and state. If framed as a deduction for those payments
generating benefits of a religious nature for the payor, petitioners'
proposal would inexorably force the IRS and reviewing courts to differentiate
"religious" benefits from "secular" ones. If framed
as a deduction for those payments made in connection with a religious
service, petitioners' proposal would force the IRS and the judiciary
into differentiating "religious" services from "secular"
ones. We need pass no judgment now on the constitutionality of such
hypothetical inquiries, but we do note that "pervasive monitoring"
for "the subtle or overt presence of religious matter" is
a central danger against which we have held the Establishment Clause
guards. Aguilar v. Felton, 473 U.S. 402, 413 (1985); see also Widmar
v. Vincent, 454 U.S. 263, 272 , n. 11 (1981) ("[T]he University
would risk greater `entanglement' by attempting to enforce its exclusion
of `religious worship' and `religious speech'" than by opening
its forum to religious as well as nonreligious speakers); cf. Thomas
v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 716
(1981).
Accordingly, we conclude that petitioners' payments to the Church
for auditing and training sessions are not "contribution[s] or
gift[s]" within the meaning of that statutory expression. 10
III
We turn now to petitioners' constitutional claims based on the Establishment
Clause and the Free Exercise Clause of the First Amendment. [490 U.S.
680, 695]
A
Petitioners argue that denying their requested deduction violates
the Establishment Clause in two respects. First, 170 is said to create
an unconstitutional denominational preference by according disproportionately
harsh tax status to those religions that raise funds by imposing fixed
costs for participation in certain religious practices. Second, 170
allegedly threatens governmental entanglement with religion because
it requires the IRS to entangle itself with religion by engaging in
"supervision of religious beliefs and practices" and "valuation
of religious services." Brief for Petitioners 44.
Our decision in Larson v. Valente, 456 U.S. 228 (1982), supplies the
analytic framework for evaluating petitioners' contentions. Larson
teaches that, when it is claimed that a denominational preference
exists, the initial inquiry is whether the law facially differentiates
among religions. If no such facial preference exists, we proceed to
apply the customary three-pronged Establishment Clause inquiry derived
from Lemon v. Kurtzman, 403 U.S. 602 (1971). 11
Thus analyzed, 170 easily passes constitutional muster. The line which
170 draws between deductible and non-deductible payments to statutorily
qualified organizations does not differentiate among sects. Unlike
the Minnesota statute at issue in Larson, which facially exempted
from state registration and reporting requirements only those religious
organizations that derived more than half their funds from members,
170 makes no "explicit and deliberate distinctions between different
religious organizations," 456 [490 U.S. 680, 696] U.S., at 246-247,
n. 23, applying instead to all religious entities.
Section 170 also comports with the Lemon test. First, there is no
allegation that 170 was born of animus to religion in general or Scientology
in particular. Cf. Larson, supra, at 254-255 (history of Minnesota
restriction reveals hostility to "Moonies" and intent to
"get at . . . people that are running around airports").
The provision is neutral both in design and purpose.
Second, the primary effect of 170 - encouraging gifts to charitable
entities, including but not limited to religious organizations - is
neither to advance nor inhibit religion. It is not alleged here that
170 involves "[d]irect government action endorsing religion or
a particular religious practice." Wallace v. Jaffree, 472 U.S.
38, 69 (1985) (O'CONNOR, J., concurring in judgment). It may be that
a consequence of the quid pro quo orientation of the "contribution
or gift" requirement is to impose a disparate burden on those
charitable and religious groups that rely on sales of commodities
or services as a means of fundraising, relative to those groups that
raise funds primarily by soliciting unilateral donations. But a statute
primarily having a secular effect does not violate the Establishment
Clause merely because it "happens to coincide or harmonize with
the tenets of some or all religions." McGowan v. Maryland, 366
U.S. 420, 442 (1961); see also Bob Jones University v. United States,
461 U.S. 574, 604 , n. 30 (1983).
Third, 170 threatens no excessive entanglement between church and
state. To be sure, ascertaining whether a payment to a religious institution
is part of a quid pro quo transaction may require the IRS to ascertain
from the institution the prices of its services and commodities, the
regularity with which payments for such services and commodities are
waived, and other pertinent information about the transaction. But
routine regulatory interaction which involves no inquiries into religious
doctrine, see Presbyterian Church in [490 U.S. 680, 697] U.S. v. Mary
Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 451
(1969), no delegation of state power to a religious body, see Larkin
v. Grendel's Den, Inc., 459 U.S. 116 (1982), and no "detailed
monitoring and close administrative contact" between secular
and religious bodies, see Aguilar, 473 U.S., at 414 , does not of
itself violate the nonentanglement command. See Tony and Susan Alamo
Foundation v. Secretary of Labor, 471 U.S. 290, 305 -306 (1985) (stating
that nonentanglement principle "does not exempt religious organizations
from such secular governmental activity as fire inspections and building
and zoning regulations" or the recordkeeping requirements of
the Fair Labor Standards Act) (citation omitted). As we have observed,
supra, at 694, it is petitioners' interpretation of 170, requiring
the Government to distinguish between "secular" and "religious"
benefits or services, which may be "fraught with the sort of
entanglement that the Constitution forbids." Lemon, supra, at
620.
Nor does the application of 170 to religious practices require the
Government to place a monetary value on particular religious benefits.
As an initial matter, petitioners' claim here raises no need for valuation,
for they have alleged only that their payments are fully exempt from
a quid pro quo analysis - not that some portion of these payments
is deductible because it exceeds the value of the acquired service.
Cf. American Bar Endowment, 477 U.S., at 117 (describing "dual
character" payments) (citing, inter alia, Rev. Rul. 68-432, 1968-2
Cum. Bull. 104, 105); see n. 10, supra. In any event, the need to
ascertain what portion of a payment was a purchase and what portion
was a contribution does not ineluctably create entanglement problems
by forcing the Government to place a monetary value on a religious
benefit. In cases where the economic value of a good or service is
elusive - where, for example, no comparable good or service is sold
in the marketplace - the IRS has eschewed benefit-focused valuation.
Instead, it has often employed as an alternative [490 U.S. 680, 698]
method of valuation an inquiry into the cost (if any) to the donee
of providing the good or service. See, e. g., Oppewal v. Commissioner,
468 F.2d 1000, 1002 (CA1 1972) (cost of providing a "religiously-oriented"
education); Winters v. Commissioner, 468 F.2d 778 (CA2 1972) (same);
DeJong v. Commissioner, 309 F.2d 373 (CA9 1962) (same). This valuation
method, while requiring qualified religious institutions to disclose
relevant information about church costs to the IRS, involves administrative
inquiries that, as a general matter, "bear no resemblance to
the kind of government surveillance the Court has previously held
to pose an intolerable risk of government entanglement with religion."
Tony and Susan Alamo Foundation, supra, at 305; cf. Lemon, 403 U.S.,
at 621 -622 (school-aid statute authorizing government inspection
of parochial school records created impermissible "intimate and
continuing relationship between church and state" because it
required State "to determine which expenditures are religious
and which are secular"). 12
B
Petitioners also contend that disallowance of their 170 deductions
violates their right to the free exercise of religion by "plac[ing]
a heavy burden on the central practice of Scientology." Brief
for Petitioners 47. The precise nature of this claimed burden is unclear,
but it appears to operate in two ways. First, the deduction disallowance
is said to deter adherents from engaging in auditing and training
sessions. Second, the deduction disallowance is said to interfere
with observance of the doctrine of exchange, which mandates equality
of an adherent's "outflow" and "inflow." [490
U.S. 680, 699]
The free exercise inquiry asks whether government has placed a substantial
burden on the observation of a central religious belief or practice
and, if so, whether a compelling governmental interest justifies the
burden. Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136,
141 -142 (1987); Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U.S., at 717 -719; Wisconsin v. Yoder, 406 U.S. 205, 220
-221 (1972). It is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith, or the validity of
particular litigants' interpretations of those creeds. Thomas, supra,
at 716. We do, however, have doubts whether the alleged burden imposed
by the deduction disallowance on the Scientologists' practices is
a substantial one. Neither the payment nor the receipt of taxes is
forbidden by the Scientology faith generally, and Scientology does
not proscribe the payment of taxes in connection with auditing or
training sessions specifically. Cf. United States v. Lee, 455 U.S.,
at 257 . Any burden imposed on auditing or training therefore derives
solely from the fact that, as a result of the deduction denial, adherents
have less money available to gain access to such sessions. This burden
is no different from that imposed by any public tax or fee; indeed,
the burden imposed by the denial of the "contribution or gift"
deduction would seem to pale by comparison to the overall federal
income tax burden on an adherent. Likewise, it is unclear why the
doctrine of exchange would be violated by a deduction disallowance
so long as an adherent is free to equalize "outflow" with
"inflow" by paying for as many auditing and training sessions
as he wishes. See 822 F.2d, at 850-853 (questioning substantiality
of burden on Scientologists); 819 F.2d, at 1222-1225 (same).
In any event, we need not decide whether the burden of disallowing
the 170 deduction is a substantial one, for our decision in Lee establishes
that even a substantial burden would be justified by the "broad
public interest in maintaining a sound tax system," free of "myriad
exceptions flowing [490 U.S. 680, 700] from a wide variety of religious
beliefs." 455 U.S., at 260 . In Lee, we rejected an Amish taxpayer's
claim that the Free Exercise Clause commanded his exemption from Social
Security tax obligations, noting that "[t]he tax system could
not function if denominations were allowed to challenge the tax system"
on the ground that it operated "in a manner that violates their
religious belief." Ibid. That these cases involve federal income
taxes, not the Social Security system, is of no consequence. Ibid.
The fact that Congress has already crafted some deductions and exemptions
in the Code also is of no consequence, for the guiding principle is
that a tax "must be uniformly applicable to all, except as Congress
provides explicitly otherwise." Id., at 261 (emphasis added).
Indeed, in one respect, the Government's interest in avoiding an exemption
is more powerful here than in Lee; the claimed exemption in Lee stemmed
from a specific doctrinal obligation not to pay taxes, whereas petitioners'
claimed exemption stems from the contention that an incrementally
larger tax burden interferes with their religious activities. This
argument knows no limitation. We accordingly hold that petitioners'
free exercise challenge is without merit.
IV
We turn, finally, to petitioners' assertion that disallowing their
claimed deduction is at odds with the IRS' longstanding practice of
permitting taxpayers to deduct payments made to other religious institutions
in connection with certain religious practices. Through the appellate
stages of this litigation, this claim was framed essentially as one
of selective prosecution. The Courts of Appeals for the First and
Ninth Circuits summarily rejected this claim, finding no evidence
of the intentional governmental discrimination necessary to support
such a claim. 822 F.2d, at 853 (no showing of "the type of hostility
to a target of law enforcement that would support a claim of selective
enforcement"); 819 F.2d, at 1223 (no "discriminatory intent"
proved). [490 U.S. 680, 701]
In their arguments to this Court, petitioners have shifted emphasis.
They now make two closely related claims. First, the IRS has accorded
payments for auditing and training disparately harsh treatment compared
to payments to other churches and synagogues for their religious services:
Recognition of a comparable deduction for auditing and training payments
is necessary to cure this administrative inconsistency. Second, Congress,
in modifying 170 over the years, has impliedly acquiesced in the deductibility
of payments to these other faiths; because payments for auditing and
training are indistinguishable from these other payments, they fall
within the principle acquiesced in by Congress that payments for religious
services are deductible under 170.
Although the Commissioner demurred at oral argument as to whether
the IRS, in fact, permits taxpayers to deduct payments made to purchase
services from other churches and synagogues, Tr. of Oral Arg. 30-31,
the Commissioner's periodic revenue rulings have stated the IRS' position
rather clearly. A 1971 ruling, still in effect, states: "Pew
rents, building fund assessments, and periodic dues paid to a church
. . . are all methods of making contributions to the church, and such
payments are deductible as charitable contributions within the limitations
set out in section 170 of the Code." Rev. Rul. 70-47, 1970-1
Cum. Bull. 49 (superseding A.R.M. 2, Cum. Bull. 150 (1919)). We also
assume for purposes of argument that the IRS also allows taxpayers
to deduct "specified payments for attendance at High Holy Day
services, for tithes, for torah readings and for memorial plaques."
Foley v. Commissioner, 844 F.2d, at 94, 96.
The development of the present litigation, however, makes it impossible
for us to resolve petitioners' claim that they have received unjustifiably
harsh treatment compared to adherents of other religions. The relevant
inquiry in determining whether a payment is a "contribution or
gift" under 170 is, as we have noted, not whether the payment
secures religious [490 U.S. 680, 702] benefits or access to religious
services, but whether the transaction in which the payment is involved
is structured as a quid pro quo exchange. To make such a determination
in this case, the Tax Court heard testimony and received documentary
proof as to the terms and structure of the auditing and training transactions;
from this evidence it made factual findings upon which it based its
conclusion of nondeductibility, a conclusion we have held consonant
with 170 and with the First Amendment.
Perhaps because the theory of administrative inconsistency emerged
only on appeal, petitioners did not endeavor at trial to adduce from
the IRS or other sources any specific evidence about other religious
faiths' transactions. The IRS' revenue rulings, which merely state
the agency's conclusions as to deductibility and which have apparently
never been reviewed by the Tax Court or any other judicial body, also
provide no specific facts about the nature of these other faiths'
transactions. In the absence of such facts, we simply have no way
(other than the wholly illegitimate one of relying on our personal
experiences and observations) to appraise accurately whether the IRS'
revenue rulings have correctly applied a quid pro quo analysis with
respect to any or all of the religious practices in question. We do
not know, for example, whether payments for other faiths' services
are truly obligatory or whether any or all of these services are generally
provided whether or not the encouraged "mandatory" payment
is made.
The IRS' application of the "contribution or gift" standard
may be right or wrong with respect to these other faiths, or it may
be right with respect to some religious practices and wrong with respect
to others. It may also be that some of these payments are appropriately
classified as partially deductible "dual payments." With
respect to those religions where the structure of transactions involving
religious services is established not centrally but by individual
congregations, the proper point of reference for a quid pro quo analysis
[490 U.S. 680, 703] might be the individual congregation, not the
religion as a whole. Only upon a proper factual record could we make
these determinations. Absent such a record, we must reject petitioners'
administrative consistency argument. 13
Petitioners' congressional acquiescence claim fails for similar reasons.
Even if one assumes that Congress has acquiesced in the IRS' ruling
with respect to "[p]ew rents, building fund assessments, and
periodic dues," Rev. Rul. 70-47, 1970-1 Cum. Bull. 49, the fact
is that the IRS' 1971 ruling articulates no broad principle of deductibility,
but instead merely identifies as deductible three discrete types of
payments. Having before us no information about the nature or structure
of these three payments, we have no way of discerning any possible
unifying principle, let alone whether such a principle would embrace
payments for auditing and training sessions.
V
For the reasons stated herein, the judgments of the Courts of Appeals
are hereby
Affirmed.
JUSTICE BRENNAN and JUSTICE KENNEDY took no part in the consideration
or decision of these cases.
Footnotes
[ Footnote 1 ] Section 170 provides in pertinent part: "(a) Allowance
of deduction "(1) General Rule "There shall be allowed as
a deduction any charitable contribution (as defined in subsection
(c)) payment of which is made within the taxable year. A charitable
contribution shall be allowable as a deduction only if verified under
regulations prescribed by the Secretary. . . . . . "(c) Charitable
contribution defined "For purposes of this section, the term
"charitable contribution" means a contribution or gift to
or for the use of - . . . . . [490 U.S. 680, 684] "(2) A corporation,
trust, or community chest, fund, or foundation - "(A) created
or organized in the United States or in any possession thereof, or
under the law of the United States, any State, the District of Columbia,
or any possession of the United States; "(B) organized and operated
exclusively for religious, charitable, scientific, literary, or educational
purposes, or to foster national or international amateur sports competition
(but only if no part of its activities involve the provision of athletic
facilities or equipment), or for the prevention of cruelty to children
or animals; "(C) no part of the net earnings of which inures
to the benefit of any private shareholder or individual; and "(D)
which is not disqualified for tax exemption under section 501(c)(3)
by reason of attempting to influence legislation, and which does not
participate in, or intervene in (including the publishing or distributing
of statements), any political campaign on behalf of any candidate
for public office. . . ."
[ Footnote 2 ] Auditing is also known as "processing," "counseling,"
and "pastoral counseling." 83 T. C. 575, 577 (1984), aff'd,
822 F.2d 844 (CA9 1987).
[ Footnote 3 ] The petitioner in No. 87-963, Robert L. Hernandez,
was denied a deduction of $7,338 and was assessed a tax deficiency
of $2,245 for 1981. 819 F.2d 1212, 1215 (CA1 1987). Of the petitioners
in No. 87-1616, Katherine Jean Graham was denied a deduction of $1,682
and was assessed a tax deficiency of $316.24 for 1972; Richard M.
Hermann was denied a tax deduction of $3,922 and was assessed a tax
deficiency of $803 for 1975; and David Forbes Maynard was denied a
deduction of $5,000 (including a carryover of $2,385 for contributions
made in 1976) and was assessed a tax deficiency of $643 for 1977.
83 T. C., at 575-579.
[ Footnote 4 ] The stipulation allowed the Tax Court to avoid having
to decide whether the particular branches to which payments were made
in these [490 U.S. 680, 687] cases qualified under 170(c)(2) and 501(c)(3)
of the Code as tax-exempt organizations entitled to receive charitable
contributions. In a separate case decided during the pendency of this
litigation, the Tax Court held that the mother Church in California
did not qualify as a tax-exempt organization under 501(c)(3) for the
years 1970 through 1972 because it had diverted profits to its founder
and others, had conspired to impede collection of its taxes, and had
conducted almost all activities for a commercial purpose. Church of
Scientology of California v. Commissioner, 83 T. C. 381 (1984). The
Court of Appeals for the Ninth Circuit affirmed, basing its decision
solely on the ground that the Church had diverted profits for the
use of private individuals. It did not address the other bases of
the Tax Court's decision. Church of Scientology of California v. Commissioner,
823 F.2d 1310 (1987), cert. denied, 486 U.S. 1015 (1988).
[ Footnote 5 ] Compare Christiansen v. Commissioner, 843 F.2d 418
(CA10 1988) (holding payments not deductible), cert. pending, No.
87-2023; Miller v. IRS, 829 F.2d 500 (CA4 1987) (same), cert. pending,
No. 87-1449, with Neher v. Commissioner, 852 F.2d 848 (CA6 1988) (holding
payments deductible); Foley v. Commissioner, 844 F.2d 94 (CA2 1988)
(same), cert. pending, No. 88-102; Staples v. Commissioner, 821 F.2d
1324 (CA8 1987) (same), cert. pending, No. 87-1382. The rulings for
the taxpayer in the Neher, Foley, and Staples cases rested on statutory,
not constitutional, grounds.
[ Footnote 6 ] The charitable transfer must be made to a qualified
recipient, 170(c), within the taxable year, 170(a)(1), and consist
of cash or qualified property, 26 U.S.C. 170(e)-(h) (1982 ed. and
Supp. V), not exceeding [490 U.S. 680, 689] a specified percentage
of the taxpayer's income in the year of payment or (where a carryover
is permitted) in subsequent years. 26 U.S.C. 170(b), 170(d) (1982
ed. and Supp. V).
[ Footnote 7 ] The portions of these Reports explicating the term
"gifts" actually address a closely related provision of
the Code, 162(b), which refers specifically to 170. Section 162(b)
provides, in pertinent part, that a taxpayer may not deduct as a trade
or business expense a "contribution or gift" which would
have been deductible under 170 were it not for the fact that the taxpayer
had already met the maximum amount (measured as a percentage of income)
which 170(b) permits to be deducted.
[ Footnote 8 ] The sole taxpayer in American Bar Endowment who had
demonstrated the existence of a lower premium insurance program failed
to show that he was aware of this less expensive option at the time
he purchased his insurance. 477 U.S., at 118 .
[ Footnote 9 ] The Tax Court referred to a Church policy directive
which stated: "Price cuts are forbidden under any guise. "1.
PROCESSING MAY NEVER BE GIVEN AWAY BY AN ORG. Processing is too expensive
to deliver. . . . . . "9. ONLY FULLY CONTRACTED STAFF IS AWARDED
FREE SERVICE, AND THIS IS DONE BY INVOICE AND LEGAL NOTE WHICH BECOMES
DUE AND PAYABLE IF THE CONTRACT IS BROKEN." 83 T. C., at 577-578,
n. 5.
[ Footnote 10 ] Petitioners have not argued here that their payments
qualify as "dual payments" under IRS regulations and that
they are therefore entitled to a partial deduction to the extent their
payments exceeded the value of the benefit received. See American
Bar Endowment, 477 U.S., at 117 (citing Rev. Rul. 67-246, 1967-2 Cum.
Bull. 104). We thus have no occasion to decide this issue.
[ Footnote 11 ] "`First, the statute must have a secular legislative
purpose; second, its principal or primary effect must be one that
neither advances nor inhibits religion, Board of Education v. Allen,
392 U.S. 236, 243 (1968); finally, the statute must not foster "an
excessive governmental entanglement with religion." Walz [v.
Tax Comm'n, 397 U.S. 664, 674 (1970)].'" Lemon v. Kurtzman, 403
U.S., at 612 -613, quoted in Larson v. Valente, 456 U.S., at 252 .
[ Footnote 12 ] We do not rule out the possibility that, under the
circumstances of a particular case, an IRS inquiry under 170 into
a religious institution's expenses might raise entanglement problems.
Because petitioners' claim necessitates no valuation inquiry, however,
we need only decide here that such inquiries into cost under 170 generally
pose no constitutional problem.
[ Footnote 13 ] Petitioners argue that an unofficial "question
and answer guidance package" recently issued by an IRS official
requires deductibility of payments for auditing and training sessions.
Referring to the revenue ruling on pew rents, the brochure states
that "fixed payments for similar religious services" are
fully deductible. See IRS Official Explains New Examination-Education
Program on Charitable Contributions to Tax-Exempt Organizations, BNA
Daily Report for Executives, Special Report No. 186, J-1, J-3 (Sept.
26, 1988) (cited in Reply Brief for Petitioners 6). In ascertaining
the IRS' justifications for its administrative practice, however,
our practice is to rely on the agency's official rulings, not on the
unofficial interpretations of particular IRS officials. In any event,
the brochure on which petitioners rely was not included in the record
before the Tax Court or the Courts of Appeals in these cases, and,
in fact, was issued months after we granted certiorari. [490 U.S.
680, 704]
JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, dissenting.
The Court today acquiesces in the decision of the Internal Revenue
Service (IRS) to manufacture a singular exception to its 70-year practice
of allowing fixed payments indistinguishable from those made by petitioners
to be deducted as charitable contributions. Because the IRS cannot
constitutionally be allowed to select which religions will receive
the benefit of its past rulings, I respectfully dissent.
The cases before the Court have an air of artificiality about them
that is due to the IRS' dual litigation strategy against the Church
of Scientology (Church). As the Court notes, ante, at 686-687, n.
4, the IRS has successfully argued that the mother Church of Scientology
was not a tax-exempt organization from 1970 to 1972 because it had
diverted profits to the founder of Scientology and others, conspired
to impede collection of its taxes, and conducted almost all of its
activities for a commercial purpose. See Church of Scientology of
California v. Commissioner, 83 T. C. 381 (1984), aff'd, 823 F.2d 1310
(CA9 1987), cert. denied, 486 U.S. 1015 (1988). In the cases before
the Court today, however, the IRS decided to contest the payments
made to Scientology under 26 U.S.C. 170 rather than challenge the
tax-exempt status of the various branches of the Church to which the
payments were made. According to the Deputy Solicitor General, the
IRS challenged the payments themselves in order to expedite matters.
Tr. of Oral Arg. 26-29. See also Neher v. Commissioner, 852 F.2d 848,
850-851 (CA6 1988). As part of its litigation strategy in these cases,
the IRS agreed to several stipulations which, in my view, necessarily
determine the proper approach to the questions presented by petitioners.
The stipulations, relegated to a single sentence by the Court, ante,
at 686, established that Scientology was at all relevant times a religion;
that each Scientology branch to which payments were made was at all
relevant times a "church" within the meaning of 170(b)(1)(A)(i);
and that [490 U.S. 680, 705] Scientology was at all times a "corporation"
within the meaning of 170(c)(2) and exempt from general income taxation
under 26 U.S.C. 501(a). See App. 38, 52-53; 83 T. C. 575, 576 (1984),
aff'd, 822 F.2d 844 (CA9 1987). As the Solicitor General recognizes,
it follows from these stipulations that Scientology operates for "`charitable
purposes'" and puts the "public interest above the private
interest." Brief for Respondent 30. See also Neher, supra, at
855. Moreover, the stipulations establish that the payments made by
petitioners are fixed donations made by individuals to a tax-exempt
religious organization in order to participate in religious services,
and are not based on "market prices set to reap the profits of
a commercial moneymaking venture." Staples v. Commissioner, 821
F.2d 1324, 1328 (CA8 1987), cert. pending, No. 87-1382. The Tax Court,
however, appears to have ignored the stipulations. It concluded, perhaps
relying on its previous opinion in Church of Scientology, that "Scientology
operates in a commercial manner in providing [auditing and training].
In fact, one of its articulated goals is to make money." 83 T.
C., at 578. The Solicitor General has duplicated the error here, referring
on numerous occasions to the commercial nature of Scientology in an
attempt to negate the effect of the stipulations. See Brief for Respondent
13-14, 23, 25, 44.
It must be emphasized that the IRS' position here is not based upon
the contention that a portion of the knowledge received from auditing
or training is of secular, commercial. nonreligious value. Thus, the
denial of a deduction in these cases bears no resemblance to the denial
of a deduction for religious-school tuition up to the market value
of the secularly useful education received. See Oppewal v. Commissioner,
468 F.2d 1000 (CA1 1972); Winters v. Commissioner, 468 F.2d 778 (CA2
1972); DeJong v. Commissioner, 309 F.2d 373 (CA9 1962). Here the IRS
denies deductibility solely on the basis that the exchange is a quid
pro quo, even though the quid is exclusively of spiritual or religious
worth. Respondent [490 U.S. 680, 706] cites no instances in which
this has been done before, and there are good reasons why.
When a taxpayer claims as a charitable deduction part of a fixed amount
given to a charitable organization in exchange for benefits that have
a commercial value, the allowable portion of that claim is computed
by subtracting from the total amount paid the value of the physical
benefit received. If at a charity sale one purchases for $1,000 a
painting whose market value is demonstrably no more than $50, there
has been a contribution of $950. The same would be true if one purchases
a $1,000 seat at a charitable dinner where the food is worth $50.
An identical calculation can be made where the quid received is not
a painting or a meal, but an intangible such as entertainment, so
long as that intangible has some market value established in a noncontributory
context. Hence, one who purchases a ticket to a concert, at the going
rate for concerts by the particular performers, makes a charitable
contribution of zero even if it is announced in advance that all proceeds
from the ticket sales will go to charity. The performers may have
made a charitable contribution, but the audience has paid the going
rate for a show.
It becomes impossible, however, to compute the "contribution"
portion of a payment to a charity where what is received in return
is not merely an intangible, but an intangible (or, for that matter
a tangible) that is not bought and sold except in donative contexts
so that the only "market" price against which it can be
evaluated is a market price that always includes donations. Suppose,
for example, that the charitable organization that traditionally solicits
donations on Veterans Day, in exchange for which it gives the donor
an imitation poppy bearing its name, were to establish a flat rule
that no one gets a poppy without a donation of at least $10. One would
have to say that the "market" rate for such poppies was
$10, but it would assuredly not be true that everyone who "bought"
a poppy for $10 made no contribution. Similarly, if one buys a $100
seat at a prayer breakfast [490 U.S. 680, 707] - receiving as the
quid pro quo food for both body and soul - it would make no sense
to say that no charitable contribution whatever has occurred simply
because the "going rate" for all prayer breakfasts (with
equivalent bodily food) is $100. The latter may well be true, but
that "going rate" includes a contribution.
Confronted with this difficulty, and with the constitutional necessity
of not making irrational distinctions among taxpayers, and with the
even higher standard of equality of treatment among religions that
the First Amendment imposes, the Government has only two practicable
options with regard to distinctively religious quids pro quo: to disregard
them all, or to tax them all. Over the years it has chosen the former
course.
Congress enacted the first charitable contribution exception to income
taxation in 1917. War Revenue Act of 1917, ch. 63, 1201(2), 40 Stat.
330. A mere two years later, in A.R.M. 2, 1 Cum. Bull. 150 (1919),
the IRS gave its first blessing to the deductions of fixed payments
to religious organizations as charitable contributions:
"[T]he distinction of pew rents, assessments, church dues, and
the like from basket collections is hardly warranted by the act. The
act reads `contributions' and `gifts.' It is felt that all of these
come within the two terms.
"In substance it is believed that these are simply methods of
contributing although in form they may vary. Is a basket collection
given involuntarily to be distinguished from an envelope system, the
latter being regarded as `dues'? From a technical angle, the pew rents
may be differentiated, but in practice the so-called `personal accommodation'
they may afford is conjectural. It is believed that the real intent
is to contribute and not to hire a seat or pew for personal accommodation.
In fact, basket contributors sometimes receive the same accommodation
informally." [490 U.S. 680, 708]
The IRS reaffirmed its position in 1970, ruling that "[p]ew rents,
building fund assessments and periodic dues paid to a church . . .
are all methods of making contributions to the church and such payments
are deductible as charitable contributions." Rev. Rul. 70-47,
1970-1 Cum. Bull. 49. Similarly, notwithstanding the "form"
of Mass stipends as fixed payments for specific religious services,
see infra, at 709, the IRS has allowed charitable deductions of such
payments. See Rev. Rul. 78-366, 1978-2 Cum. Bull. 241.
These rulings, which are "official interpretation[s] of [the
tax laws] by the [IRS]," Rev. Proc. 78-24, 1978-2 Cum. Bull.
503, 504, flatly contradict the Solicitor General's claim that there
"is no administrative practice recognizing that payments made
in exchange for religious benefits are tax deductible." Brief
for Respondent 16. Indeed, an Assistant Commissioner of the IRS recently
explained in a "question and answer guidance package" to
tax-exempt organizations that "[i]n contrast to tuition payments,
religious observances generally are not regarded as yielding private
benefits to the donor, who is viewed as receiving only incidental
benefits when attending the observances. The primary beneficiaries
are viewed as being the general public and members of the faith. Thus,
payments for saying masses, pew rents, tithes, and other payments
involving fixed donations for similar religious services, are fully
deductible contributions." IRS Official Explains New Examination-Education
Program on Charitable Contributions to Tax-Exempt Organizations, BNA
Daily Report for Executives, Special Report No. 186, J-1, J-3 (Sept.
26, 1988). Although this guidance package may not be as authoritative
as IRS rulings, see ante, at 703, n. 13, in the absence of any contrary
indications it does reflect the continuing adherence of the IRS to
its practice of allowing deductions for fixed payments for religious
services.
There can be no doubt that at least some of the fixed payments which
the IRS has treated as charitable deductions, or which the Court assumes
the IRS would allow taxpayers to [490 U.S. 680, 709] deduct, ante,
at 690-691, are as "inherently reciprocal," ante, at 692,
as the payments for auditing at issue here. In exchange for their
payment of pew rents, Christians receive particular seats during worship
services. See Encyclopedic Dictionary of Religion 2760 (1979). Similarly,
in some synagogues attendance at the worship services for Jewish High
Holy Days is often predicated upon the purchase of a general admission
ticket or a reserved seat ticket. See J. Feldman, H. Fruhauf, &
M. Schoen, Temple Management Manual, ch. 4, p. 10 (1984). Religious
honors such as publicly reading from Scripture are purchased or auctioned
periodically in some synagogues of Jews from Morocco and Syria. See
H. Dobrinsky, A Treasury of Sephardic Laws and Customs 164, 175-177
(1986). Mormons must tithe their income as a necessary but not sufficient
condition to obtaining a "temple recommend," i. e., the
right to be admitted into the temple. See The Book of Mormon, 3 Nephi
24:7-12 (1921); Reorganized Church of Jesus Christ of Latter-day Saints,
Book of Doctrine and Covenants 106:1b (1978); Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483
U.S. 327, 330 , n. 4 (1987). A Mass stipend - a fixed payment given
to a Catholic priest, in consideration of which he is obliged to apply
the fruits of the Mass for the intention of the donor - has similar
overtones of exchange. According to some Catholic theologians, the
nature of the pact between a priest and a donor who pays a Mass stipend
is "a bilateral contract known as do ut facias. One person agrees
to give while the other party agrees to do something in return."
13 New Catholic Encyclopedia, Mass Stipend, p. 715 (1967). A finer
example of a quid pro quo exchange would be hard to formulate.
This is not a situation where the IRS has explicitly and affirmatively
reevaluated its longstanding interpretation of 170 and decided to
analyze all fixed religious contributions under a quid pro quo standard.
There is no indication whatever that the IRS has abandoned its 70-year
practice with respect [490 U.S. 680, 710] to payments made by those
other than Scientologists. In 1978, when it ruled that payments for
auditing and training were not charitable contributions under 170,
the IRS did not cite - much less try to reconcile - its previous rulings
concerning the deductibility of other forms of fixed payments for
religious services or practices. See Rev. Rul. 78-189, 1978-1 Cum.
Bull. 68 (equating payments for auditing with tuition paid to religious
schools).
Nevertheless, respondent now attempts to reconcile his previous rulings
with his decision in these cases by relying on a distinction between
direct and incidental benefits in exchange for payments made to a
charitable organization. This distinction, adumbrated as early as
the IRS' 1919 ruling, recognizes that even a deductible charitable
contribution may generate certain benefits for the donor. As long
as the benefits remain "incidental" and do not indicate
that the payment was actually made for the "personal accommodation"
of the donor, the payment will be deductible. It is respondent's view
that the payments made by petitioners should not be deductible under
170 because the "unusual facts in these cases . . . demonstrate
that the payments were made primarily for `personal accommodation.'"
Brief for Respondent 41. Specifically, the Solicitor General asserts
that "the rigid connection between the provision of auditing
and training services and payment of the fixed price" indicates
a quid pro quo relationship and "reflect[s] the value that petitioners
expected to receive for their money." Id., at 16.
There is no discernible reason why there is a more rigid connection
between payment and services in the religious practices of Scientology
than in the religious practices of the faiths described above. Neither
has respondent explained why the benefit received by a Christian who
obtains the pew of his or her choice by paying a rental fee, a Jew
who gains entrance to High Holy Day services by purchasing a ticket,
a Mormon who makes the fixed payment necessary for a temple recommend,
or a Catholic who pays a Mass stipend, [490 U.S. 680, 711] is incidental
to the real benefit conferred on the "general public and members
of the faith," BNA Daily Report, at J-3, while the benefit received
by a Scientologist from auditing is a personal accommodation. If the
perceived difference lies in the fact that Christians and Jews worship
in congregations, whereas Scientologists, in a manner reminiscent
of Eastern religions, see App. 78-83 (testimony of Dr. Thomas Love),
gain awareness of the "immortal spiritual being" within
them in one-to-one sessions with auditors, ante, at 684-685, such
a distinction would raise serious Establishment Clause problems. See
Wallace v. Jaffree, 472 U.S. 38, 69 -70 (1985) (O'CONNOR, J., concurring
in judgment); Lynch v. Donnelly, 465 U.S. 668, 687 -689 (1984) (concurring
opinion). The distinction is no more legitimate if it is based on
the fact that congregational worship services "would be said
anyway," Brief for Respondent 43, without the payment of a pew
rental or stipend or tithe by a particular adherent. The relevant
comparison between Scientology and other religions must be between
the Scientologist undergoing auditing or training on one hand and
the congregation on the other. For some religions the central importance
of the congregation achieves legal dimensions. In Orthodox Judaism,
for example, certain worship services cannot be performed and Scripture
cannot be read publicly without the presence of at least 10 men. 12
Encyclopaedia Judaica, Minyan, p. 68 (1972). If payments for participation
occurred in such a setting, would the benefit to the 10th man be only
incidental while for the personal accommodation of the 11th? In the
same vein, will the deductibility of a Mass stipend turn on whether
there are other congregants to hear the Mass? And conversely, does
the fact that the payment of a tithe by a Mormon is an absolute prerequisite
to admission to the temple make that payment for admission a personal
accommodation regardless of the size of the congregation?
Given the IRS' stance in these cases, it is an understatement to say
that with respect to fixed payments for religious [490 U.S. 680, 712]
services "the line between the taxable and the immune has been
drawn by an unsteady hand." United States v. Allegheny County,
322 U.S. 174, 176 (1944) (Jackson, J.). This is not a situation in
which a governmental regulation "happens to coincide or harmonize
with the tenets of some or all religions," McGowan v. Maryland,
366 U.S. 420, 442 (1961), but does not violate the Establishment Clause
because it is founded on a neutral, secular basis. See Bob Jones University
v. United States, 461 U.S. 574, 604 , n. 30 (1983). Rather, it involves
the differential application of a standard based on constitutionally
impermissible differences drawn by the Government among religions.
As such, it is best characterized as a case of the Government "put[ting]
an imprimatur on [all but] one religion." Gillette v. United
States, 401 U.S. 437, 450 (1971). That the Government may not do.
The Court attempts to downplay the constitutional difficulty created
by the IRS' different treatment of other fixed payments for religious
services by accepting the Solicitor General's invitation to let the
IRS make case-specific quid pro quo determinations. See ante, at 702
("The IRS' application of the `contribution or gift' standard
may be right or wrong with respect to these other faiths, or it may
be right with respect to some religious practices and wrong with respect
to others"). See also Brief for Respondent 41-42. As a practical
matter, I do not think that this unprincipled approach will prove
helpful. The Solicitor General was confident enough in his brief to
argue that, "even without making a detailed factual inquiry,"
Mormon tithing does not involve a quid pro quo arrangement. Id., at
43-44. At oral argument, however, the Deputy Solicitor General conceded
that if it was mandatory, tithing would be distinguishable from the
"ordinary case of church dues." Tr. of Oral Arg. 36-37.
If the approach suggested by the Solicitor General is so malleable
and indefinite, it is not a panacea and cannot be trusted to secure
First Amendment rights against arbitrary incursions by the Government.
[490 U.S. 680, 713]
On a more fundamental level, the Court cannot abjure its responsibility
to address serious constitutional problems by converting a violation
of the Establishment Clause into an "administrative consistency
argument," ante, at 703, with an inadequate record. It has chosen
to ignore both longstanding, clearly articulated IRS practice, and
the failure of respondent to offer any cogent, neutral explanation
for the IRS' refusal to apply this practice to the Church of Scientology.
Instead, the Court has pretended that whatever errors in application
the IRS has committed are hidden from its gaze and will, in any event,
be rectified in due time.
In my view, the IRS has misapplied its longstanding practice of allowing
charitable contributions under 170 in a way that violates the Establishment
Clause. It has unconstitutionally refused to allow payments for the
religious service of auditing to be deducted as charitable contributions
in the same way it has allowed fixed payments to other religions to
be deducted. Just as the Minnesota statute at issue in Larson v. Valente,
456 U.S. 228 (1982), discriminated against the Unification Church,
the IRS' application of the quid pro quo standard here - and only
here - discriminates against the Church of Scientology. I would reverse
the decisions below. [490 U.S. 680, 714]
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