Got Orthonomics in your Email Box?

Tuesday, September 13, 2011

Parsonage for Women: A Money Saving Idea

Hat Tip: a reader

Avi Chai Foundation, based on an essay by Rabbi Michael Broyde, is making the case for female day school/Bais Yaakov teachers to qualify for parsonage.

Parsonage allows a religious institution to pay a "minister" a housing allowance (in short, an amount not to exceed the lower of actual cost or fair market value of a furnished home + utilities + repairs). The institution benefits as parsonage is not subject to the employer payroll tax.

The employee benefits as the parsonage is not subject to Federal Tax. (It does however count as income for the purposes of the Earned Income Credit). The employee pays both halves of the social security tax on their earnings and parsonage. But, because those receiving parsonage are employees rather than a contractors, employers can offer other tax advantaged benefits.

Obviously the female Rabbinate in the Reform and Conservative movement qualify to take parsonage in full. [Updated: I believe that a yoetzet halacha would certainly qualify]. The case for parsonage for Orthodox female religious study staff is a harder case to make given that there are no formal programs for female religious leaders.

I think Rabbi Broyde makes an interesting argument, but not one I'm particularly comfortable with. His argument is as follows:

The Jewish legal tradition lacks almost any ecclesiastical function that can be performed by ordained rabbis only and recognizes that lay leadership can rise to the level of clergy in functionality, form, title and duties…. [I]in many yeshivas, some women serve in roles identical to those served by rabbis, e.g., supervising prayer, providing religious guidance, teaching sacred texts with religious fervor, conducting themselves as religious role models, and otherwise serving sacerdotal functions. These women are entitled to the parsonage allowance exclusion according to the laws of the United States”.

Certainly we aren't the only tradition for which lay leaders can perform any function. In fact, I believe that the Mormon Church has only lay leaders who have achieved various ascending rank who serve as lay leaders and preside over religious life in addition to regular employment.

Also, it is hard to have a leg to stand upon regarding women having a leadership function when the Orthodox world has been fighting such within its own daled amot. There is, shall we say, little precedent.

According to the Avi Chai blog post, there are already Modern Orthodox and Chareidi schools claiming parsonage for women. I don't believe that this is done where I am and I don't know any CPA that would recommend as such.

So, feel free to comment here or there. I don't think this is a shoe-in, especially as parsonage is generally reserved for those who are ministers inside of churches (or Rabbis inside of synagogues). I know of no other religious group, save the Amish, that has their own schooling system. I think there is a fine line between taking full advantage of the tax law and acting rashly. But, there is no question that there are savings to be recognized.

Some after notes and thoughts:

**I certainly believe that functioning yoetzet halacha would qualify for parsonage.

**It would be interesting if those who work in the schools could give the readership an idea of what percentage of women limudei kodesh teachers have husbands who do NOT have a parsonage through their own Rabbinic post or teaching post. I don't want to venture a guess, but at least as you move right on the spectrum, it is my observation that kli kodesh come in pairs.

**Worthwhile reading (hat tip: Tax Prof blog). Cordozo Law and Gender Journal, ORTHODOX JEWISH WOMEN AND ELIGIBILITY FOR THE PARSONAGE EXEMPTION, Jacob Lewin analyzes Rabbi Broyde's view which he views as overstepping and perhaps even abusive. Excellent read.

Some tests:

1. Does the person administer sacerdotal functions customarily
administered only by clergy? 2. Does the person conduct worship
services? 3. Does the person perform services in the control, conduct, and
maintenance of a religious organization? 4. Is the person considered a
spiritual leader by his or her religious body? 5. Does the person have a
formal license, commission or ordination?

47 comments:

JS said...

Interesting, the desire for more (free) money to be pumped into the communities is being pitted against the desire to avoid modernity and continue antiquated notions about women and their inability to perform tasks traditionally performed by men. I wonder which will win out.

The real question though is how in the world parsonage is even remotely constitutional under the first amendment. Tax breaks that extend only to religious institutions solely because they are religious institutions.

tesyaa said...

JS, good point. Interestingly, if the community would accept a formal "Rabbah" designation to bestow upon women (while still not allowing them to pasken), that would probably solve any parsonage issue.

But the community violently resists even a legitimate conferring of the "Rabbah" title as antithetical to Orthodoxy. The title alone is verboten, even when the woman who has it acts in an appropriately Orthodox fashion.

JLan said...

The following are guidelines used by several schools in the NY area, on the advice of a major law firm which has committed to defending them should any cases be brought:


"Requirements for female teachers to apply for a parsonage election:
1. The teacher must be a practicing Orthodox Jewess who adheres to the standards of Orthodox Jewish law both in school and in her personal life.
2. The teacher must be the head teacher responsible for a class.
3. The teacher must be contracted to work not less than 18 hours/week.
4. The primary subject(s) being taught by the teacher must be: Hebrew Bible, Jewish law and customs, Talmud, and/or prayer.
5. The teacher’s daily responsibilities must include leading students in prayer services that occur during their hours of teaching and teaching their students the liturgy associated with these prayers in a manner appropriate to the age level of their students.
6. The teacher must have been trained at an Orthodox Jewish theological seminary in the United States or Israel or have undergraduate and/or graduate training in the relevant subject matter from an Orthodox Jewish institution such as Yeshiva University. Teachers should submit proof of their training including any certificate issued by a seminary or proof of degree from other institutions."

I've always presumed that "leading" in number 5 would include running the service (e.g. stopping the service when people are talking, saying when to sit or stand, etc.), but I've never asked, since I'm not female and wouldn't fit under other qualifications otherwise.

Anonymous said...

Parsonage should be reserved for clergy of "churches" - not schools. I really have a problem with any rabbi receiving parsonage for a teaching job, even if he or she leads services at the school. It's really a way to get out of paying taxes, which means that I have to pay more to cover their lack of payment.

AztecQueen2000 said...

Even the Catholic Church has a form of female clergy--they're called nuns! Why can't we have an identical system whereby a woman can become a community spiritual leader, but not a Rabbi?

Anonymous said...

Anon 7:05 - Excellent points. If I was writing the tax code, I would not allow tax deductions or exemptions for any religious organizations, other than specific programs run by religious organizations to serve the needy, like food pantries, senior citizen centers and homeless shelters and only if the benefits of such programs were open to all without regard to religion or ethnicity.

Brian nagorsky said...

I would think that orthodoxy has created a problem because you need have consistency with your "clergy" to qualify for parsonage.

From the IRS website:

"Ministers defined. Ministers are individuals who are duly ordained, commissioned, or licensed by a religious body constituting a church or church denomination. They are given the authority to conduct religious worship, perform sacerdotal functions, and administer ordinances or sacraments according to the prescribed tenets and practices of that church or denomination.

If a church or denomination ordains some ministers and licenses or commissions others, anyone licensed or commissioned must be able to perform substantially all the religious functions of an ordained minister to be treated as a minister for social security purposes. "

While I'm not an attorney, I don't think teacher qualify. I think you have to be a "minister" to get parsonage.

JS said...

Anon 7:05,

Why exactly should a rabbi of a congregation or a priest/minister of a church receive a tax break? Forget about teachers, why should "real" clergy receive a tax break? The fact that this is constitutional boggles the mind if one thinks about it.

The government basically forces people to support religious institutions by exempting these institutions from taxes. Your property taxes are higher, your income taxes are higher.

If the government went around and told everyone to cough up $1 to pay for religious institutions, people would be up in arms. They do it backhandedly like this and people don't complain. Ironic since the original law against government involvement in religion was in Virginia and stemmed from Patrick Henry's desire to pass a law forcing people to pay a tax for churches.

Institutions should get a tax break if they are genuine 501(c)(3)s that engage in charitable works. Why should a shul that just conducts prayer services get any benefit? Why should it's rabbi who just gives shiurim? How is it any different than a club where people get together to discuss philosophy and science and ponder morality and our place in the Universe? Should the club's president get a tax break?

ADDeRabbi said...

This is precisely the reason that I have been in favor (since even before the "Maharat" business) of finding some title that recognizes Orthodox women. Additionally, Orthodox women are unable to win non-congregational rabbinic positions (Hillels, NPOs, etc.) that are overwhelmingly populated by non-Orthodox female rabbis, despite the fact that Orthodox women are more than qualified.
(For these and other reasons, see here: http://adderabbi.blogspot.com/2009/07/follow-up-n-issue-of-ordaining-women.html)

With regard to why parsonage makes sense, the idea is that when where one lives is part of their job, as it is for many pastors, living expenses become part of the job. Rabbis spend lots of time on the phone with their congregants, must live near their congregants, must be available to their congregants by email, mobile phone, etc. Parsonage recognizes that expenses of this sort should be accounted for separately from the regular income. Additionally, it used to be that the church or shul owned a house where the rabbi lived. The house was actually called a parsonage. The pastor living there was thus treated as something that wasn't quite salary, but still part of the income.

Having been a teacher in an out-of-town Modern Orthodox high school, I can attest that the considerations that warrant parsonage exemptions in the first place apply to teachers as well. No community wants teachers who show up, teach, and leave. They view their educators - men and women alike - as role models and pastors. There is no reason they should not be able to claim parsonage.

Anonymous said...

ADDeRabbi: So if what you say is true, then public school teachers and principals should also get to claim parsonage. We also want police, firemen and doctors living nearby and being community models and being accessible off hours, so they should get it too. We also need plumbers and electricians nearby for after hours emergencies and the list goes on and on until only telemarketers and reality show producers don't get the tax break.

Abba's Rantings said...

ANON:

"Parsonage should be reserved for clergy of "churches" - not schools. I really have a problem with any rabbi receiving parsonage for a teaching job, even if he or she leads services at the school."

agreed. the question isn't if women teachers can get parsonage, but why should men?

"It's really a way to get out of paying taxes, which means that I have to pay more to cover their lack of payment."

well then you have a problem not with parsonage but with the underlying fundamentals of our tax code (and it plethora of deductions for specific populations or other reasons)

ANON:

"ADDeRabbi: So if what you say is true, then public school teachers and principals should also get to claim parsonage."

great point. or even limude chol teachers in jewish schools.

JS said...

What it really boils down to is government has no business giving financial incentives on the basis of religion. That is the fundamental principle behind the Establishment Clause in the First Amendment. The parsonage rule is simple: are you a minister of the gospel? If yes, you get a tax break. This is a gross violation of the First Amendment as the only criteria for the exemption is whether a person fulfills a certain role in a religious institution.

The tax break should be eliminated. If that results in "ministers of the gospel" being paid too little because now they have to pay taxes like everyone else, then the religious institutions that employ them should make up the difference. It's no different than having to pay more to a worker that files a W2 as opposed to paying someone cash under the table. The religious institution will pass the cost off to its members who, if they value the services of this "minister of the gospel", will open up their wallets and give more donations and dues. If they don't value the service, the "minister" will either accept less wages or pursue other employment. It's the free market and government shouldn't artificially inflate the market for religious leaders through tax incentives.

The same applies equally to property tax breaks merely because an institution is religious. If people are committed to their religion and its institutions they should be willing to pay for it.

ProfK said...

JS, those property tax breaks don't come solely on the basis of an institution's being religious--they are under the rubric of "non-profit" organization, and those non-profit organizations get that property tax break, religious or not. As non-profit is presently legally structured, take away the tax break from shuls and you will also be taking it away from homeless shelters, from shelters for abused women or children, and the whole slew of service organizations that are in business to help people, not to make money. (And thanks for this info to a friend who is an IRS court judge.)

Re the rush to parsonage for women, be careful of what you wish for. When more people rush to get a tax break, the IRS becomes more watchful of just who is asking for that break. Far from resulting in more breaks for the women it might result in less breaks for the men. Fact: not all those who are "rabbis" teaching in yeshivas are entitled to that name--they don't have smicha,the "ordination" that the IRS requires. (Not saying that they may not be learned but they aren't ordained rabbis). Many a yeshiva that has young men (and some older ones too) who are yeshiva students, perhaps studying for smicha, perhaps not, who are teachers in the limudei kodesh programs and who go by the honorific "Rabbi." To my knowledge, the IRS doesn't require you to file a notarized certificate of authenticity to back up a claim of being a rabbi. If yeshiva X is giving person Y parsonage and calling him Rabbi Y then he must be a rabbi, right--not.

Anonymous said...

ProfK: I think that is exactly JS's point -- tax codes should be revised so that religious institutions don't get tax breaks, they should be reserved for truly charitable purposes - like feeding and housing the poor, and I agree. As for parsonage, there is too much room for shtick even if there are ways to do it that are legal under the current tax code.

Miami Al said...

JS,

Because America was founded as a Protestant nation without a centralized national church. Part of America's congregationalist nature was that outside of the major urban centers like Boston with a centralized Church (Massachusetts has an official state established church in the early days of the Republic), small towns had a Church was a Pastor. Their Minister and his wife lived there, often upstairs was their home, downstairs was the Church.

As the Feds started taxing income, and barter was a part of income, this would permit the Federal government to demand income taxes for the implied value for the Ministers free "rent." That would be an outrageous involvement of the Federal Government into the private affairs of a Church (don't think rich Shul of doctors/lawyers in Teaneck, think small Country Church with 20 families, farmers and craftsmen, who own one suit for 10+ years as their "Sunday Best"), so this was carved out by Congress.

Notice the law says "Minister of the Gospel," newsflash, Jewish Rabbis and Catholic priests are NOT Ministers of the Gospel. However, since US law doesn't permit explicit discrimination like that, it was permitted to Catholic/Jewish/Muslim "ministers," despite the fact that our ministries don't look like that.

The "allowance" approach was to deal with the fact that in the later build out, the ministers would own their own home and how to deal with it. Alternatively, the Minister could own the building and the church, collect tax-free and tax-deductible donations, and have a mess, so as the tax code got more complicated, this kept the traditional carveout without complicating it.

We are totally abusing Parsonage for Yeshiva teachers, we are probably using it perfectly correctly for a Shul Rabbi, since part of his job is living nearby so he can service his community.

It's only mind boggling if you have lived your entire existence on the eastern Seaboard and have no appreciation for the role that the small protestant church filled as we settled this country from sea to shining sea, and protecting those small churches in the heartland is merely showing respect for the people that grow our food, populate our armed forces, and generally make it possible for us to sit at desks and earn gobs of money on the coasts.

JS said...

ProfK,

Yes, they are under the rubric of 501(c)(3)s. However, you haven't explained why 501(c)(3) exemptions couldn't simply continue without the "religious purpose" criterion. Why can't a shul or church apply under the "charitable purpose" criterion? If they're truly a charitable organization, let them get the exemption like any other charitable organization. If, instead, they merely exist as a place for people to pray, then why should they get the exemption exactly? Why should the benefit inure for a purely religious purpose? And, further, how is that exemption for a purely religious purpose constitutional?

Also, churches and synagogues receive tax breaks that other 501(c)(3)s do not receive. Namely, they don't have to withhold taxes from ministers, a minister's gross income does not include parsonage, there's no FICA tax for ministers. Also, the IRS has only limited authority to audit a church or synagogue as opposed to other 501(c)(3)s.

Everyone's just looking for a government handout. Now they want women to get the handout (though they don't want to ordain them to get it). Aside from the constitutionality issues, it's just so hypocritical. The same people who whine about other government handouts such as welfare have a "gimme gimme" attitude if the government decides to favor them or their group with a handout.

If the law were to change and only true charitable organizations got the exemption every single shul and school and rabbi would be out of luck as hardly any of these would qualify.

Anonymous said...

The only way a Orthodox female can generally get an accepted Rabbinical title is by marrying. It is called being a Rebbetzin.

JS said...

Al,

I'm well-aware of the history you recited. It doesn't change my opinion one bit. The nonsense about not wanting to get involved in the affairs of the church as a violation of free exercise is farcical. In the case of parsonage we're just talking about calculating the value of a housing allowance. The IRS already has to do this in order to figure out if the allowance being claimed is too high. Besides, the IRS has been granted limited powers to audit churches when need be. It's no different than auditing any other organization, they just can't question religious dogma in the process (rather, they can, but this too is limited).

I understand the purpose of the exemptions and the protestant nature of our country at its founding. But, there's a reason the founders decided to include the First Amendment with its Establishment Clause. It was based on Virginia's Statute for Religious Freedom (drafted by Jefferson) which was enacted in opposition to then-governor Patrick Henry's support for a bill requiring public support for churches:

"...that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical;

that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness.."

See also Madison's Memorial and Remonstrance:

"3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entagled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"

Miami Al said...

JS,

The First Amendment prevented Virginians from having to suffer the Church of Massachusetts being established. If the Founders knew that the first amendment would be used to protect the rights of Papists (The Catholic Church), Christ-killers (Jews), and "Moors" (Muslims), it might not have made it into the Constitutions.

The IRS has the power over this for rich churches with abusive housing allowances in major counties. For anyone using Parsonage "correctly," the IRS has no involvement.

Young Minister and his Wife start up a Ministry in rural Iowa, buy a building, and live upstairs with their children. The Church gets donations from the collection plate, he pays the Mortgage out of it. No IRS involvement with "implied rent" unless he chooses to do it.

Removing this requires the young Minister to retain an accountant to run his church properly.

Because of America's historical congregationalist roots (which American Jewish Orthodoxy has taken FULL advantage of), he can do so without needing to prove anything to the state. Small businesses don't get that pass, but small churches do.

In an Orthodox Jewish context, a group of doctors/lawyers get fed up that the Kiddush club permits 15 year scotches AND disbands before Musaf. Fed up with this, they buy a small run down building in town and bring a 25 year old Chabad Rabbi in that won't interfere with them. He can live in the "Shul" and teach during the week to put food on the table. The "Shul" doesn't need anything complicated, as long as these guys cover the mortgage each month as "donations" to the "church."

If you take Parsonage away, they need to employ him on a W-2, run payroll, etc. Parsonage serves that purpose well.

I think that it is a net positive for a country founded on religious liberty to let people set up a religious organization with very limited paperwork and processing, lowering to costs of entry. If one of the side effects of that is that extremely rich Orthodox Jewish Heads of School (earning 250k+ before Parsonage) get to abuse parsonage, we'll just call it a cost of freedom.

JS said...

Al,

I'm not going to get into a debate on the Founder's ideology. I quoted above what Madison and Jefferson believed and fought for in their own state of Virginia (the bill they passed prevented Virginia from collecting funds to support any religious organization). Madison was instrumental in the sponsoring and rallying of support for the First Amendment (which applied to the Federal Government, not to any state - it was not done out of fear of what Massachusetts would do). The First Amendment was not applied to the states until the 1940's (Establishment Clause - Emerson v. Board).

As for all your arguments about how much easier it is for small churches, why does that matter? Think in a free market sense. People decide if they want to pay the cost for a good or service. Without the government subsidy, "religion" (loosely speaking) costs more. If people value religion enough they will pay the costs of the extra CPAs and W2s and whatnot.

Who cares about the difference between small poor midwest churches and some rich doctors and lawyers ticked off about a kiddush club who start their own shul? It makes no difference. Financial support for religion is the same regardless.

ProfK said...

"If the law were to change and only true charitable organizations got the exemption every single shul and school and rabbi would be out of luck as hardly any of these would qualify."

JS, contradictory statement--it's either "every single" or "hardly any" but can't be both. Not accurate either as regards a whole lot of shuls. Every single shul I've ever davened in--large or small--has been active in charitable/chesed concerns. In some cases the only Bikur Cholim in a community comes through a shul. All the shuls I've davened at have had special funds for the needy, generally administered by the Rav of the shul, sometimes by a shul committee. There have been emergency funds for when tragedy hits a community member. Many shuls have their own version of "Tomchei Shabbos," whereby they help to feed those of the shul who find themselves with no means to purchase food. There are regular appeals for a large variety of charitable concerns, some personal to a community and some for the broader Klal that we are all part of. One shul I was in paid the expenses of burying an older member who died because the remaining spouse was also elderly and with no funds available to her for anything--yes, this qualifies as charity.

Frankly, at least in my experience, shuls are charitable institutions in the full definition of the word. Might there be some that are strictly "minyan factories"? Probably, but they are the exceptions, not the rule.

Miami Al said...

"As for all your arguments about how much easier it is for small churches, why does that matter? Think in a free market sense. People decide if they want to pay the cost for a good or service. Without the government subsidy, "religion" (loosely speaking) costs more. If people value religion enough they will pay the costs of the extra CPAs and W2s and whatnot."

Because our government, through it's elected officials, saw fit to protect a part of America's heritage (the small Church) from the encroaching tax code. I agree with it.

The free market is very important, as are the spiritual needs of the masses. Very small towns/villages have spiritual needs, and the Parsonage structure is the most neutral way we have to help make it possible to service those needs.

I realize that we have commoditized our religion. I respect that for the majority religion in this country, they haven't commoditized it into something to be packaged and sold, and a system that helps them out is a good thing for the country.

Or perhaps it's just our political differences. The people that attend small rural churches are my political allies, and your political enemies. The people that don't affiliate with any religious institution are your political allies. Therefore, a system that makes small churches viable benefits "my side," while a system that discourages religion for those without wealth helps your side.

We "found religion" with a small Orthodox affiliated Shul. My Christian friends "found Jesus" in small country churches when they grew distant from their family's denominations. I have an affinity for small religious institutions, and think that they are good for their community AND the country.

JS said...

ProfK,

Seriously? You're focusing on a syntax mistake I made when I wrote quickly?

Here's a corrected version:
"If the law were to change and only true charitable organizations got the exemption NEARLY every single shul and school and rabbi would be out of luck as hardly any of these would qualify."

The examples you give of a shul's charitable works may or may not qualify it as a charitable organization under 501(c)(3). To qualify, one of the requirements is that the organization be organized and operated exclusively for a charitable purpose. I don't think having a Tomchei Shabbos or a Bikur Cholim in addition to prayer services, hiring a rabbi, having social events such as kiddush, etc. would qualify. Think of a regular company. Many companies have clothing drives, sponsor 5k's for breast cancer awareness, donate to charitable causes, etc. but they aren't charitable organization. The shuls would have to do what every other company does that has a charitable arm, form a company that ONLY does the charitable works. So, you could have your shul for prayer and it could have a subsidiary organization established just for charitable works that is a 501(c)(3). Your membership dues are not deductible. Your donations to the shul's tomchei shabbos subsidiary are.

What's so bad about that?

Anonymous said...

ProfK: Yes, many shuls and churches do do a lot of charitable work, but by far the primary function and majority of the expenditures, including clergy salaries and benefits and the buildings themselves, are for indoctinating the congregation in the religion and conducting services and rituals. Only contributions that are used for the charitable purposes should be deductible - i.e. have separate funds. The book-keeping really isn't that complicated. For example, I do volunteer work for a non-profit. They get some federal grants that requires them to allocate and segregate expenses to make sure the grant moeny is only used for designated purposes and not to subsidize the organization's other functions. It

JS said...

Al,

You misunderstand me. This isn't political to me and it has nothing to do with political allies. If anything, the position I'm taking here would hurt me financially if enacted as many of my contributions would not be eligible for an itemized deduction. Further, I have no desire to hurt small churches or synagogues or prevent them from forming and thriving. This is purely an ideological issue.

Like Madison and Jefferson I don't believe the government should sponsor or financially aid religion. It's bad for government and it's bad for religion. I don't want my government pushing religious ideas or dogmas, that is a matter of personal choice. I don't want my religion bending to meet government regulations. Both are "purer" when they don't involve themselves with the other.

The fact that religion or small churches or whatever is part of our heritage is irrelevant. The First Amendment is also part of our heritage. Those religious institutions will continue to form and thrive without a tax break. The government doesn't need to and shouldn't incentivize the formation of churches. Communities that desire religious instruction and spiritual guidance can put their money where their souls are (so to speak) and pay up just like everyone else.

conservative scifi said...

JS

I would comment that the more rightwing you get on the Jewish spectrum, the more "minyan" factory like a shul will be. Certainly, the number of people involved in social action in any reform synagogue is probably 10 times the number who actually participate in a religious service. In conservative synagogues, there is a wider range, but social action still probably equals, if not exceeds, ritual participation on any day other than Erev Yom Kippur (and even then, many conservative synagogues in my area collect thousands of pounds of food for the poor on Erev Yom Kippur).
Only when you reach modern orthodoxy and especially chareidi orthodoxy, do you see religion predominate over social action.

So you criteria might not affect reform synagogues much at all, would probably impact conservative synagogues a bit, and would significantly impact the orthodox movement. But I do respect your integrity in suggesting a plan which more dramatically affects orthodoxy.

Anonymous said...

Al: Its silly to accuse JS of not liking the people who go to small churches or synagogues. And, I doubt that the parsonage exemption originated fo is primarilly used by or for the rural country minister. When one thinks of parsonage, one thinks of catholic priests and nuns who truly live in a house on church property that they share with others. I suspect that the parsonage exemption had a lot to do with the Catholic church.

ProfK said...

Sorry JS, but if you'll remember I'm an English professor and errors irk me. Sigh, that wasn't a syntax error either but was a logic error that invalidated the argument by making it contradictory. Syntax specifically refers to the pattern of formation of sentences.

Anonymous said...

ProfK: The argument was not a logic error, just a mistake in word choice. We all understood what JS meant. I trust that as an English Professor, you understand that picking on minor word choice foibles is not particularly effective advocacy for a position as it signals that the nitpicker does not have a substantive argument, or if she does, it distracts greatly from whatever the substantive points might be.

Dave said...

This is one of those issues in which I'm torn.

On the one hand, the blanket exemptions from property taxes and other tax benefits given to religious organizations purely because they are religious bothers me. That shifts the burden across everyone else, and it can be especially burdensome in small communities with a large block of exempt properties.

And the abuse of the tax exemptions (the people who stick a shteebl or church in their basement, based purely on the tax benefit it gives them, the "nonprofits" which pay exorbitant salaries or funnel "charitable" spending to businesses or goals which benefit the donors or officers) angers me greatly.

But the flip side is that it is also easy for taxation to be used to crush religious groups, especially unpopular religious groups.

So much as I dislike it, and much as I want to see the abuses curtailed, I think the cure of removing the blanket tax protections is worse than the disease.

(That being said, I'd kill the Charitable Giving Tax Deduction in a heartbeat.)

JS said...

Dave,

"But the flip side is that it is also easy for taxation to be used to crush religious groups, especially unpopular religious groups."

To be clear, I'm not proposing additional taxes on religious groups (popular or unpopular). Just that they not be given exemptions. In other words, treat them like every other group. Imposing a "religious tax" that only targets religious persons or organizations would certainly be unconstitutional.

Miami Al said...

JS,

Right, no special taxes for religious groups...

However, you have no problems with the IRS "assessing" the value of in-kind services for religious groups OR local assessment authorities assigning property value assessments, particularly if they can assess it for "best usage" instead of current usage.

Small Mosque not desired, well, if that half acre building had a 40 story apartment complex on it, it would owe $1M in property taxes, there you go, sorry, can't pay, get out of town.

What, this Church does obnoxious things like protest causes we don't like, and the pastor lives in the Church? How about we assign $1M in value to that housing? Can't afford it, we'll see you in tax court.

That's why the "lesser evil" is to leave religious groups ENTIRELY alone and just deal with the abuses.

Abba's Rantings said...

JS:

"Everyone's just looking for a government handout."

so then i take it that you forgo all the deductions you qualify for when filing taxes?

i understand the objection to a tax benefit based on a religious qualifier. but to object to tax benefits in general (in this context "Everyone's just looking for a government handout") is to object to the fundamental nature of our tax code.

Anonymous said...

Miami Al: Singling out a church/synagogue for differential tax treatment like in scenario would be unconstitutional. Just because hypothetically that could happen, doesn't mean we just shouldn't tax churches at all like all other landowners. For example, suppose a town didn't like a bookstore because people didn't like the books being sold it could over tax it. That would be unconstitutional. Just because the town could abuse its powers and violate the first amendment doesn't mean we should say lets not tax retail stores. Your argument is like saying because police can abuse their powers to arrest people, don't let the police arrest anyone.

JS said...

Abba,

That wasn't meant as an indictment of the entire tax code, but as an indictment of those who seek to manipulate the tax code (or the representatives who legislate/regulate it) for their own benefit. It was also mostly a jab at those who decry government handouts in other areas such as welfare but demand it in other contexts such as female yeshiva teachers. Also, my argument here is constitutional and related to religious exemptions exclusively. My battle isn't with the tax code as a whole or other deductions.

In general though I think there are far too many deductions and that the tax code would be far simpler and the overall tax rate lower if we just eliminated them.

Al,

It's hard to respond since your worry seems more paranoid than based in fact. I assume you're getting at the original barter concept - namely, bartering for a service or good is considered income. So, if we don't have parsonage (just to be clear, one of the several religious tax benefits I'm arguing against), then we need to assess the value of the housing allowance given to the "minister of the gospel" so we can calculate what his true income is.

First of all, this type of assessment already occurs. There are numerous tax court cases related to "fair rental value" and other such housing allowance issues where a "minster of the gospel" claims a HUGE allowance and the IRS performs an audit to figure out what the real value is. If the IRS abuses its power (and I have seen no indication that it does) the recourse for such abuses (should they occur) is in the courts. Same with assessing value for property tax purposes.

Your argument assumes an abuse of power. Yet, you bring no real proof that such an abuse would occur. Why should anyone pay property taxes, for example, if I'm a rabble-rouser or a member of a politically unpopular group the local assessor will assess my house at $10M, my taxes will go through the roof, and I'll be forced to leave town. Yet, we all pay property taxes despite that (paranoid) concern and there are remedies should such an abuse occur.

I don't find the argument convincing. Look at the coverage NYC got when it tried to claim historical landmark protection near ground zero to prevent the mosque from being built. There are protections against this kind of abuse.

Dave said...

Look at the attempts (across the country) where Muslim building plans are being fought in blatantly unconstitutional ways, and yet are still causing extensive delays.

Now assume slightly more clever opponents, and you can easily manipulate a tax code or zoning code in ways that will discriminate against unpopular religions but still would have a shot at getting by the courts.

JS said...

Dave,

Yes, there are horrible abuses taking place by xenophobic, bigoted, and racist people. These issues will hopefully be resolved quickly in favor of the wronged party. However, I don't think it's a reason to continue an unconstitutional tax exemption for all religious institutions. Better to provide additional protections for those subject to abuses than that.

Miami Al said...

JS,

Because those of us that aren't big city lawyers know that you can't actually fight city hall, and put protections in. You call it paranoia, out here in the boonies we call it liberty.

Sure, in a metro area in the 10s of millions, when you persecute the Muslim group that was acting within their rights but in bad taste, wealthy muslims in the area can fund their religious freedom fight.

When you aren't on the seaboard, if someone turns the city/state's lawyers on you or harasses you, there is no defense. The small religious group that can't afford the CPA certainly can't afford to fight an unfair assessment.

In the "real world," these legal issues are quickly resolved in favor of the party that either:

A) has tax payers fund their side of the legal tab
B) has the ability to run up the legal tab of the losing side

They are never resolved on their merits.

JS said...

I guess I just don't take as cynical a view as you do. I suppose you would respond that I've got rose-colored glasses on or am overly naive. There are national organizations that protect people against these kinds of abuses. You don't have to be a wealthy corporation that pays thousands an hour to Big Law firms in order to get justice. If you read through most cases relating to these types of abuses, they happen to small groups or individuals that cannot afford legal counsel, let alone expensive lawyers. Believe it or not, in addition to organizations like the ACLU there are LOTS of lawyers and big firms out there looking to make a name for themselves and are willing to take on cases like this pro bono. It's really no different than in the criminal law context when people run to defend people like Casey Anthony. It's even more prevalent in areas like this where there are important legal principles involved - there are many organizations and lawyers out there that have a strong interest in having the law changed or in fighting certain abuses. They are looking for test cases where an individual has standing so they can take their case up the chain of courts to the Supreme Court. So, I'm not overly concerned about issues like this being neglected. Yes, the abuse is terrible, but these people have more recourse than you think. Again, look through cases like this, the plaintiffs were usually represented by the ACLU or other big lawyers or firms.

Again though, I don't think abuses are a reason to continue a bad policy. It's like saying we should ban the police from engaging in stop and frisk procedures because some officers (or even some police departments) conduct their stop and frisks based on racial and/or national original instead of the constitutional standard of reasonable suspicion.

Mr. Cohen said...

"The Jewish legal tradition lacks almost any ecclesiastical function that can be performed by ordained rabbis only and recognizes that lay leadership can rise to the level of clergy in functionality, form, title and duties…."

But Kohanim have duties which cannot be performed by Israelites or women.

Izzy said...

Regarding whether the position that R Broyde is advocating is abusive, the IRS has said that they will not issue advance rulings on who qualifies for the parsonage exemption. Thus, the only way to test R Broyde's position, which having read his article, the rebuttal, and relevant caselaw is at least arguable, is to take that position, let the IRS challenge it, and litigate it.

Mark said...

ProfK - Fact: not all those who are "rabbis" teaching in yeshivas are entitled to that name--they don't have smicha, the "ordination" that the IRS requires.

You'll have to trust me, but any Cheder Rebbe that requires ordination for a tax benefit has it. There are a number of places (quite a few actually) that will give ordination rather easily (with a fee, of course).

Frankly, at least in my experience, shuls are charitable institutions in the full definition of the word.

It depends where. In most places OOT this is true. But in places like Boro Park, every 4'th or 5'th house contains a "shul" (as part of someones home). And parts of Flatbush are similar or getting that way.

Mark said...

IMO, ALL tax exemptions and deductions should be eliminated. There is no reason whatsoever that person A earning $X should pay one cent different amount of taxes than person B earning $X.

AztecQueen2000 said...

Mark--You don't have a small business, do you? A small business owner can gross (based solely on bank deposits) $300,000 in a given year. Once he's paid his workers, purchased materials, and purchased necessary insurances for his company, that $300,000 is down to $50,000. Should he be taxed at the same rate as an employee who makes $300,000 and only has to spend it on his own personal and family expenses.

Mark said...

AztecQueen, I am well aware of how business works. I am also aware that I always forget to qualify my above statement to refer to individual wage earners.

I do not mean that gross income should be taxed without deductions for business expenses.

I do mean that there should be no personal deductions. Basically there should be no schedule A and no personal exemptions.

JS said...

Mark,

I think the AMT is an attempt to do just that! :)

JRKmommy said...

If these teachers are considered clergy, they may find themselves without any protection under employment laws.

See http://onionsoupmix.livejournal.com/2011/06/27/