Rosa Packard aimed to obtain recognition of the right to conscientious objection to paying for armaments and war preparation and war conduct through taxes.
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Peace Tax Witness
Talk to 9th International Conference of War Tax Resisters and Peace Tax Campaigns
Rosa Covington Packard
As part of a panel presentation on Personal
Ten years ago, I joined other Quakers who were planning the work of Friends Peace Teams. Our meeting was facilitated by two British Quakers: John and Diana Lampen.
John Lampen spoke to us of the ministry of John Woolman an eighteenth century Quaker who refused military taxes for war. Woolman said his ministry was like walking into a muddy ground with mist all around and he was able to see only one stepping stone forward at a time. If he took that step, as inwardly led by God, only then would the next step become clear. Like many others, my experience with tax witness, has been like that—a step at a time.
At the same consultation, Diana Lampen to us spoke of peace work as being like a spider web: each strand having a different point of origin and running its own path, but each converging on a common goal and lending strength to the web. My experience with tax witness as a member of a Quaker Meeting and the wider community gathered here at this international conference has been like that.—a complex web that is becoming stronger over time.
So I'll tell some stories of how my own strand in the web has been strengthened by other strands and what it has felt like to take some steps out into the mud and mist.
In April of l981 I received a telephone call from a friend active in her church. She said she could no longer pay her income taxes for war. She had discussed this with her minister and decided, with his approval, to give the military portion of her taxes to the Quakers because of their work for peace. It was a week before taxes were due. I had I felt nauseated when I tried to work on my tax form. During that phone call, the meaning of that nausea was clear to me. It came from the disease of cooperating with war. I told my friend that I would join her in this witness. This gut reaction—was what counselors call a crystallization of conscience.
That was one step. I took the next step the next day.
We wanted to establish an Escrow Account under the care of local Quakers. Our tax money could be held in trust for the government until the government recognized the right of religious freedom by providing for our tax money to go for peaceful purposes. I was afraid of rejection if I did this but went down to my local bank anyway about noon. As I arrived vice-president who had been kind about opening accounts for my children came out the door. He was on his way to lunch. I greeted him and told him I was a conscientious objector to paying for war and wanted to put my taxes in escrow rather than sending them to the IRS. To my surprise, his face lit up and he said "That's terrific—I'm the man here that deals with the IRS—come on in and I'll arrange the escrow account for you." He turned right around and escorted me back into the bank. Since an angel of the Lord had appeared to me as a banker and said "Fear Not! "— of course, I didn't feel much fear after that.
Another stepping stone:
Another stepping stone: I have an unconscious habit of humming under my breath—I usually don't know what I am humming until someone is irritated enough by it to tell me to quit. But a few years ago, the day came when I told my lawyer I would go ahead with a legal appeal to test on the courts whether, as a matter of religious freedom, the US Government could penalize religious conscience., After I hung up the telephone, I noticed myself humming. I asked myself what my soul was singing. It was the Ode to Joy, from Beethoven's Ninth Symphony.
But tax witness is more than an individual spiritual journey—it is also a corporate journey.—and here Diana Lampen's image of a spider web helps me.
In the early days of the escrow account we contributors met regularly to support each other. We went together to the IRS when we faced collection summonses and audits. We provided counsel, verification and formal protests on behalf of depositors. We visited with different attorneys to seek legal clarity. We provided background information to the press and granted press interviews. We wrote to Congress and spoke to employers when portions of wages were taken by the IRS. We visited with bank officials and bank attorneys when portions of individual accounts were taken. We were present on the telephone with a Friend while his truck was seized by the IRS, and with him again in worship when the truck was released from a local garage two months later. Financial aid was offered. Minutes written. Accounts kept. Each of us had different financial and social circumstances and each had a different understanding of their faith and practice in approaching tax witness. So the IRS responded to each of us differently. What would have overwhelmed me didn't overwhelm another. What confused another didn't confuse me. We each were presented with opportunities we could handle. We learned and grew from watching and helping each other.
In later years when the adventure of the test case was in progress we learned how individual witness became corporate witness and corporate spiritual discipline. The religious freedom issues at stake in Packard vs. the United States were eloquently supported by two separate legal amicus sent to the courts by New York Yearly Meeting of the Religious Society of Friends. The responsibility for research, discernment and then approval of the briefs were given to a committee approved by New York Yearly Meeting. Serving on this committee was the clerk of New York Yearly Meeting, the clerk of NYYM Witness Coordinating Committee, and the clerk of Purchase Quarter which oversees the Quaker escrow account into which, along with other Quakers, I place my income taxes every year. The attorney was a member of my monthly meeting. These and other Friends attended the oral argument for my appeal to the Second Circuit in New York City in May 1999.
The judge in the lower court rejected by appeal in part because he said my witness was not compelled by my religious organization. Quakers were offended by this because he had misconstrued the very nature of Friends beliefs and practices. The committee worked with historians and theologians and attorneys to clarify the question for the judges. How is Quaker corporate witness possible when not all Quakers make the same choice about the payment of taxes in the mix?
This question is well answered by the NYYM amicus brief which you can read on the web (cpti.ws). Even though it didn't convince the appellate court, it has helped Friends in New York grapple with the issues of corporate tax witness and has been used in Quaker study groups. I'll read one paragraph from the brief:
"Unlike virtually all other Western religions, Quakers' concept of authority and doctrine flows upward from the individual to the group, rather than down from an ecclesiastic authority to the laity. Quakers ask if the act flows from the Inner Light and, if so, acknowledge it as dictated by the individual's religious conscience.For Friends, the ultimate authority governing the individual is the Spirit of God, or the Spirit of Truth, as she or he feels it and tests it and seeks to be obedient to it.
The earliest Quakers recognized what each generation of Quakers relearns: responsibility for discerning the truth and learning how to live by it rests with each individual. Each is responsible for discerning how she or he is called to act, but each person is also part of a fellowship of faith, responsible to and supportive of one another. There are institutions and forms which may help each find how she or he is led to live and act, including the authorities of Scripture, Quaker tradition (as expressed through Books of Discipline and Quaker history) the examples of people of good will and integrity in all traditions, and corporate discernment in official gatherings of Friends, such as Monthly and Yearly Meeting."
The question has also been well answered by actions of New York Yearly Meeting Friends:
In addition to recording the penalties and interest seized by the IRS as sufferings for conscience sake my meeting appointed a Friend to counsel those troubled by participation in war.
The Regional Meeting oversees the escrow account.
The clerk of the NYYM Peace Concerns committee arranged Meeting for Worship during the time the lawyers argued before the 2nd Circuit Court of Appeals.
NYYM's Fund for Suffering helped with legal expenses.
The clerk of the Witness Coordinating Committee arranged regular reports on the issue to the Yearly Meeting.
When the US Supreme court announced it would not hear the case on Tax Day in 2000, the clerk of Witness Coordinating Committee promptly circulated a carefully prepared press release sent to major national media and to every Monthly Meeting in New York Yearly Meeting.
During the Vietnam War, New York Yearly Meeting honored the conscience of staff who could not pay for war by refusing to act as a tax collector for the government and by refusing to pay the telephone tax.
And New York Yearly Meeting has repeatedly supported the legislation now called the Religious Freedom Peace Tax Fund Bill.
New York Yearly Meeting appoints a representative to the board of the National Campaign for a Peace Tax Fund.
Monthly Quarterly and Yearly meetings have approved statements of support. The advices and queries in our New York Yearly Meeting books of discipline confirms that tax witness is an expression of our Peace Testimony.
Now: What's next:
On Monday as I was preparing to come to Germany, I read a report of a meeting that I had not been able to attend. Some Quakers in New York Yearly Meeting which spent a weekend in worship and sharing concerned by the threat of war that the US administration is now testing us with. A group on war tax witness explored an idea called the coordinated approach to resisting war taxes. This envisions a few persons directly resisting paying war taxes. Then it envisions about ten persons supporting the needs of that witness. All are helped by many others who support the witness through networks and media. Thinking of the US court system, they dreamed such witnesses, could be organized in each of the 11 Federal Circuit Districts—Now there is a spider web for you—and of course they are busy working on a web page.
Other webs of course are our national organizations and the work of Conscience and Peace Tax International. CPTI has recently helped to found a working group at the United Nations in New York of Non governmental Representatives interested in conscientious objection. Participation in this work has given me new energy and a new focus. Of course this conference itself is another model of Diana Lampen's image of a web.
As I pursued this adventure, I read the New Testament with new understanding.
I noticed that Jesus was born in Bethlehem because Caesar Augustus, the Roman Emperor required of Jews a census for tax purposes to pay for Roman military occupation.
I noticed that Jesus invited Matthew, a publican and tax collector working for the Roman occupation to be a disciple and insisted that he get along with another discipline invited by Jesus to follow him, Simon who was a counterrevolutionary against the Roman occupation.
I learned that the denarius the coin that prompted Jesus' response: "Render Unto Caesar that which is Caesar and unto God that which is God's" was minted for tax purposes only and had Caesar's image graven upon it with inscriptions and symbols attributing divinity to Caesar. The two Jewish questioners understood that the first and second commandments were violated by possession of the coin. Jesus' response was therefore not a recommendation to pay military taxes—it was a side step that went to the central issue of idolatry.
Luke reports in 12:1-2 that when Jesus was led off to Pilate he was accused by his own faith community: "We have found this man subverting our nation. He opposes the payment of taxes to Caesar and claims to be Christ, a King."
Later many Christians, out of their experience of the crucifixion and resurrection refused both military service and taxes for Caesar's wars and died as martyrs.
The enemy is not the soldier or politician. It is not the IRS or a threatening nation. It is the spirit of war itself within us and without us. We all are enmeshed in it. No one is pure. We are all in need of transformation. We can allow ourselves, like John Woolman, to make decisions out of this danger as if we were walking on stepping stones one at a time into the unknown. And, as Jesus taught, even our persecutions can be transformed into blessings.
Annotated Bibliography on War Tax Witness
Rosa Covington Packard
Most of these writings became available in the last twelve years after the publication of The Handbook on Military Taxes and Conscience, listed below, which has a fine bibliography on war tax witness to which this is a personal supplement.
Linda Coffin, editor. Handbook on Military Taxes and Conscience, Philadelphia: Friends Committee on War Tax Concerns (sponsored by Friends World Committee on Consultation), 1988.
Currently available without charge from the War Tax Concerns Committee of New York Yearly Meeting. A comprehensive look at Quaker war tax witness with chapters by various authors: on biblical context, Quaker history, testimony of Churches, international responses, legal options and consequences, spiritual leadings, the search for legislative accomodation, and personal and corporate experiences of tax witness. The book was published by a committee under the care of Friends World Committee on Consultation during the time that Gordon Browne was clerk. The editor, Linda Coffin had been for a number of years a staff member of the Friends Committee on National Legislation. Wallace Collett, formerly chairperson of the American Friends Service Committee, was clerk of the Friends Committee on War Tax Concerns.
Chel Avery. Peace and Taxes...God and Country: A Guide for Seeking Clearness on War Tax Concerns , Philadelphia: Philadelphia Yearly Meeting, 1990.
A member of Philadelphia Yearly Meeting's War Tax Concerns Committee provides concrete advice for Meetings and individuals on the spiritual discipline of clearness committees that allows the individual to test their conscience and the meeting to discern and support tax witness as particular expression of the Quaker Peace Testimony.
Martha Paxson Grundy. Tall Poppies: Supporting Gifts of Ministry and Eldering in the Monthly Meeting. Wallingford, Pa: Pendle Hill Pamphlet 347, 2000.
A helpful and concise exploration of the traditions and dilemmas facing Friends called to vocal and pastoral ministry and to the ministry of furthering concerns. The relationship of the Monthly Meeting to the individual member led to ministry is the focus of the pamphlet. Recognizing, recording, financing and receiving gifts are discussed. Approaches developed by Central Philadelphia Monthly Meeting and New York Yearly Meeting were resources.
Elaine J. Crauderueff. War Taxes : Experiences of Philadelphia Yearly Meeting Quakers through the American Revolution, Wallingford, Pa.: Pendle Hill Pamphlet 286, 1989.
This is a 38 page summary of her Masters thesis at Villanova in 1986. Elaine Crauderueff presents a diversity of Friends perspectives on war taxes that mirror issues that continue to test Friends in the twenty-first century. The concluding queries are useful for Monthly Meeting study.
Howard W. Brinton. The Peace Testimony of the Society of Friends, Philadelphia: American Friends Service Committee, 1966.
This is still a timely, concise, articulate treatment of the spiritual basis and the history of Friends Peace Testimony and its necessary unity with other Friends Testimonies. The passages specifically on war taxes( pages 8 and 9) quote journals of John Woolman, Joshua Evans and Job Scott' that address their refusal to pay for the Friends and Indian War and the Revolutionary war. Brinton notes the refusal of many Friends to buy Liberty Bonds in the first World War. He describes the frequent discipline among Friends of self taxing to support efforts to heal from war and to avoid war when not able to refuse taxes in the mix. Also helpful is a reprint of Brinton's Pendle Hill pamphlet #27: Sources of the Quaker Peace Testimony which is drawn from an address he gave in 1940.
Jim Corbett. Goatwalking: A Guide to Wildland Land. A Quest for the Peaceable Kingdom, New York: Viking Penguin, l991.
Civil initiative is the name that Corbett, the Quaker founder of the Sanctuary Movement, gives to his understanding of nonviolent response. Civil initiative has deeper spiritual insight than Thoreau's civil disobedience and clearer cultural relevance to the United States than Gandhi's satyagraha. Corbett asserts the duty of the individual to obey the law when the goverment defiles the law by calling illegal acts legal. He places the fundamental root of the law in spiritual experience. As a goat tender in the Arizona desert he experienced the deep meaning of the Jewish experience of Exodus and this prepared him to assist refugees from Central American in their flight to Canada. His Quaker commitment to helping those in need on any side of the conflict and to maintaining the rule of law without consenting to illegal law separated him from other activists protesting the Central American civil wars. Arrested and tried with other Sanctuary leaders, the US government was unable to shake Corbett's position. Corbett enlightens, enlivens and deepens the Quaker Peace Testimony.
Walter Wink. The Powers That Be: Theology for a New Millennium, New York: Doubleday, 1998.
An excellent explanation of the Biblical understanding of nonviolence, which the institutional church has often turned upside down. This short, readable book summarizes Wink's three volume scholarly work: Naming the Powers,, Unmasking the Powers, and Engaging the Powers. Wink teaches at Auburn Theological Seminary and has been active in the civil rights movement, against apartheid and other social justice concerns. He coedits a feature, "Nonviolence in the Arena" for the Fellowship of Reconciliation's magazine, Fellowship.. Wink explains the cultural setting of the active, creative and responsible responses to oppression that Jesus lived and taught. He understands all of us, institutions and individuals, are good, are fallen and that we must be transformed. He advises that neglecting any of these three aspects of our spiritual life increases the violence of pricipalities and powers..
Marian Franz. Questions That Refuse To Go Away, Herald Press, 1991.
Franz holds a Masters degree from Mennonite Biblical Seminary in Chicago. She has been the executive director of the National Campaign for a Peace Tax Fund for many years. She ministers to the members of Congress that she visits on behalf of conscientious objectiors to war taxes. Her regular articles in the newsletter of the Campaign are valuable resources. Recently she has completed a paper describing the US court cases that have made legislative accomodation of conscientious objection to paying for war so necessary. This short book is suitable for Christian congregational study. She asks who is Lord? God or Caesar? Christ or Hitler? Military strength or trust in power of the Divine Creator? She discusses the three positions of the institutional Christian church on war: the holy war, the just war and Christian pacifism. The Christian pacifist is not passive, assumes risks and costly responsibility. Chapter 11, "What Belongs to Caesar" gives the context of the oft quoted response of Jesus "Render unto Caesar that which is Caesar and unto God that which is God's." The question Jesus answered was designed to trap him into a treasonable response. The coin in the story, the denarius, was minted for tax purposes only and had the image of Caesar graven upon it with inscriptions and symbols attributing divinity to Caesar. Jews understood that the first and second commandments were violated by possession of the coin. Luke (23:1-2) reports that Jesus was led off to Pilate and accused "We have found this man subverting our nation. He opposes the payment of taxes to Caesar and claims to be Christ, a king. " The crucifixion followed. Later, when many Christians refused both military service and taxes for Caesar's wars, they died as martyrs.
Lt. Col. Dave Grossman. On Killing: The Psychological Cost of Learning to Kill in War and Society. Little, Brown & Co, 1995.
Grossman is a military psychologist who understands that the natural condition of human is not violence but conscientious objection to violence. A military psychologist who has taught at West Point, he asserts that the purpose of military training is to train people out of the natural condition of conscientious objection so that they will kill. He observes that we live in a culture that has adopted the methods of military training as a cultural pattern. While believing in the necessity of having a military, he warns against the violent social consequences of a militarized society, especially affecting children. He notices that our culture educates us in violence through the military training methods of enemy demonization, desensitization to suffering, distancing from personal responsibility for harming others, brutalization and automatic target accuracy gained through video and computer games.
Maria Montessori. Education and Peace, Chicago: Henry Regnery; first published in l949. Translated by A.M. Joosten and Mario M. Montessori .
Individual conscience emerges in early childhood and is the key to ending war. The child's inner guide or conscience is often oppressed by traditional education that supports a war mentality. Montessori speaks of the widespread abuse of children and the psychological need of adults to deny that abuse. Her insights, can help us address the roots of violence in the human condition, the world over. Montessori believes, the oppression that underlies all the other oppressions and injustices is the oppression of all children. Other books by Montessori and the organization of her classrooms and curriculum give help to encouraging the inwardly guided development of the child within a caring community. Her approach to education is experimented with in many cultures. She worked not only in the West but for many years in India, including cooperating with Gandhi in developing a school for untouchables to prove that they were indeed as capable as children from other castes.
Alice Miller. For Your Own Good; Hidden Cruelty in Child-Rearing and the Roots of Violence, New York: Farrar Straus, l983.
Translated by Hildegard and Hunter Hannum. Miller, a Swiss teaching psychoanalyst and writer, delineates the effects of traditional childrearing methods on “almost all of us; decent people who were once beaten.” She gives three case studies of extreme examples of “poisonous pedagogy.” the childhoods of a heroin addict, Christiane F.; a genocidal dictator, Adolf Hitler; and a murderer of young boys, Jurgen Bartsch. Her quest was to discover how her people could have allowed Hitler to be in power. She discovered the path of art to be healing.
Michael True. An Energy Field More Intense than War: The Nonviolent Tradition and American Literature, Syracuse, NY: Syracuse University Press, 1995.
Michael True, a Quaker and a leading peace studies scholar, emphasizes the power of the written word to influence social change. In a chronological approach from colonial times to the present day, he affirms pacifist experience and stimulates the desire to learn more about this underreported aspect of American history. The book is well threaded with Quaker references and with mention of war tax witness. He quotes William Stafford, conscientious objector and poet: "You didn't want to give it but they took your money for those lethal tanks and the bombs....Which bombs did you buy for the death rain that fell? Which years taxes put that fire to the town where the screaming began." (Entering History). Michael True celebrates poets and other writers and artists.
Peter Brock. The Quaker Peace Testimony : 1660 to 1914 ,York, England:, Sessions Book Trust, 1990.
Brock describes the experience of English, Canadian, American, Irish, French, Prussian, Norwegian, and Australian and New Zealand Friends A chapter is devoted to war tax witness. The Canadian author is Professor Emeritus of History at the University of Toronto and was a conscientious objector in the Second World War. He is a leading international scholar of conscientious objection. Other books by Brock look at the experience of conscientious objection in other times and faith positions. The most recent is Peter Brock and Nigel Young. Pacifism in the Twentieth Century, University of Toronto Press (printer) Syracuse University Press (distributor), February, 1999.
Staughton Lynd and Alice Lynd, editors. Nonviolence in America : A Documentary History, Maryknoll, NY: Orbis Books, 1998.
Source materials that address war tax witness are found in John Woolman page 6-8, Henry David Thoreau 21-38, Maurice McCrackin 175-77, and Adin Ballou: p17-21,
Dorothy Sterling . Abby Kelley and The Politics of Antislavery, New York: WW Norton, 1991.
Abby Kelley, a pioneer organizer and lecturer in the antebellum arena of womens rights, the abolition of slavery, and nonviolence. Abbey Kelley was a Quaker comeouter who with her husband Stephen Foster refused to pay taxes until women were allowed the right to vote. Dorothy Sterling's biography restores Abby Kelley to her rightful place of pioneer ground breaker in the nonviolent tradition of social change, long hidden by the male and military bias of historians. This nineteenth century movement was filled with articulation of religious belief and philosophical thought, courageous and original leadership, strategies of change and patterns of witness that still influence the present day. The information about the influence of Quakers and the controversies among Quakers is instructive.
Herbert Mayer. All on Fire: William Lloyd Garrison and the Abolition of Slavery, New York: St. Martins Press, 1998.
A more male centered version of the nineteenth century nonviolence movement, making clear the connection between the development of religiously and morally based nonviolent social change methods to end slavery and achieve womens rights. This intriguing biography introduces us to the many people who in this period developed methods and wrote literature that later influenced Tolstoy and Gandhi. It helps correct the stereotypes of Garrison formed by later historians who did not understand the religious basis of Garrison's thought and action and gives a good introduction to the perennial diverse positions that tend to reoccur in nonviolent witness. The title is drawn from Garrison's response to Samuel May that he was all on fire because he had a mountain of ice to melt. Again, the information about the influence of Quakers and the controversies among Quakers are instructive.
Chuck Fager, editor. Friends in Civilian Public Service: Quaker Conscientious Objectors in World War II Look Back and Look Ahead, Wallingford Pa : Pendle Hill, 1996.
In the context of a conference, that began Pendle Hill's contribution to documenting the Quaker Peace Testimony in recent history, Rosa Packard comments (pp. 282 285) on tax witness as a way for conscientious objectors of both sexes and all ages to engage the discipline in the present time.
Rachel Goosen. Women and the Good War; Conscientious Objection and Gender on the American Home Front 1941-1947, University of North Carolina Press, 1997.
A groundbreaking book on the role of women in conscientious objection by a Mennonite scholar who understood herself as a conscientious objector during the early nineteen eighties when the US Congress was considering requiring women to register for the draft. Women were conscientious objectors in their own right even in World War II.
Rachel Avery Harrison, Gender and Conscientious Objection , unpublished manuscript.
A Quaker intern for the years 1998 -2000 at the National Campaign for a Peace Tax Fund, explores her understanding of the role of the military in distancing men and women from each other and of the opportunity in the movement of conscientious objection to taxes for them to rediscover their unity.
Congressional Record. Hearing before the Subcommittee on Select Revenue Measures of the Committee on Ways and Means, House of Representatives, One Hundred Second Congress, second session on H.R. 1870 United States Peace Tax Fund Act, May 21 1992, Washington, DC: US Government Printing Office, 1992.
The Religious Freedom Peace Tax Fund Bill has been revised since this version.
John Lewis with Michael D'Orso. Walking With the Wind, New York: Simon and Schuster, 1998.
An inspiring autobiography by the lead cosponsor in the US House of Representatives of the Religious Freedom Peace Tax Fund Bill. The author, now Representative from Georgia, was president of the Student Nonviolent Coordinating Committee (SNCC) during the civil rights movement and was a conscientious objector to the Vietnam War. See. HR 1474 introduced into Congress April 15, 1999. This bill introduced into Congress for over twenty five years has been revised several times. The current version and its status in Congress is available on line at thomas.loc.gov
David Bassett Richmond, Indiana: Quaker Life,, April 1997
A personal account by the lead founder of the movement for a Peace Tax Fund Bill. David Bassett is a member of Ann Arbor Friends Meeting and active on the boards of the National Campaign for a Peace Tax Fund and Peace Tax Foundation. He is also a founding member of Conscience and Peace Tax International, an international NGO representing peace tax movements in sixteen countries with ECO-SOC status at the United Nations. David Bassett has attended their seven international biannual conferences and has helped to organized the eighth one to be held in Washington DC July 2000.
Coxe, Edward Snyder, Joe Volk, Richard N. Reichley, Silas Weeks, Ben Tousely,
Bruce Hawkins, Thoreau Raymond, Rosa Packard, Mary Moulton Letters to the
Editor concerning the Peace Tax Movement, Philadelphia: Friends
Journal December 1999 and March and April 2000
Irene Allen. Quaker Testimony: An Elizabeth Elliot Mystery , New York: St. Martins, 1996.
The detective is clerk of Cambridge Friends Meeting. The victim is a war tax resister, and member of the meeting. Each chapter is preceeded by a Quaker quotation relating to war tax witness. The characters and the issues that the Quaker author weaves into her mystery are a change from the usual mystery story pattern.
Ben Richmond: "J.E. McNeil A Skeptical Advocate for Peace," Richmond, Indiana: Quaker Life, December 1999 .
Ben Richmond, editor of Quaker Life, a publication of Friends United Meeting, is on the board of the National Campaign for a Peace Tax Fund and is a war tax refuser himself. Friends United Meeting has for a number of years maintained an escrow account for war tax witness. J.E. McNeil is a Quaker tax lawyer who is currently director of the Center on Conscience and War (NISBCO) and was the attorney for Gordon and Edith Browne's legal appeal for recognition of rights for conscientious objectors to paying for war. See also J.E. MacNeil and Barnaby Zall, attorneys: Petition for Certiorari: Browne vs the United States.
John T. Noonan Jr. The Lustre of Our Country: The American Experience of Religious Freedom, University of California Press, 1999.
Noonan is a Judge on the US Court of Appeals for the Ninth Circuit. A Jesuit educated Catholic raised in Boston, Noonan offers a series of essays, each written in different literary styles, on the US Courts' interpretation of the first amendment. He sees religious freedom as a central contribution of American culture to the world, despite problematic interpretation by the courts. In the chapter "Durkheim's Dilemna" he examines the tension between religion as worship of the transcendent and religion as society's creation. He thinks both are true. He points out that the courts have held three aspects of our society sacred as an expression of our "national religion," These are taxation, military power and the judiciary. The courts hold these superior to the claims of conscience. Exceptions are seen by the courts not as a matter of right but as a matter of legislative grace. Noonan considers with hoped for changes are possible only by prophetic crusades of conscience such as the civil rights movement.
Peter Goldberger: "Conscience, Citizenship, and the Road Ahead" Friends and The Vietnam War: Papers and Presentations from a Gathering for Recollection, Reappraisal and Looking Ahead Chuck Fager editor, Wallingford Pa: Pendle Hill, 1998.
Goldberger is a Philadelphia lawyer who has represented many Quaker conscientious objectors, including Philadelphia Yearly Meeting. He is General Counsel for the Central Committee for Conscientious Objection. He reflects on the legal context of conscientious objection in the United States. See also his briefs and audio tapes of oral arguments before the appellate courts in the cases of Priscilla Adams, and Rosa Packard.
Marjorie Kornhauser. "For God and Country: Taxing Conscience," Madison. Wisconsin: Wisconsin Law Review Volume 1999 Number 5, 1999.
Kornhauser published her 70 page treatist on the three Quaker test cases (Priscilla Adams vs the United States, Gordon and Edith Browne vs the United States and Rosa Packard vs the United States) just before all three cases were denied certiorari by the United States Supreme Court in early 2000. Kornhauser reviews the legislative and judical history of war tax witness in the United States and favors the passage of the Religious Freedom Peace Tax Fund bill. The author is law professor at Tulane Law School.
William Durland. The Illegality of Nuclear War: Colorado Springs: The National Center on Law and Pacifism , 1983 and People Pay For Peace : A Military Tax Refusal Guide for Radical Religious Pacifists and People of Conscience. Colorado Springs: Center Peace Publishers, 1984.
William Durland is an attorney and theologian, who represented conscientious objectors to paying for war before the US Supreme Court. He has been on faculty at Pendle Hill. He articulates the legal and religious reasons for war tax refusal and witness that the courts have ignored.
Peter Irons. The Courage of Their Convictions: Sixteen Americans who fought their way to the Supreme Court, Penguin Books, 1990.
The author is an attorney who was jailed for draft refusal in the Vietnam era. One of the sixteen is Dan Seeger, whose case established a broader applicability of conscientious objector status.
See also Peter Irons. May It Please the Court The First Amendment , The New Press, 1997.
None of these cases deal with the free exercise clause of the first amendment but the book comes with tapes of free speech and separation of church and state issues being presented before the Supreme Court in oral argument. A good education in the law of the first amendment, its human component, its limitations and its glories. The author was imprisoned during the Vietnam War era for principled draft refusal.
Peter Goldberger and James Feldman, attorneys: Petition for Certiorari: Packard vs the United States, Appendix contains text of Religious Freedom Restoration Act and of the Decision to Dismiss in the Federal Court. Available on line at RosaPackard.org
Fred Dettmer attorney for New York Yearly Meeting: Amicus Brief For Second Circuit Court of Appeals Packard vs the United States: and Amicus Brief for the Supreme Court of the United States Packard vs the United States Available on line at RosaPackard.org
View our Links page for more online resources.
1. Under the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., is
the government's asserted inability to further its compelling interest by any
means less restrictive of the plaintiff's religious liberty an affirmative
defense to be pleaded under Fed.R.Civ.P. 8(c), or may a court grant a Rule
12(b)(6) motion to dismiss the complaint on the unproven basis that the
plaintiff's objection, by virtue of being religious in nature, cannot be
The caption of the case in this Court contains the names of all parties (petitioner Packard and the United States).
TABLE OF CONTENTS
A. Summary Order of the Second Circuit
(filed June 1, 1999)
The summary opinion of the court of
appeals (Kearse, Miner and McLaughlin, JJ.) is not officially published. It
is available at 83 A.F.T.R.2d 99-2874, 99-2 U.S.T.C. ¶ 50,630, and 1999 WestLaw
500797; a copy is attached as Appendix A. The opinion of the United States
District Court for the District of Connecticut (Goettel, J.) is published at
7 F.Supp.2d 143 (D.Conn. 1998); a copy is attached as Appendix B.
The judgment of the United States
Court of Appeals for the Second Circuit affirming the judgment of the United
States District Court was filed and entered on June 1, 1999. A timely
petition for rehearing was denied by Order dated November 19, 1999. Appx. C.
This petition is timely filed within 90 days thereafter. Rules 13.1, 13.3; 28
U.S.C. § 2101(c). The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
general. Government shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general applicability,
except as provided in subsection (b).
42 U.S.C. § 2000bb-1.
§ 2000bb-2. Definitions
42 U.S.C. § 2000bb-2.
§ 2000bb-3. Applicability
42 U.S.C. § 2000bb-2.
Rule 8 of the Federal Rules of Civil Procedure provides in pertinent part:
(a) Claims for
A pleading which sets forth a claim for relief ... shall contain ... (2) a
short and plain statement of the claim showing that the pleader is entitled
to relief ....
Rule 12 of the Federal Rules of Civil Procedure Provides in pertinent part:
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted .... * * *
Because of their length, the pertinent
provisions of the Internal Revenue Code and Treasury Regulations are
reprinted in the Appendix, along with relevant implementing portions of the
Internal Revenue Manual. Appx. D.
Petitioner Rosa Covington Packard is a
Quaker pacifist, whose religious beliefs prevent her from voluntarily paying
any tax, such as the federal income tax, which is used in substantial part to
fund war preparation and warmaking activities. She filed a complaint for a
refund of penalties and interest that had been added by the Internal Revenue
Service to a federal income tax delinquency, claiming that both the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and the
Internal Revenue Code itself exempted her from being required to pay
additional sums on account of late payment of income tax obligations which
resulted from obedience to the demands of her religious conscience, and that
the refusal of the IRS to waive or abate the penalties violated the Free
Exercise Clause, by discriminating against religiously-based showings of
"reasonable cause." The district court dismissed the complaint
under Fed.R.Civ.P. 12(b)(6). Appx. B. The Second Circuit affirmed. Appx. A.
afford a reasonable cause for her late payment of tax to the Internal Revenue Service, particularly because the plaintiff voluntarily deposited the full amount of taxes due, on or before the due date for payment, in an escrow fund which will turn the money over to the IRS should the government make an accommodation of the plaintiff's religious scruple.
CA2 App. 11a, 15a, referring to IRC §
6651(a).6 Further, she
alleged that her religiously-grounded conduct in relation to taxes
constitutes "an unusual circumstance which make[s] it against equity and
good conscience for the IRS to impose a penalty for her failure to pay
estimated tax," quoting IRC § 6654(e)(3)(A).
1. The decisions of the courts below
depart from this Court's precedent in allowing a civil complaint to be
dismissed under Rule 12(b)(6) despite well-pleaded allegations satisfying the
elements of a statutory claim, on a basis that the Act requires the
defendant-government, not the plaintiff-individual, to plead and prove. The
result is effectively to exempt the Internal Revenue Service from compliance
with the Religious Freedom Restoration Act in its decisions whether to waive
The statute goes beyond the constitutional language that forbids the 'prohibiting' of the free exercise of religion and uses the broader verb 'burden': a government may burden religion only on the terms set out .... [Moreover, t]here is an unusual statutory incorporation of two decisions of the Supreme Court, to which Congress refers as guides to the purposes of the statute. ... [In addition, i]f there is a substantial burdening of a person's exercise of religion, the government must meet two tests. [1st] The government must 'demonstrate' that the application of the burden to this particular person furthers 'a compelling governmental interest.' [2d] The government must 'demonstrate' that this application 'is the least restrictive means of furthering that compelling governmental interest.' [Finally, w]hat is meant by 'demonstrate' is explicitly defined in terms of the government's burdens 'of going forward with the evidence and of persuasion.'
United States v. Bauer, 84 F.3d
1549, 1558 (9th Cir. 1996).8 The beliefs
which have led petitioner not to pay federal income tax voluntarily are
indisputably religious in nature. See 42 U.S.C. § 2000bb-2(4)
("exercise of religion" under RFRA is same as under Constitution); Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993) (discussing constitutional meaning of "religion").9 At the core
of petitioner Packard's religious belief is the fundamental tenet of Quaker
theology that there is "that of God" in every person; she must
therefore renounce all preparation for war. Petitioner's nonpayment of income
tax is thus a mandated exercise of her religious beliefs, not a mere personal
choice. Compare Appx. B2.
The [plaintiffs'] First Amendment claim fails because they are required to comply with the tax laws despite religious-based disagreement with the allocation of certain funds. ... Furthermore, they are not entitled to force the IRS to levy the taxes due at additional time and expense.
Browne v. United States, 176 F.3d at
26, adopted at Appx. A2. Petitioner's claim is not predicated on a
"religious-based disagreement with the allocation of certain
funds," although she may well harbor such "disagreement."
Rather, it is based on the law's compulsion that she act in a manner which is
precluded by her exercise of religion -- in other words, that she
"voluntarily" pay for military activities and war preparation.
to be eligible for benefits, a claimant must be "able to work and ... is available for work"; and, further, that a claimant is ineligible for benefits "[i]f ... he has failed, without good cause ... to accept available suitable work when offered him by the employment office or the employer ...."
374 U.S. at 400-01. This Court
reversed the denial of benefits on the basis that the state's rejection of
her claim was not the "least restrictive means" of achieving a
"compelling governmental interest."
[O]ur decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of "religious hardship" without compelling reason.
Smith, 494 U.S. at
884, quoting Bowen v. Roy, 476 U.S. at 708 (1986) (plurality). Because
Congress has mandated the same sort of "system of individual
exemptions" from certain tax penalties, the equal-consideration
rationale of Bowen v. Roy applies to this case. The Free Exercise
Clause therefore forbids the Internal Revenue Service from "refus[ing]
to extend" its individualized system of waivers of penalties for late
payment and failure to estimate to cases involving "religious
hardship," such as this one. The court below utterly ignored that
binding rule when it affirmed the district court's dismissal of the
petitioner's complaint as having stated no claim upon which relief could be
For the foregoing reasons, petitioner
ROSA COVINGTON PACKARD prays that this Court grant her petition for a writ of
certiorari and reverse the judgment below.
February 17, 2000.
1 Respondent also moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss petitioner's claim for a refund of interest payments, asserting lack of subject matter jurisdiction under 26 U.S.C. § 6404(g). Petitioner abandoned that claim.
3 The district court's memorandum decision asserts, apparently intending a pejorative implication, that petitioner did not explain her position on her tax returns but rather "simply silently refused to pay her taxes." Appx. B4 n.3; 7 F.Supp. at 145. This accusation is contrary to the facts alleged in the complaint, which the lower court was bound to accept for purposes of ruling on the motion under Rule 12(b)(6). As the complaint states, she always sends an explanatory letter along with her return. Of course, to a Quaker, it is not necessarily a criticism to be accused of exercising her religion "silently."
4 Under the
terms of the Peace Tax Escrow Fund of the Purchase Quarterly Meeting of the
Religious Society of Friends:
6 There is no civil penalty literally applicable to a complete failure to pay income tax; the penalty is for late payment. Measured as 0.5% per month of "the amount shown as tax on any return" until certain notices are issued, and then at 1% per month, id. § 6651(d), the penalty reaches its maximum level of 25% after about 2« to 4 years. Id. § 6651(a)(2). Thus, in effect, the civil penalty for failure to pay federal tax at all is an addition of 25% of the tax amount. Forced collection from petitioner has never taken as long as two years.
7 See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974) (Fair Labor Standards Act); Scher v. United States, 305 U.S. 251, 254 (1938) (exception in criminal prohibition "affords matter for affirmative defense"); cf. Automatic Canteen Co. v. FTC, 346 U.S. 61, 75 (1953) (Frankfurter, J.: "burden of showing a justification" is ordinarily "on the one who claims its benefit").
8 Judge Noonan's comprehensive, scholarly study of the central role of religious freedom in the American constitutional system, The Lustre of Our Country: The American Experience of Religious Freedom, was published in 1998. The first words in Judge Noonan's book refer to the murderous persecution of Quakers for adhering to their beliefs in early New England, and he writes compellingly of those terrible days. Id. at 51-54.
9 While not all Quakers refuse to pay federal income taxes voluntarily, this fact does not lessen the protection available to the petitioner. See Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989) (individual's religious belief need not be church doctrine); Thomas v. Review Board, 450 U.S. 707, 715-16 (1981) (fact that some Jehovah's Witnesses will work on military production does not diminish religious nature of petitioner's refusal); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996) (Posner, Ch.J.) (religious practice need not be mandated for all adherents of religion for individual's exercise to be "substantially burdened" under RFRA).
10 In fact, it is difficult to believe that the expense of forcible collection from those who cannot pay voluntarily on account of their religious pacifism really exceeds the sum ultimately collected. A recent study concludes that the enactment of a specific conscientious objector provision for such individuals would result in a slight revenue increase to the Treasury. Marjorie E. Kornhauser, For God and Country: Taxing Conscience, 1999 Wisc. Law Rev. 939, 943 n.18 ("revenues would increase because many war tax resisters would pay taxes that they currently do not pay"); see Religious Freedom Peace Tax Fund Bill, H.R. 2660, 105th Cong.
11 Since the validity of that defense is likely to be the issue on which the case turns, however, the court may wish to order a reply under Rule 7(a). See Crawford-El v. Britton, 523 U.S. 574, 140 L.Ed.2d 759, 779, 118 S.Ct. 1584, 1596 (1998); 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1185 (1990). If an averment of inability to accommodate is denied, however, either automatically or factually in a reply, neither a motion under Rule 12(b)(6) nor a motion for judgment on the pleadings under Rule 12(c) could properly be granted in a RFRA case.
12 The requirement of collecting income tax from petitioner involuntarily itself results solely from respondent's total refusal, in arguable violation of RFRA, to accommodate petitioner's religious scruples against paying income tax into the General Fund. The petitioner does not raise that issue in this case, however.
13 The need to collect forcibly at all, and thus the added cost to the government, could also be avoided if respondent would offer petitioner any form of accommodation with respect to the application of her payments, even a method as simple as how it handles taxpayers who check off that they want $3 to go to the Presidential Election Campaign Fund. See 26 U.S.C. §§ 6096 (taxpayer choice), 9006(a) (transfers to Fund).
16 In Ehlert v. United States, 402 U.S. 99, 105 (1971), this Court expressly declined to "take sides in the somewhat theological debates about the nature of 'control' over one's own conscience" that had been addressed by certain lower court decisions under the draft law. The Court ruled that a post-induction opportunity to seek discharge from the Army as a conscientious objector, without having to bear arms within the military while pursuing that discharge, justified the Selective Service System in refusing to hear CO claims that "crystallized" after receipt of an induction notice, despite a procedure calling for cases to be reopened based on the emergence of circumstances that were "beyond [the draftee's] control." See United States v. Jenkins, 420 U.S. 358, 361-62 (1975). The issue of whether a person's religious beliefs are within her "control" need not be decided here either, because the Treasury Regulations and IRS Manual do not exclude difficult choices from the "reasonable cause" standard.
17 In our system, "civil disobedience" must be understood as action in violation of "formally binding general law," on the basis of principle, and then only when undertaken "without challenging the validity of the law." Alexander M. Bickel, The Morality of Consent 99 (1975).
18 For the same reasons, penalizing petitioner additionally for her failure to pay on the basis of religious principle, an obviously "unusual circumstance," would a fortiori be "against equity and good conscience." IRC § 6654(e)(3).
Petition for Writ of Certiorari: APPENDIX A
Ardmore, Pa., for Appellant.
*1 Appeal from the United States District Court for the District of Connecticut.
This cause came on to be heard on the record from the United States District Court for the District of Connecticut, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed on the authority of Browne v. United States, No. 98-6124, 1999 WL 304399 (2d Cir. Mar. 24, 1999), slip op. 3499 (opinion filed May 14, 1999), and Adams v. Commissioner of Internal Revenue, 170 F.3d 173 (3d Cir. 1999), which are not meaningfully distinguishable from the present case.
We have considered all of plaintiff's
contentions on this appeal and have found them to be without merit. The
judgment of the district court is affirmed.
FOR THE COURT:
1 THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
Petition for Writ of Certiorari: APPENDIX B
*144 David N. Rosen,
Rosen & Dolan, P.C., New Haven,
GOETTEL, District Judge.
Plaintiff has been a tax protester for the last sixteen years. She has filed tax returns but failed to pay the tax due thereon claiming that it is contrary to her deeply held religious beliefs (she is a member of the Religious Society of Friends "Quakers") against paying for wars or national defense. The Government has been collecting her tax by levying on her bank account which included the assessment of penalties and interest for late payments. Pursuant to 28 U.S.C. § 1346(a)(1), plaintiff has sued to recover the penalties collected from her for the tax years 1992 and 1993.1
The Government moves to dismiss this action contending that it fails to state a claim with respect to the sections of the Internal Revenue Code requiring penalties. See 26 U.S.C. §§ 6651(a)(2) & 6654. Plaintiff argues that this case cannot be decided on a motion to dismiss since she is entitled to a trial to establish that she had a sincere religious belief based on opposition to war and therefore opposes the payment of taxes which could be used to fund war.2 For purposes of this motion, the Government concedes that plaintiff has deeply held religious principles in opposition to war and that it was these principles which caused her to refuse to pay her taxes so that no trial is necessary.
There has been a long history of cases in which citizens have contested their obligation *145 to pay taxes on religious grounds. Almost thirty years ago, the Ninth Circuit rejected such religious objections finding that the Income Tax Acts do not aid a particular religion or punish anyone for their religious beliefs. It commented that "[o]n matters religious, it is neutral" and noted that the ability of the Government to function could be impaired if persons could refuse to pay taxes because they disagreed with the Government's use of tax revenues. Autenrieth v. Cullen, 418 F.2d 586, 588-89 (9th Cir. 1969), cert. denied, 397 U.S. 1036, 90 S.Ct. 1353, 25 L.Ed.2d 647 (1970). The Supreme Court took the same tack in United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), by holding that the payment of social security taxes was compulsory even if it violated Amish religious beliefs and interfered with their free exercise of religion. Earlier attempts by Quakers to object to the collection of taxes through withholding were also rejected. United States v. American Friends Serv. Comm., 419 U.S. 7, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974); see also United States v. Philadelphia Yearly Meeting of Religious Soc'y of Friends, 753 F.Supp. 1300 (E.D.Pa. 1990) (enforcing IRS levies against the salaries of two members of a Quaker organization). Congress has also rejected these "war tax deductions" as illustrated by its passage in 1982 of section 6702 of the Internal Revenue Code assessing an immediate civil penalty of $500 against taxpayers filing frivolous returns such as claiming a war tax deduction.3
Section 6651(a)(2) provides a penalty of one-half of a percent per month (up to a maximum of 25%) of the tax due on a return for each month the tax due remains unpaid. The penalty is automatic unless the failure to timely pay "is due to reasonable cause and not due to willful neglect." 26 U.S.C. § 6651(a)(2). In refund suits, the taxpayer bears the burden of establishing reasonable cause and no willful neglect, United States v. Boyle, 469 U.S. 241, 245, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985), and whether a plaintiff meets his or her burden is an issue of law. Id. at 249 n. 8, 105 S.Ct. 687.
Plaintiff argues that under the Boyle rationale, she was without fault in not making payment because she was unable to make such a payment "by a reason beyond her control: to wit, the requirement of religious conscience that she not voluntarily pay a tax that will support war or war preparations." Pl.'s Resp. to Def.'s Mot. to Dismiss, at 6. She does not contend that she is a member of a religious body which opposes the payment of taxes or that the Society of Friends could or would take any steps against her by virtue of her making payments.
This Court rejects the argument that following one's conscience for religious, philosophical, moral or other reasons amounts to a compulsion. It is a considered decision. While plaintiff can, like many other persons in the past, engage in acts of civil disobedience, she must expect to pay society's price if she does so.
Plaintiff concedes that she can be compelled to pay income tax despite her religious beliefs. She argues, however, that she should not be assessed a penalty for refusing to do so because she had "reasonable cause" for her failure to pay and is therefore entitled to the return of the penalty collected. The reasonable cause argument, however, was rejected in the foregoing cases as to a refusal to pay and it follows that the assessment of the penalty is in the same posture. This is particularly true since the Internal Revenue Code, as noted above, imposes a specific penalty on taxpayers asserting a "war tax deduction." Consequently, we find that plaintiff has failed to state a claim for relief under section 6651.
*146 Plaintiff makes a further argument that under section 6654 she has established "unusual circumstances" so that the imposition of the penalty "would be against equity and good conscience." 26 U.S.C. § 6654(e)(3)(A). There is nothing unusual in these circumstances. Religious objections to various types of taxes have been quite often asserted, and continually rejected. As we noted earlier, if she wishes to engage in civil disobedience, she must expect to pay the price. Kahn v. United States, 753 F.2d 1208, 1215-16 (3d Cir. 1985).
Plaintiff advances other arguments, such as a Free Exercise clause claim, which are equally unavailing under the existing precedents. The Government has a compelling interest in the collection of taxes and in the assertions of penalties to compel their payments.
The only new argument advanced by the plaintiff is that the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb to 2000bb-4, has changed the existing law since imposing penalties substantially burdens her exercise of religion which is prohibited by the RFRA. The pertinent part of the RFRA provides:
(a) In general.
Government shall not substantially burden a person's exercise of religion
even if the burden results from a rule of general applicability, except as
provided in subsection (b) of this section.
(1) is in furtherance of
a compelling governmental interest; and
(c) Judicial Relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.
42 U.S.C. § 2000bb-1. Indeed, plaintiff argues that the structure of the RFRA prevents the issue from even being considered on a motion to dismiss because she argues that the exception in subparagraph (b) constitutes an affirmative defense dependent upon facts which defendant would have to prove at trial and which she is not required to plead. We do not agree with that procedural interpretation. To the extent that plaintiff has claimed that the RFRA supports her suit for return of penalties already collected, it is her burden to establish either that the assessment of such penalties was not a compelling government interest or that it was not the least restrictive means of furthering that Government interest.
As the Supreme Court has noted, the RFRA can be a source of extreme mischief. As applied to state and local governments, it has been found to be unconstitutional. City of Boerne v. Flores, --- U.S. ---, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Plaintiff cannot seriously argue that there is no compelling government interest in collecting taxes. Rather, she contends that assessing penalties is not the least restrictive means of furthering that interest. Plaintiff urges this Court to accept the argument that the least restrictive means of collecting taxes is to require the IRS to levy upon a taxpayer's bank account. Indeed, plaintiff argues that the penalties are ineffective because she has been refusing to pay her taxes voluntarily for almost twenty years and that the Government has found a means of collecting them nevertheless. (We observe that the fact that she has filed this suit indicates her displeasure at paying the penalties).
We reject the argument that it is less restrictive to levy on assets than to impose penalties in order to further the compelling governmental interest of collecting taxes, especially here, where plaintiff never stated on her tax returns why she refused to pay taxes. If we were to accept plaintiff's argument, it would place a burden on the Government to find a taxpayer's assets, if there are any assets at all upon which the IRS could levy. Also, if the Government could not assess a penalty for the late or non-payment of taxes, we would be opening Pandora's Box to tax evasion because, in effect, plaintiff's argument says to all who will not pay taxes for religious, philosophical, moral or other reasons *147 that the Government must first levy before imposing a penalty. We refuse to accept such an impractical and unworkable system.
The argument that the Government's means of coercing tax payment with penalties for non-payment violates the RFRA was effectively rebutted in a recent decision by Chief Judge Murtha of the District of Vermont in Browne v. United States, Civ. No. 1:97-349 (D.Vt. May 14, 1998).4 He noted that voluntary compliance with the tax code is the least restrictive approach possible and noted:
Undoubtedly, many Americans disagree with some discrete potential use of their tax monies. Allowing individuals like the plaintiffs to withhold a portion of their due taxes would encourage chaos in that every individual with an objection to a particular governmental expenditure would be able to unilaterally impose additional, time-consuming administrative burdens on the IRS. Furthermore, acceptance of the plaintiffs' arguments would encourage more governmental involvement in religious matters in that the IRS would be required to assess the genuineness of each tax protester's religious beliefs. See Lee, 455 U.S. at 252 n. 2 [102 S.Ct. 1051]. Finally, it is difficult to imagine a means of compliance with the tax laws which is less restrictive than the voluntary compliance to which the plaintiffs object.
Id. slip op. at 8-9. Assuming that the RFRA is
constitutional as applied to the Government's collection of taxes, we see no
less restrictive means of inducing the payment of taxes by taxpayers
generally or, for that matter, for religious tax protestors. Since the income
tax system is a self-reporting and self-assessment one based on voluntary
actions, the Government cannot be compelled to resort to cumbersome methods
to encourage compliance. To do so "will affect adversely taxpayers'
willingness to perform under our voluntary assessment system." Flora
v. United States, 362 U.S. 145, 176-77 n. 43, 80 S.Ct. 630, 4 L.Ed.2d 623
(1960) (quoting Riordan, Must You Pay Full Tax Assessment Before Suing in
the District Court?, 8 J. Tax'n 179, 181 (1958)). Plaintiff's argument
about using a less restrictive means of compelling compliance by levying
taxpayers' assets is at odds with the Government's compelling interest in the
collection of taxes under the present system. We therefore find that the RFRA
affords no relief to plaintiff from the penalty provisions of the Internal
Revenue Code. The Government's motion to dismiss (document # 5) is GRANTED.
The Clerk will enter judgment for defendant.
1 Due to the prerequisites to filing suit in federal court under 28 U.S.C. § 1346(a)(1), see 28 U.S.C. § 7422(a), Flora v. United States, 362 U.S. 145, 157-58, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), and Shore v. United States, 9 F.3d 1524, 1527-28 (Fed. Cir. 1993), plaintiff has alleged facts in her complaint that she filed claims for refunds, Compl. pp 25-29, 46-50, and that she paid all penalties through IRS levies on her bank account, Compl. pp 19-22, 40-43. We note that the Anti-Injunction Act forbids a district court from enjoining the assessment or collection of any tax. 26 U.S.C. § 7421. This ban partly exists to further the purpose of requiring "that the legal right to the disputed sums be determined in a suit for refund." Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Because plaintiff is seeking only a refund for penalties already paid based on her 1992 and 1993 tax returns, and not an injunction against the payment of any future, potential penalties, we properly have jurisdiction over her complaint under section 1346. Plaintiff also seeks to recover the interest charged on the late payments but her counsel now concedes that we have no jurisdiction over that claim.
2 We note that, for the years in question, national defense expenditures were only a small part of the national Government's expenses paid for from income tax collections. Unlike some Quakers, plaintiff objects to paying any tax rather than deducting that portion which she believes the Government allocates to the Department of Defense. See Browne v. United States, Civ. No. 1:97-349 (D.Vt. May 14, 1998) discussed infra.
3 Plaintiff was not subject to such a penalty because her tax return did not make such a claim and she simply silently refused to pay her taxes.
4 These taxpayers paid most of their taxes but withheld 28% which they computed as representing the portion of their taxes allocated to the Department of Defense.
Petition for Writ of Certiorari: APPENDIX C
STATES COURT OF APPEALS
At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the United States Courthouse, Foley
Square, in the City of New York, on the 19th day of November One thousand
nine hundred and ninety nine
Upon consideration by the panel that decided the appeal, it is Ordered that said petition for rehearing is DENIED.
It is further noted that the petition for rehearing en banc has been transmitted to the judges for the court in regular active service and to any other judge that heard the appeal and that not such judge has requested that a vote be taken thereon.
By: /s/Beth J. Meador
Petition for Writ of Certiorari: APPENDIX D
Section 6651 of the Internal Revenue Code provides, in pertinent part:
§ 6651. Failure to
file tax return or to pay tax.
26 U.S.C. § 6651.
§ 6654. Failure by
individual to pay estimated income tax.
26 U.S.C. § 6654.
§ 1.6161-1 Extension
of time for paying tax or deficiency.
26 C.F.R. § 1.6161-1.
§ 301.6651-1 Failure
to file tax return or to pay tax.
26 C.F.R. § 301.6651-1.
§ 601.106 Appeals
26 C.F.R. § 601.106.
1218 Policies of the Internal Revenue Service
(1) All Service policy
statements are contained in the Handbook, Policies of the Internal Revenue
Service, IRM 1218, numbered to correspond to the Manual Part to which the
policy has principal application. However, the policy statements apply to all
Service personnel and activities. * * *
P-2-7 (Approved 12-29-70) Reasonable cause for late filing of return or failure to deposit or pay tax when due
Any sound reason advanced by the taxpayer as the cause for delay in filing a return, making deposits under the Federal Tax Deposit System, or paying a tax when due, will be carefully analyzed to determine whether the applicable penalty should be asserted. Examples of sound causes for delay which, if established, will be accepted as reasonable cause are shown below.
(1) Death or serious
illness of the taxpayer or a death or serious illness in his/her immediate
Other explanations may be acceptable
Acceptable explanations of delinquency are not limited to the examples given above, since any reason for delinquency in filing or making deposits or payments which establishe[s] that the taxpayer exercised ordinary business care and prudence but was nevertheless unable to comply within the prescribed time will be accepted as reasonable cause. * * * *
184.108.40.206.5 No Appeals Conference or Concession on Certain Arguments (9-15-98)
(1) As provided in Reg. 601.106(b), Statement of Procedural Rules, the administrative appeal procedures do not extend to cases involving solely the failure or refusal to comply with the tax laws because of moral, religious, political, constitutional, conscientious, or similar grounds. Such arguments will be given no weight in settlement.
120.1.1 Introduction [to the Penalties Handbook,
IRM 120.1] and Penalty Relief (8-20-98)
(1) Penalties exist to
encourage voluntary compliance by supporting the standards of behavior
expected by the Internal Revenue Service.
220.127.116.11.1 Encouraging Voluntary Compliance (8-20-98)
(4) Although penalties
support and encourage voluntary compliance, they also serve to bring
additional revenues into the Treasury, impose remedial charges against taxpayers,
and indirectly fund enforcement costs. However, these results are not reasons
for creating or imposing penalties.
18.104.22.168.1 Reasonable Cause (8-20-98)
(1) Reasonable cause is
based on all the facts and circumstances in each situation and allows the
Service to provide relief for a penalty that would otherwise be assessed.
Reasonable cause relief is generally granted when the taxpayer exercises
ordinary business care and prudence in determining their [sic] tax
obligations but is unable to comply with those obligations.
22.214.171.124.1.1 Standards (8-20-98)
(1) Any reason that
establishes a taxpayer exercised ordinary business care and prudence but was
unable to comply with the tax law may be considered for penalty relief.
126.96.36.199.1.2 Ordinary Business Care and Prudence (8-20-98)
(1) Ordinary business
care and prudence includes making provision for business obligations to be
met when reasonably foreseeable events occur. A taxpayer may establish
reasonable cause by providing facts and circumstances showing the taxpayer
exercised ordinary business care and prudence (taking that degree of case
that a reasonably prudent person would exercise), but nevertheless was unable
to comply with the law.
120.1.2 Chapter 2 - Failure to File/Failure to
(1) IRM 188.8.131.52, [sic]
provides guidance for determining if the taxpayer meets the criteria that
will allow relief from a penalty. * * *
120.1.3 Chapter 3 - Estimated Tax Penalties
(1) For tax years
beginning after December 31, 1983, IRC Section 6654(e)(3)(A) provides that
the estimated tax penalty may be waived if the failure to make the estimated
payment is due to casualty, disaster or other unusual circumstances such that
the imposition of the penalty would be against equity and good conscience.
This is not equivalent to reasonable cause.
On Petition For A Writ
of Certiorari To The
BRIEF AMICUS CURIAE OF NEW YORK YEARLY
TABLE OF CONTENTS
BRIEF OF NEW
YORK YEARLY MEETING
New York Yearly Meeting of the Religious Society of Friends (“NYYM”) is the umbrella organization for the Quaker Meetings in New York, part of Connecticut and northern New Jersey. Rosa Packard is a member of Purchase (New York) Friends Meeting, which is one of the Meetings within NYYM.
Rosa Packard's case reflects the
Religious Society of Friends' long history of opposition to warfare in all
forms and of advocacy of alternatives to violence for settling conflicts.
Thus, on December 7, 1997, NYYM endorsed a minute supporting Rosa Packard's
effort “to seek legal recognition for the reasonableness of her tax witness
under the free exercise of religion clause of the First Amendment,”2 and, on July
28, 1999, a minute was approved for NYYM to submit an amicus brief in
support of Rosa Packard's petition for a writ of certiorari.3
We live in a culture so inured to
violence that the quiet voice of peace scarcely can be discerned. From candy named
“War Heads” to missiles called “Peacemakers”, we are daily inundated by
glorification of violence and distortion of the true nature of violence.
Under these circumstances, the long history of Friends' peace testimony tends
to be overlooked. The Quaker peace testimony significantly contributed to the
development of the nation's self- conception and maintains an influential
place in the national ethos.4 Some of that
history is described in Point I, below.
This Court has instructed that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 884 (1990), quoting Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality). The petition of Rosa Packard amply demonstrates that the Internal Revenue Service interprets its regulations at issue here to support a flexible system of individual exemptions. Yet, in reliance on the presumption of burden for tax matters supposedly embedded in United States v. Lee, 455 U.S. 252 (1982), the courts below refused to consider whether the IRS's refusal to “extend that system to cases of religious hardship” like Rosa Packard's offends the First Amendment’s Free Exercise Clause or the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
The confluence of Smith and Lee appears to have created a jurisprudence in which the exercise of religious conscience will be accommodated in matters involving taxation only if convenient, even in statutes or regulations providing a system of dispensations for business and other excuses. Such a rule of law flies in the face of the First Amendment's guarantee of the free exercise of religion and may cause persons of good faith to disengage from civil society.
The long history of multifaceted governmental accommodation of Friends' practices reflects the profound respect for acts of religious conscience embodied in the First Amendment's Free Exercise of Religion Clause. Because they entail modification of rules or requirements of general application, requests for accommodation always appear burdensome or unmanageable to the magistrate or administrator saddled with responsibility for executing a law. See, e.g., Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972) (Determining that accommodating religious objection to participation in mandatory high school ROTC program would not unduly burden school board and officials). Those fears were sufficiently troubling to the district court to prompt it to declare that accommodating Rosa Packard's tax witness “would be opening Pandora's Box”, would create “an impractical and unworkable system” and would be “cumbersome”. Packard v. United States, 7 F.Supp.2d 143, 146, 147, Pet. App. B8, B9 (D.Conn. 1998).
The history of governmental
acknowledgment of Quaker testimonies and witness, however, demonstrates that
requests for accommodation of religious conscience should be afforded careful
consideration before being rejected on the basis of inchoate fears of
pandemonium or burden, and the Religious Freedom Restoration Act's mandate to
allow exceptions for religious objectors unless the government demonstrates
that it has utilized “the least restrictive means”5 would appear
to compel such a detailed analysis. Some of that history of accommodation is
summarized in Point II, below.
Quaker practice shares with the American judicial system belief in, and reliance upon, process - faith in the force of reason and reasoning together - to assure correct and legitimate outcomes on a case-by-case basis. The apparent unwillingness or failure of the courts below to provide a discerning and particularized consideration of the merits of Rosa Packard's claim, as detailed in her petition, is a matter of great concern to Quakers because it suggests a governmental bias against religious conscience. Cf. Cassius Marsellus Clay, Jr. v. United States, 403 U.S. 698 (1971) (Conscientious objector determinations must be made on an individualized basis and not through application of a presumption or “rule of law” as to applicant’s religious sincerity). As Judge John T. Noonan explains in discussing James Madison and the intent of the Religion Clauses:
The radicalness of JM - should we say the madness of Madison? - was to suppose that each individual has a zone in which he or she responds to the voice of God, a zone beyond political authority.... A’s conscience might lead to refusal to cooperate in the common defense of the community (Mr. Madison was well aware of his conscientious-objector constituents). JM was willing to run these risks without discussing them, confident, I suggest, that the difficult cases would be rare and de minimis - confident, after all, that the voice of God would not often be heard in distorted or eccentric ways....
In the ultimate and absolute relation of each individual to God lies the limitation on civil society and civil government on which JM insists. Without that relation, why should the individual not be absorbed by the community, why should a society be constrained to respect conscience? With that relation to a Creator, Governor, Judge in existence for each individual, with that personal responsibility to a personal God, a government of human beings must be a government of limited powers.6
Modern Constitutional analysis,
particularly as to the Religion Clauses, frequently employs a substantial
historical review to discern the probable intent of the Founding Fathers. See,
e.g., Lynch v. Donnelly, 465 U.S. 668, 673 (1984). In this
spirit, the discussion below highlights (i) the history and religious
character of the Society of Friends' opposition to warfare, including
Friends' peace tax witness, and (ii) the long history of governmental
acknowledgment of Friends' practices and beliefs in recognition of the
mandate of the First Amendment's Free Exercise of Religion Clause.
We do utterly deny all outward wars and strife and fightings with outward weapons, for any end or under any pretense whatsoever. And this is our testimony to the whole world.... [T]he spirit of Christ, which leads us into all Truth, will never more move us to fight and war against any man with outward weapons, neither for the Kingdom of Christ, nor for Kingdoms of this world.7
Quakers are well known for their
unyielding religious conviction that attention to the Inner Light, present in
every person, empowers all of us to resolve disputes without resort to
the machinery of war. This conviction results in Friends' stand against
warfare in all forms.8
The Religious Society of Friends was born during the era of violent revolution and counter-revolution in seventeenth-century England. The times compelled the early Friends immediately to confront their faith in the Inner Light of every person in response to demands that they participate in these British wars.
With the restoration of the British monarchy in 1660, the peace testimony was first formally articulated in the official Declaration delivered to Charles II in January 1661 (quoted at the start of this section).9 From this date on, the peace testimony has been an integral and distinctive feature of Friends' beliefs and practices, distinguishing the Society of Friends from nearly all other religious groups and calling Quakers to personal witness and testimony to support the end of warfare and the promotion of nonviolent alternatives for resolving disputes. This is reflected in Advice # 14 of NYYM's Faith and Practice (1998 ed.) (at 60- 61)(emphasis added):
Friends are earnestly cautioned
against the taking of arms against any person, since “all outward wars and
strife and fightings with outward weapons” are contrary to our Christian
testimony. Friends should beware of supporting preparations for war even
indirectly, and should examine in this light such matters as
non-combatant military service, cooperation with conscription, employment or
investment in war industries, and voluntary payment of war taxes.
Friends seek to make real their faith and concerns through personal acts (“witness and testimony”). As a core Quaker belief, the peace testimony has been expressed in a multitude of ways including (i) the refusal to pay taxes used to support military objectives, (ii) refusal to participate in military service, and (iii) acting to prevent warfare and providing humanitarian aid in times of war.
1. Refusal To
Pay War Taxes.
For example, in 1755, while the Pennsylvania Assembly was debating raising funds “for the king's use” in the French and Indian War, a delegation of 20 Quakers addressed the Assembly in opposition to the raising of money for the war. They warned that “many among us will be under the necessity of suffering rather than consenting thereto by the payment of a tax for such purposes”.11
When the bill became law, these Friends published “An Epistle of Tender Love and Caution to Friends in Pennsylvania” to explain the basis for this testimony and to encourage others to follow their faith in refusing to contribute to war taxes:
[W]e therefore think that as we cannot be concerned in wars and fightings, so neither ought we to contribute thereto by paying the tax directed by the said Act.12
Quakers expressed comparable positions in opposition to taxation for military purposes during virtually every American conflict from the Revolutionary War to the present.13
Quaker organizations also have sought to support individual refusals to pay taxes destined for military purposes. Many Friends and Quaker organizations, including New York Yearly Meeting, refused to pay the federal telephone tax imposed to help finance the Vietnam War.14 Similarly, New York Yearly Meeting and its constituents, Purchase Quarterly Meeting and Purchase Monthly Meeting, have long actively supported the peace tax testimony in general and the leading of Rosa Packard in this case. Nearly 30 years ago, NYYM adopted Minutes supporting resistence to war taxes and creating a procedure for assisting its employees who declined voluntarily to pay taxes allocable to military purposes.15 In February 1991, Purchase Quarterly Meeting established the Peace Tax Escrow Fund utilized by Rosa Packard and continues to administer the Fund for the tax witness of her and others. See Complaint at ¶¶ 14-15, 36 (JA 7a, 12a). Purchase Monthly Meeting regularly records the amount of interest and penalties seized from Rosa Packard, which is the subject of this action, as a “minute of suffering for religious conscience”. And New York Yearly Meeting, in addition to authorizing and preparing this and a previous amicus brief, has similarly recorded its support of her witness.
Friends' belief that no human being can rightly be deemed an enemy is most commonly reflected in efforts to aid those caught in the horrors of violence and to seek alternatives to violence for the resolution of disputes and differences. For example, as they have done in numerous violent conflicts over three centuries, Friends acted to provide medical supplies and other relief assistance to all sides in the Vietnam War and during the more recent struggles in Bosnia and Rwanda. The Friends Committee on National Legislation in Washington and the Quaker United Nations Offices in New York and Geneva work actively with Congress and the United Nations to develop alternatives to force and coercion in national and international affairs.16 Other well-known Quaker organizations which seek to pursue and promote non-violent alternatives for the resolution of disputes include the American Friends Service Committee, the Alternatives to Violence Project and Friends Peace Team Project.
The peace testimony also finds expression in Friends' work to relieve or overcome poverty, injustice, and other forms of suffering, which are among the causes of war.17 It was work of this sort that was the primary basis for the award of the Nobel Peace Prize to the Religious Society of Friends in 1947.18
All the expressions of the peace testimony find their inspiration in the conviction that the spirit of God dwells in each person, and that the calling of Friends is to listen and speak to that of God in others, thereby strengthening that of God within themselves. There are, of course, conflicts and disputes, and we all must struggle with evil. But in such struggles, Friends' only weapons are love, gentleness, faith, patience, purity, grace, virtue, temperance, self-denial, meekness and innocence. Petitioner Rosa Packard's peace witness profoundly reflects these core Quaker religious beliefs.
of Friends' Peace Testimony.
By the middle of the eighteenth century, the absolute refusal of Quakers to fight was so familiar that at least five colonies -- New York, Virginia, Massachusetts, North Carolina and Rhode Island -- allowed Quakers to be exempted from the military service obligatory for other able-bodied males. (Pennsylvania, more heavily Quaker, did not even adopt a military conscription act until 1775.)19
During the Revolutionary War, both the Continental Congress and colonial governments afforded exemption from military service for Quakers and other religious conscientious objectors.20 These exemptions generally were continued by state governments until the demise of the state militia system in the 1850's.21
Conscientious objection to military service has also long received Federal governmental recognition.22 With the Civil War came the first federal universal military service draft. In March 1863 and February 1864, Congress adopted acts exempting from service “members of religious denominations, who shall by oath or affirmation declare that they are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith and practice of said religious denominations....”23 Every subsequent draft law has included exemptions for persons whose religious conscience precluded their accepting military service.24 And conscientious objection has continued to be an important expression of the peace testimony by Quakers in the United States.25
While accommodation of Quaker objections to the payment of certain taxes has been complicated because most taxation programs are general revenue raising measures, rather than dedicated to particular uses, there are, nonetheless, significant examples of such governmental accommodations.
During the Civil War, Congress specifically accommodated Quaker conscientious objections to the payment of “war taxes” by providing that the commutation fee to be paid for exemption from military service was to be applied solely to humanitarian purposes.26
of Other Quaker Practices.
State laws also have long accommodated (i) Friends' marriage practices, typically requiring only that those “marriages may respectively continue to be solemnized in the manner, and agreeably to the regulations, of their respective societies”,32 and (ii) Quaker manumissions of slaves, which frequently were not done in accordance with statutory requirements (where permitted at all).33
During the Civil War, the Federal Government accommodated the Quaker peace testimony by allocating conscientious objectors’ commutation fees to humanitarian purposes without suffering undue burden. Similarly, today the Internal Revenue Service is able to administer the voluntary $3.00 campaign finance check-off without disrupting our tax system. In light of these examples, surely Rosa Packard's act of religious conscience deserves a discerning consideration before determining that accommodation by providing her relief from discretionary penalties is not required by the First Amendment or the Religious Freedom Restoration Act.
For all the foregoing reasons, together with those set forth in the petition of Petitioner Rosa Covington Packard, Amicus Curiae New York Yearly Meeting of the Religious Society of Friends urges the Court to grant the petition for a writ of certiorari.
Dated: New York, New York
1 This brief is not authored in whole or in part by counsel for either party, and no monetary contribution was made in support of its preparation or submission by any person or entity other than amicus and its counsel.
2 NYYM, Yearbook 1998: Proceedings and Appointments, Minute # 27, at 7-8 (pub. Nov. 1998).
3 NYYM, Yearbook 1999: Proceedings and Appointments, Minute # 32, at 118 (pub. Nov. 1999).
4 See John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom (Univ. Calif. Press 1998) (hereinafter cited as “Noonan”), at 51-54, 72- 74, 89-91, 222; City of Boerne v. Flores, 521 U.S. 507, 557-560 (1997)(O’Connor, J., dissenting).
5 42 U.S.C. § 2000bb-1(b)(2).
6 Noonan at 89. Judge
Noonan goes on to identify “Ten Commandments” for the proper relationship of
government to religion, the Ninth of which states:
7 Declaration “Against All Plotters and Fighters in the World” addressed to Charles II by George Fox, Richard Hubberthorne and ten other Friends, January 21, 1661; quoted in The Journal of George Fox, John L. Nickalls, ed. (London: Cambridge Univ. Press 1952), at 399- 400; see, also, Peter Brock, The Quaker Peace Testimony 1660 to 1914 (Sessions Book Trust, York, England 1990) (hereinafter cited as “Brock”), at 25.
8 Nonetheless, the district court dismissed Rosa Packard's act of religious conscience by casting it together with acts grounded in “philosophical, moral or other reasons”. Packard v. United States 7 F.Supp.2d at 145, 146-47, Pet. App. B5, B8.
9 Shortly thereafter the Quaker peace testimony and witness, together with other Friends' principles and practices, were systematically articulated by Robert Barclay in his An Apology for the True Christian Divinity, first published in Latin in 1676 and in English in 1678. See Brock at 27-29.
10 See Brock at 184-196.
11 Brock at 117.
12 The Journal and Major Essays of John Woolman, Phillips P. Moulton, ed. (New York 1971), at 85-86; quoted and discussed in Brock at 118.
13 See Brock at 190-196; Noonan at 222-225.
14 Quaker Crosscurrents: 300 Years of Friends in the New York Yearly Meetings, Hugh Barbour, ed. (Syracuse Univ. Press 1995) (hereinafter cited as “Quaker Crosscurrents”), at 313.
15 Minutes and
Proceedings of the 276th/277th Sessions of New York Yearly Meeting of the
Religious Society of Friends, Minute # 117, at 23, & Minute #
20, at 73 (July 25-August 1, 1971 & July 30-August 6, 1972).
16 Quaker Crosscurrents at 253, 281, 304- 307, 312.
17 See, e.g., Hans A. Schmitt, Quakers & Nazis: Inner Light in Outer Darkness (Univ. of Missouri Press 1997).
18 D. Elton Trueblood, The People Called Quakers (1966), at 257. Other examples include the International Peace Research Association, which was founded by Quakers Kenneth and Elise Boulding, and VISA and VISTA, which are modeled on earlier Quaker youth work camp programs. See Quaker Crosscurrents at 295.
24 See, e.g., United States v. Seeger, 380 U.S. 163, 170-171 (1965); United States v. Geary, 368 F.2d 144, 147-148 (2d Cir. 1966); Military Selective Service Act, § 6(j), 50 U.S.C. (App.) § 456(j); Noonan at 222-225.
26 See Brock at 169-170. The Act provided that conscientious objectors who chose not to perform noncombatant military service “shall pay the sum of three hundred dollars ... to be applied to the benefit of the sick and wounded soldiers.” Act of Feb. 24, 1864, § 17, 38th Cong., 1st Sess., ch. XIII, 13 Stat. 6, 9.
27 New York Yearly Meeting of the Religious Society of Friends, Discipline of the Yearly Meeting of Friends (New York: Collins & Perkins 1810), at 47-48; New York Yearly Meeting of the Religious Society of Friends, Faith and Practice (1998 ed.) at 23, and Advice # 13 at 60.
29 For example, New York State in 1787 renewed the right of Quakers to affirm rather than swear. Sessions Laws of the State of New York: 1785-1788, Vol II, at 410-11. In 1798, New York extended the right to affirm to “Shaking Quakers” (Shakers) and the “Universal Friends”. Sessions Laws of the State of New York: 1797-1800, Vol IV, at 214.
30 See, e.g., 28 U.S.C. § 1746; Federal Rules of Evidence, Rule 603; Federal Rules of Civil Procedure, Rule 43(d); 7B McKinney's, New York Civil Practice Laws and Rules § 2309(b). See also United States Constitution, Art. I, § 3, cl. 6; Art. II, § 1, cl. 3; Art. VI, cl. 3.
32 The Revised Statues of the State of New York (1829), Vol. II, at 141. Current New York law continues the exemption “among the people called friends or quakers”. 14 McKinney's, New York Domestic Relations Law § 12.
33 For example, New York State Law specifically recognized Quaker manumissions of slaves, though they had not been always made “in strict conformity to the statutes”. Sessions Laws of the State of New York: 1797- 1800, Vol. IV, at 168.
TABLE OF CITED AUTHORITIES
(Please note that the pages refer to the original printed document)
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ROSA COVINGTON PACKARD has petitioned this Court
for a writ of certiorari to review the order of the Second Circuit denying
her appeal from a Connecticut district court decision in a tax refund action.
The decision below upheld an order dismissing petitioner's civil complaint
under Fed.R.Civ.P. 12(b)(6). The complaint had sought a refund of certain
penalties only -- not of taxes or of interest -- for late payment of income
taxes and for failure to make quarterly estimated payments. The lateness
resulted solely from petitioner's inability to pay voluntarily, an exercise
of her Quaker religious convictions against paying for military activities
and war preparation.
Under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., is the government's asserted inability to further its compelling interest by any means less restrictive of the plaintiff's religious liberty an affirmative defense to be pleaded under Fed.R.Civ.P. 8(c), or may a court grant a Rule 12(b)(6) motion to dismiss the complaint on the unproven basis that the plaintiff's objection, by virtue of being religious in nature, cannot be accommodated?
Petition, at i. Because the Browne case
was not decided in the district court under Rule 12(b)(6), the petition in
that case did not advance any of the arguments interrelating the statutory
language of RFRA with the operation of the Federal Rules of Civil Procedure
that are advanced in Ms. Packard's petition as arguments for granting
certiorari. For these reasons, the respondent's Brief in Opposition misses
In light of the Free Exercise Clause, does a civil complaint for a refund of tax penalties state a claim on which relief can be granted by averring that the IRS categorically denies statutorily authorized penalty waivers to applicants whose religious convictions, if not accommodated, prevent them from voluntarily making timely payment of income tax, even though the IRS generally gives individualized consideration to taxpayers who allege that circumstances beyond their control impeded timely payment?
The respondent argued in opposition to the Browne
petition that the petitioners in that case "failed to establish
reasonable cause .... Their complaint did not allege that they exercised
ordinary business care, that they were unable to pay the taxes, or that undue
financial hardship would result from timely paying the taxes in
question." Browne BO 6. This argument, although adopted by
respondent as a reason to deny certiorari in this case, is inapplicable to
Any sound reason advanced by the taxpayer as the cause for delay in ... paying a tax when due ... will be carefully analyzed to determine whether the applicable penalty should be asserted.
IRM 1218, IRS Policy P-2-7 (App. D9); see
generally Pet. 26-27 & App. D8-D12. The Internal Revenue Manual lists
as "examples of sound causes" a "death or serious
illness" in the taxpayer's immediate family. App. D9. The taxpayer's own
death or illness might make compliance impossible, but a taxpayer's attention
to a relative's death or illness only reflects a matter of making a
pressing but voluntary decision among priorities. The respondent's claim that
religious exercise involves only free choice, and that voluntary choices
never constitute "reasonable cause" is belied by examples such as
this. The respondent's argument merely serves to justify the kind of
discriminatory exclusion of religious reasons that RFRA and the Free Exercise
For the foregoing reasons, and for the reasons
discussed more fully in her Petition, ROSA C. PACKARD prays that this Court
grant her petition for a writ of certiorari, and reverse the judgment below.
March 24, 2000
1 In particular, Ms. Packard's petition does not challenge either "the imposition of federal income taxes" or of "interest." BO i. Her petition quite clearly and specifically only challenges the imposition of certain civil penalties, as a careful reading even of the Brief in Opposition reveals.
2 While conceding the sincerity and religious nature of petitioner's beliefs which underlie her inability to comply without some accommodation, BO 2, respondent nevertheless also misstates the nature of petitioner's objection. Petitioner has never described her inability to pay "voluntarily" as an objection to payments made "without the compulsion of a court order." BO 2. To petitioner, a court order would be no different from a legislative command. Petitioner's religious beliefs prevent her from writing the check if the proceeds would be used for military purposes.
3 The respondent claims, in particular, that these cases demonstrate a settled body of precedent rejecting Free Exercise challenges to the imposition of tax penalties. Browne BO 11. In fact, none of these cases raised any of the issues presented by our petition. Only one (Nelson v. United States, 796 F.2d 164 (6th Cir. 1986), mis-cited by the respondent) even discusses the statutory basis for abatement of penalties. And Nelson is a "frivolous return" case under 26 U.S.C. § 6702, which does not have a "reasonable cause" or "exceptional circumstances" exemption. Moreover, at least one thoughtful district court opinion, applying the test later adopted by Congress in RFRA, did rule in favor of Quaker objectors to voluntary income tax payment. See American Friends Service Committee v. United States, 368 F.Supp. 1176 (E.D.Pa. 1973), rev'd on other grnds., 419 U.S. 7 (1974) (per curiam).
4 The other cases cited by the respondent fare little better. Hernandez v. Commissioner, 490 U.S. 680, 699-700 (1989), provides no guidance in RFRA cases, because it also did not require the government to demonstrate with evidence the truth of its assertion that the tax system could not survive recognition of religious exceptions. None of the pre-Smith cases cited by respondent as approving the imposition of penalties for failing to comply with the tax laws for religious reasons even "purports" to apply a Sherbert-type analysis to a claimed exemption from penalties imposed for failure to file or pay taxes (including estimated taxes). Browne BO 11.
98-6223 UNITED STATES COURT OF APPEALS for the
ROSA C. PACKARD Plaintiff-Appellant, -against- UNITED STATES OF AMERICA,
Defendant-Appellee.ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
BRIEF AMICUS CURIAE OF NEW YORK YEARLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS
TABLE OF CONTENTS
Table of Authorities
Interest of the Amicus
POINT I: THE NATURE OF AUTHORITY WITHIN THE QUAKER COMMUNITY
A. Fundamental Beliefs
B. The Beginnings of Quakerism
C. Minding The Light
D. Founding Monthly Meetings
E. Evolving Views of Authority Over Time
POINT II: THE QUAKER PEACE TESTIMONY
A. Origins of the Quaker
B. Expressions of the Peace Testimony
1. Refusal To Pay War Taxes
2. Other Expressions of the Peace Testimony
a. Conscientious Objection to Military Service
b. Humanitarian Actions
POINT III: HISTORY OF GOVERNMENTAL ACCOMMODATION OF QUAKER TESTIMONIES
A. Accommodation of Friends'
B. Exemptions From Paying Taxes
C. Accommodations of Other Quaker Practices
Corporate Disclosure Statement