Tax Ethics and Jews by Orrin Tilevitz
Volume 4 , Issue 1 (Sept, 1990 | Tishrei, 5751)
For a committed Jew, income tax evasion can appear temptingly simple. (Tax evasion, the failure to pay tax due, often under a subterfuge designed to make it appear that no tax is due, is a crime punishable by civil or criminal penalties. Tax avoidance, arranging one's affairs to reduce or eliminate any tax due, is legal. The line between tax evasion and tax avoidance can blur, but it exists nonetheless.) Tax laws exempt charities and religious organizations from most taxes and generally permit individuals to deduct the full value of gifts to these organizations from their income in computing their in?come tax. Since committed Jews contribute to these organizations regularly, and since the Internal Revenue Service audits only about one percent of all tax returns (and then often cursorily), opportunities for successful tax evasion abound.
? You own a 1982 Buick with a ?bluebook? value of $4,000. But it has 100,000 miles on it. you recently ran it into a traffic light, and the transmission and maybe the engine need to be replaced. When you tried to sell it, a junkyard offered you $200. Instead, you give it to a Jewish organization which advertises for cars in the Jewish press. The organization will give it to some poor family who probably will sell it for scrap. Although you may legally deduct only $200, the fair market value of the car, you deduct $4,000. file I.R.S. Form 8283 (the report of non-cash charitable contributions), and staple the bluebook listing to it for good measure. The organization, quite legally, files nothing with the I.R.S. You have done a mitzvah and made about $1,200 (taxes saved less what the junkyard would have paid) in the bargain. The chances of your being caught approach zero.
? Your synagogue raises money by selling tours to Israel. It charges the full retail price, keeps a 5% fee and pays the rest to the travel agent. You buy a trip for two for $5,000, paying by check. Since you have received full value for your payment, you have not made a deductible charitable gift, but no matter. (Strangely, under longstanding I.R.S. policy, a fee for synagogue membership and the purchase price for high holiday seats is tax-deductible. A recent Supreme Court case brings this policy into question, but that is another subject.) You illegally deduct $5,000 on your tax return and if the I.R.S. asks for proof, you will send a copy of the check. Again your chances of being caught approach zero unless, possibly, the I.R.S. audits the travel agent.
? Your son is about to attend an expensive yeshiva high school. Although legally his tuition is a nondeductible personal expense, you and your accountant have a scheme. You ?endow? a ?scholarship? at the yeshiva for a class of beneficiaries described so narrowly that it can include only your son, and deduct the endowment as a charitable contribution. The I.R.S. might catch you if they audit you, but that is, statistically, highly improbable.
Much of this tax hanky-panky cannot work without the passive acquiescence of the organizations themselves. A synagogue that sells wine for the holidays knows (or ought to know) that its members will attempt to deduct the cost, and one that admits people to a Chanuka party for a $7.00 ?donation? probably realizes that the ?donation? is a non-deductible entrance charge. Yeshivas which require parents to buy a journal ad presumably assume that the parents will (illegally) deduct the cost of the ad as a charitable contribution.
Sometimes, however, mere acquiescence turns into active connivance. You agree to give a needy synagogue $10,000, but only if the gift costs you nothing. You give the synagogue a $30,000 check and take back $20,000 in cash; you deduct $30,000 on your tax return, saving $10,000 in taxes. Although this schemeis usually undetectable, the consequences for everyone concerned may be unpleasant if the I.R.S. finds out. A branch of the American Cancer Society raised money for several years by holding ?casino night? dinner dances at Manhattan hotels. A couple of weeks before the dinner dance, donors would write checks to the Society, and the day before or the day of the dinner dance would pick up cash equal to 90% of the face amount of the check. When the authorities uncovered the scheme, they arrested the Society's fundraiser (who had not benefitted personally at all) in addition to the donors. (Ultimately, it appears that only one donor, one Patrick Rooney, went to jail).
A somewhat less transparent scheme takes advantage of the statutory exclusion from income for a ?parsonage? allowance paid to a ?minister of the gospel?, which, given the first amendment, includes a rabbi or cantor. Many years ago you were ordained as a rabbi - perhaps legitimately, perhaps while you were dodging the draft - but in any event you are now in the diamond business and have never practiced as a rabbi. In return for your $10,000 donation, your synagogue pays you $5,000 which it designates as a parsonage allowance and you apply it to your rent. You deduct $10,000 and do not include $5,000 in income. If asked, you and the synagogue will say that you are a part-time rabbi and cantor. True, you lead services once in a while, but so does everyone else, and for free.
Mail Order Ministries
A more outrageous and rather crude scheme is actually quite popular in Christian America. You first become an ordained minister through a mail-order ministry. (One wonders why there are no reported cases involving mail-order rabbinical schools.) Next, you incorporate a church, run your business out of it and have the church pay your expenses. The church pays no taxes on its income and you claim that at least a portion of the payments are non-taxable parsonage. To make things look legitimate, maybe you hold services once in a while. The I.R.S. pursues hundreds of taxpayers annually for schemes like this and successfully prosecutes some. Jews are apparently no strangers to the practice. A 1987 U.P.I. dispatch reported that a Glendale, California radio talk show host had been convicted on five counts of willfully failing to file tax returns. The miscreant, who had purchased a mail-order ministry from the Life Sciences Church, had incorporated the ?Mount Sinai Synagogue? of which he claimed to be the rabbi and pastor, taken a vow of poverty, and instructed his employer to pay his salary to the synagogue. But inevitably, the more sophisticated the scheme, the less likely the I.R.S. will ever detect it.
So tax evasion based on manipulation of the rules for religious and charitable organizations is simple, generally pretty safe, lucrative, and may even benefit a mitzvah cause. But is it right?
All major halakhic sources agree that if a tax is fixed by the government, a Jew must pay it and may not evade it. even if the tax on Jews is higher than on others and even if the tax is somehow ?unfair.? This is true whether the government is Jewish or gentile. The sources give at least three reasons.
First isthe principle of dina demalchuta dina - the secular law of the state is the law (Nidarim 28a), binding on all, including Jews. When Jews live in a country, they implicitly agree to be bound by its laws and contribute to its maintenance. If they do not wish to pay, they can live elsewhere. Too, Jews benefit from an ordered society and the protection it affords, which can exist only if there are laws. Tax laws are no different from other laws: if they are violated, society collapses.
Second, the sources add that one who evades taxes steals from the government (the ?king?), violating the commandment of lo tigzol. If an individual sovereign is entitled to the tax, the money is his and the failure to pay it constitutes a direct theft. But in a larger sense, particularly in a democracy, one's failure to pay taxes shifts the tax burden to everyone else, so a tax evader effectively steals from everyone. In some cases, the victim can be an identifiable fellow Jew. Some time ago, a Lower East Side bookseller told me that he could not sell a certain set of books profitably because people were buying it from a major Jewish charity and deducting the purchase price (illegally) as a charitable gift. The organization advertised a price of some $400, but after the deduction the set effectively cost the ?contributor? only $160. The set cost the bookseller $300 wholesale. He could not compete.
But perhaps the most important reason why Jews should pay their taxes is to avoid chilul hashem. The Rabbis forbade even conduct which would otherwise be permissible if it would bring the Jewish community, the Jewish religion, its leaders and institutions into disrepute. Chant hashem is especially onerous when a wrongdoer parades his Jewishness as a defense, leading gentiles and nonreligious Jews to believe that all Jews, or all religious Jews, behave in a similar corrupt fashion. Consider these tawdry cases:
? A taxpayer, identified in the court's opinion [56 T.C.M. (CCH) 833 (1988)1 as the ?son of a Jewish rabbi? and who himself had extensively studied Jewish religious subjects, owned a business selling antique Hebrew books and manuscripts. He also ran an unlicensed check cashing business for ?members of his religious community,? but did not bother to file tax returns. At trial he produced no books and records of his business and claimed, without proof. that the vast majority of his bank deposits were loan proceeds from a ?free loan society.? The court was unconvinced, and upheld both much of the I.R.S.'s tax assessment and a civil fraud penalty.
? Emanuel Bronner, whom the court [72 T.C. 368, (1979)] described as ?a rabbi and soap maker who combined his two passions by espousing his religious principles on the labels of his soap products,? received mail-order ordination from the Universal Life Church and ran his business of selling such items as Dr. Bronner's Peppermint Oil Pure Castile Soap out of his All-One-Faith and One God State Universal Life Church. The court held him to be taxable on the church's income because he personally controlled it. As an excuse to avoid penalties for failing to file tax returns, he stated that he was a ?blind religious leader, a rabbi, and chief presiding officer of a church,? and that once he became a rabbi he ?did insist on discontinuing paying taxes?because I did my work in the name of - in the face of the Lord.? The court was unconvinced.
? A taxpayer [30 T.C. 1026, (1958)], an immigrant from Rumania, served as a rabbi for various congregations in Toronto, Philadelphia and Miami, and later became an optometrist. Some years later the I.R.S. determined that he must have understated his income because he had a large unaccounted-for bank balance. The taxpayer mounted the classic ?cash hoard defense,? claiming that he had brought the cash from Rumania in a money belt. As a witness, he brought one Rabbi Hirsch H. who testified that the taxpayer had brought to him in Miami Beach a belt ?containing a sizeable amount of cash which he did not count but which he laid his hands upon for the purpose of pronouncing a blessing thereon.? Rabbi H. stated that he saw some $500 bills, but did not count the money because of the provisions of Talmudic law, according to which the effectiveness of clerical blessing would have been destroyed by counting or evaluating the temporal accumulation.? The court held that Rabbi H.'s testimony was ?credible,? but ultimately found that the taxpayer had underreported his income by some $85,000.
? The defendant, then the Dean of the Rabbinical College of Queens, was convicted [554 F2d. 36 (19977)of conspiracy to defraud the United States by laundering eight checks, illegally drawn by another person on the U.S. Treasury, through the yeshiva?s bank account and keeping ten percent of the face value of the checks for his services. On appeal, the defendant argued that he had no intent to defraud the United States because he had been told the checks were valid and the purpose of the laundering operation was to help some payees evade taxes and to help other payees conceal kickbacks on government contracts. In short, observed the court, ?both men agreed to defraud the United States, but neither agreed on the type of fraud.? Since there was no conspiracy. the conviction was reversed. On this technicality the Jewish community was spared the ignominy of a rosh yeshiva jailed as a common criminal.
Reading these decisions inevitably make one cringe, a feeling exacerbated by the realization that their infamy is preserved for posterity in case reports available in every law library. In fact, the Rabbinical College case cited above, decided in 1979, is discussed extensively in an article about conspiracy to defraud the I.R.S. published in 1990 in a tax law periodical read by most accountants and tax lawyers. How much greater a chilul hashem can there be?
Some other ethnic groups have leaders who scoff at tax laws, occasionally scoffing their way into jail. Not without cause, we look down on these groups and their leaders, though the world excuses their misbehavior. The world does not excuse our misbehavior, and the halakha require that we demand no less of ourselves.
Orrin Tilevitz is a tax lawyer in