Taxing the Church: Religion, Exemptions, Entanglement, and the Constitution

This book explores the taxation and exemption of churches and other religious institutions, both empirically and normatively. This exploration reveals that churches and other religious institutions are treated diversely by the federal and state tax systems. Sectarian institutions pay more tax than many believe. In important respects, the states differ among themselves in their respective approaches to the taxation of sectarian entities. Either taxing or exempting churches and other sectarian entities entangles church and state. The taxes to which churches are more frequently subject - federal Social Security and Medicare taxes, sales taxes, real estate conveyance taxes - fall on the less entangling end of the spectrum. The taxes from which religious institutions are exempt - general income taxes, value-based property taxes, unemployment taxes - are typically taxes with the greatest potential for church-state enforcement entanglement. It is unpersuasive to reflexively denounce the tax exemption of religious actors and institutions as a subsidy. Tax exemption can implement the secular, non-subsidizing goal of minimizing church-state enforcement entanglement and thus be regarded as part of a normative tax base. Taxing the church or exempting the church involves often difficult trade-offs among competing and legitimate values. On balance, our federal system of decentralized legislation reasonably make these legal and tax policy trade-offs, though there is room for improvement in particular settings such as the protection of internal church communications and the expansion of the churches' sales tax liabilities.

Acknowledgments Introduction Chapter One: The Federal Constitutional Law on Taxation and Religion A) Murdock and Follett B) Walz C) Texas Monthly D) Jimmy Swaggart Ministries E) Nyquist and Mueller F) Lee G) Conclusion Chapter Two: State Constitutions on Religion and Taxation A) State constitutional exemptions from property taxation B) Interpreting "church" for property tax exemption purposes C) The property tax status of parsonages D) Other state constitutional provisions E) Conclusion Chapter Three: The Internal Revenue Code and Religious Institutions A) The Federal Income Tax B) The Federal Estate and Gift Taxes C) The FICA and Self-employment Taxes D) The Federal Unemployment Tax E) The Federal Health Mandates for Individuals and Employers F) The Code's procedural provisions relative to churches G) Church retirement plans H) Conclusion Chapter Four: State Tax Statutes and Religious Exemptions A) Property Tax Exemption Statutes B) Sales Taxes: Overview C) States subjecting churches to sales taxes as both buyers and sellers D) States exempting churches on sales taxes as both buyers and sellers E) States exempting churches as buyers but not as sellers F) States exempting churches as sellers but not as buyers G) Church sales tax exemption tied to IRS confirmation of income tax exemption H) Sales tax: Summary I) State Income Taxes J) Real Estate Transfer Taxes K) State Unemployment Taxes L) Conclusion Chapter Five: Untangling Entanglement A) The Inevitability of Tax-Related Entanglement: Borderline Entanglement and Enforcement Entanglement in The Courts B) Reducing Borderline Entanglement Through Broader Exemptions or No Exemptions C) Enforcement Entanglement, Property Taxes and General Income Taxes D) Sales, Payroll and Real Estate Conveyance Taxes: Less Prone to Enforcement Entanglement E) The Entangling Taxation of Unrelated Business Incomes F) The Entangling Trade-offs of Unemployment Compensation G) Entanglement, Subsidization, Tax Policy Criteria and the Normative Tax Base H) Why Entanglement Matters I) Conclusion Chapter Six: Parsonages, Parsonage Allowances and the Religious Exemptions From Social Security Taxes and the Health Care Mandate A) The Property Tax Status of Parsonages B) The Income Tax Treatment of Parsonages and Parsonage Allowances: Code Sections 107 and 119 C) Repealing Section 107: Swapping Borderline Entanglement for Enforcement Entanglement D) Swapping One Borderline Entanglement for Another: Section 107 v. Section 119 E) A Broader Possibility: Neither Section 107 nor Section 119 Applies to Religious Employers F) Section 107(2) as a Matter of Tax Policy G) The Constitutionality of the Religious Exemptions From The Social Security Taxes and the Individual Health Care Mandate H) A Final Word on Lemon I) Conclusion Chapter Seven: Other Issues For the Future: Churches' Lobbying, Campaigning, and Sales Taxation A) Section 501(c)(3)'s Bans on Substantial Lobbying and Political Campaigning B) The Controversy C) A Proposal to Protect Internal Church Communications D) Expanding the Sales Tax Obligations of Churches E) Conclusion Chapter Eight: Constitutional and Tax Policy Issues A) The Original Understanding of the Religion Clauses of the First Amendment: Prohibiting a National Church v. Nonpreferentialism v. Separationism B) Exempting Churches From Laws of General Applicability: The Relative Merits of Judicial and Legislative Decisionmaking C) The Criteria Governing Legislative Exemptions from Laws of General Applicability D) The Rhetoric of Separationism E) To Tax or Exempt the Profits of Nonprofits F) Revisiting the Unrelated Business Income Tax (UBIT) G) Conclusion Conclusion Index