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No. 99-
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IN THE
SUPREME COURT OF THE UNITED STATES
_______________
ROSA COVINGTON PACKARD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
=======================
Petition for Writ of Certiorari
To the United States Court of Appeals
for the Second Circuit
============
PETITION FOR WRIT OF CERTIORARI
============
PETER GOLDBERGER
Counsel of Record
JAMES H. FELDMAN, JR.
50 Rittenhouse Place
Ardmore, PA 19003-2276
(610) 649-8200
Attorneys for Petitioner
February 2000
QUESTIONS PRESENTED
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
accommodated?
2. 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?
LIST
OF ALL PARTIES
The caption of
the case in this Court contains the names of all parties (petitioner Packard
and the United States).
TABLE
OF CONTENTS
QUESTIONS
PRESENTED
LIST OF ALL
PARTIES
INDEX TO
APPENDIX
TABLE OF
AUTHORITIES
PETITION
OPINIONS BELOW
TEXT OF
CONSTITUTIONAL PROVISION,
FEDERAL STATUTES, RULES OF
PROCEDURE, AND REGULATIONS
INVOLVED
STATEMENT OF
THE CASE
a. Course of
Proceedings
b. Statement of
Facts
c. Statement of
Jurisdiction of Lower Court
REASONS FOR GRANTING THE WRIT
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 discretionary penalties 10
2. The lower courts allowed an application of the Internal Revenue Code's
penalty provisions which violates this Court's binding precedent under the
Free Exercise Clause, when they permitted the IRS to discriminate against
religious reasons, as compared with all other equivalent impediments to
individual compliance with a generally applicable law 21
CONCLUSION
INDEX
TO APPENDIX
A. Summary Order of the Second Circuit
(filed June 1, 1999)
B. Opinion of
the District Court, 7 F.Supp.2d 143 (D.Conn. 1998)
C. Order of
the Second Circuit denying rehearing (November 19, 1999)
D. Internal
Revenue Code, Treasury Regulations and Internal Revenue Manual provisions
involved
TABLE OF
AUTHORITIES
CASES
Adams v. Comm'r, 170 F.3d 173 (3d Cir. 1999),
cert. denied, No. 99-798 6, 11, 15, 21-23, 29
Automatic Canteen Co. v. FTC, 346 U.S. 61 (1953) 11
Bowen v. Roy, 476 U.S. 693 (1986) 23-26, 29
Browne v. United States, 176 F.3d 25 (2d Cir. 1999),
cert. denied, No. 99-632 6, 11, 17, 21-23
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520 (1993) 13, 26
City of Boerne v. Flores, 521 U.S. 507 (1997) 10, 14
Corning Glass Works v. Brennan, 417 U.S. 188 (1974) 11
Crawford-El v. Britton, 523 U.S. 574 (1998) 16
Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999) 6, 16
Ehlert v. United States, 402 U.S. 99 (1971) 27
Employment Division v. Smith, 494 U.S. 872 (1990) 15, 20, 23-25, 29
Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989)
13, 24
Goldman v. Weinberger, 475 U.S. 503 (1986) 19
Gomez v. Toledo, 446 U.S. 635 (1980) 10, 16
Hamilton v. Board of Regents, 293 U.S. 245 (1934) 13
Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680 (1989) 13, 19
Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) 24
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) 15
O'Lone v. Shabazz, 482 U.S. 342 (1987) 19
Packard v. United States, 7 F.Supp.2d 143 (D.Conn. 1998) 5, 6, 13
Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996) 13
Scher v. United States, 305 U.S. 251 (1938) 11
Sherbert v. Verner, 374 U.S. 398 (1963) 14, 23-25
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) 6, 16
Thomas v. Review Board, 450 U.S. 707 (1981) 13, 24
United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996) 12, 14
United States v. Boyle, 469 U.S. 241 (1985) 27
United States v. Gaubert, 499 U.S. 315 (1991) 6
United States v. Jenkins, 420 U.S. 358 (1975) 28
United States v. Lee, 455 U.S. 252 (1982) 13, 19, 20
Vance v. Terrazas, 444 U.S. 252 (1980) 17
Wisconsin v. Yoder, 406 U.S. 205 (1972) 14
CONSTITUTION, STATUTES AND RULES:
U.S. Const., amend. I
(Free Exercise Clause) 14, 20-24, 26, 30
26 U.S.C. § 1402(g) 20
26 U.S.C. § 3127 20
26 U.S.C. § 6096 18
26 U.S.C. § 6404(g) 5
26 U.S.C. § 6651(a) 8, 9, 23, 24
26 U.S.C. § 6654 9, 23, 25, 28, 29
26 U.S.C. § 7422 9
26 U.S.C. § 9006(a) 18
28 U.S.C. § 1254(1) 1
28 U.S.C. § 1291 9
28 U.S.C. § 1346(a) 9
28 U.S.C. § 2101(c) 1
42 U.S.C. § 2000bb-1 2, 10
42 U.S.C. § 2000bb-2(1) 19
42 U.S.C. § 2000bb-2(3) 10, 15
42 U.S.C. § 2000bb-2(4) 13
42 U.S.C. § 2000bb-3(a) 19
Pub.L. 100-647, § 8007 (Oct. 22, 1988) 20
Religious Freedom Restoration Act,
42 U.S.C. §§ 2000bb, et seq. 4,9-11, 13-15, 19, 30
26 C.F.R. § 1.6161-1(b) 26
26 C.F.R. § 301.6651-1(c) 25
Fed.R.Civ.P. 7(a) 16
Fed.R.Civ.P. 8(c) 11, 15-17
Fed.R.Civ.P. 8(d) 16
Fed.R.Civ.P. 12(b)(1) 5
Fed.R.Civ.P. 12(b)(6) 5-7, 10, 11, 15-18, 21
Fed.R.Civ.P. 12(c) 17
S.Ct. Rule 13.1, 13.3 1
S.Ct. Rule 14.1(i) 9
MISCELLANEOUS:
Alexander M. Bickel, The Morality of Consent (1975) 29
The Holy Bible 8
H.Rep. 103-88, 103d Cong., 1st Sess. (1993) 15, 19
Marjorie E. Kornhauser, For God and Country:
Taxing Conscience, 1999 Wisc. Law Rev. 939 14
John T. Noonan, The Lustre of Our Country:
The American Experience of Religious Freedom
(Univ. Calif. Press 1998) 12
IRS, Internal Revenue Manual 26-27
Religious Freedom Tax Fund Bill,
H.R. 2660, 105th Cong. 14
S.Rep. 103-111, 103d Cong., 1st Sess. (1993) 15, 19
5 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure (1990) 17
PETITION
FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
________FOR THE SECOND CIRCUIT________
ROSA COVINGTON PACKARD respectfully petitions this Court for a writ of
certiorari to review the order of the United States Court of Appeals for the
Second Circuit filed on June 1, 1999, denying her appeal from an order under
Fed.R.Civ.P. 12(b)(6) dismissing her complaint in a tax refund action.
OPINIONS
BELOW
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.
JURISDICTION
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).
TEXT OF
CONSTITUTIONAL PROVISION, FEDERAL STATUTES, RULES OF PROCEDURE,
AND REGULATIONS INVOLVED
The First Amendment to the Constitution of the United States provides, in
pertinent part, "Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof ...."
The Religious Freedom Restoration Act provides in pertinent part:
(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).
(b) Exception. Government may substantially burden a person's exercise
of religion only if it demonstrates that application of the burden to the
person --
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
(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.
§ 2000bb-2. Definitions
As used in this Act--
(1) the term "government" includes a branch, department, agency,
instrumentality, and official (or other person acting under color of law) of
the United States, a State, or a subdivision of a State;
* * *
(3) the term "demonstrates" means meets the burdens of going
forward with the evidence and of persuasion; and
(4) the term "exercise of religion" means the exercise of religion
under the First Amendment to the Constitution.
42 U.S.C. § 2000bb-2.
§ 2000bb-3. Applicability
(a) In general. This Act applies to all Federal and State law, and the
implementation of that law, whether statutory or otherwise, and whether
adopted before or after the enactment of this Act [enacted Nov. 16, 1993].
* * * *
42 U.S.C. § 2000bb-2.
Rule 8 of the Federal Rules of Civil
Procedure provides in pertinent part:
(a) Claims for
Relief.
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 ....
(b) Defenses; Form of Denials. A party shall state in short and plain
terms the party's defenses to each claim asserted, and shall admit or deny
the averments upon which the adverse party relies.
* * *
(c) Affirmative Defenses. In pleading to a preceding pleading, a party
shall set forth affirmatively ... any ... matter constituting an avoidance or
affirmative defense. * * *
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.
STATEMENT
OF THE CASE
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.
a. The Course of Proceedings
On January 26, 1998, the petitioner, Rosa Packard, filed a complaint in the
United States District Court for the District of Connecticut, seeking a
refund of certain penalties imposed on her by the Internal Revenue Service
for late payment of federal income taxes and for failure to make quarterly
estimated payments, for the tax years 1992 and 1993. The United States filed
a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the action for failure to
state a claim on which relief could be granted.1
The district court granted the motion in a written opinion. Packard v.
United States, 7 F.Supp.2d 143 (D.Conn. 1998); Appx. B. On appeal, the
Second Circuit affirmed by unpublished summary order. Appx. A. That Order
does not rely on or adopt the district court's opinion at all. Instead, the
court of appeals found this case "not meaningfully distinguishable"
from two recent appellate cases, one in the Second Circuit and the other in
the Third. Appx. A2, citing Browne v. United States, 176 F.3d 25 (2d
Cir. 1999), cert. denied, No. 99-632 (Jan. 18, 2000), and Adams v.
Comm'r, 170 F.3d 173 (3d Cir. 1999), cert. denied, No. 99-798 (Jan.
18, 2000). Rehearing was denied. Appx. C.
b. Statement of Facts
Because this case was decided on motion under Fed.R.Civ.P. 12(b)(6), this
Statement recites the facts as alleged in the complaint, which must be taken
as true for purpose of these proceedings, as they should have been in the
courts below. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119
S.Ct. 2139, 2143 (1999) (citing United States v. Gaubert, 499 U.S.
315, 327 (1991)); Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 119
S.Ct. 1661, 1666 (1999).2
The total amount of delinquent tax for the two years involved in this case
was about $7950, while the penalties assessed and then seized totaled about
$1465, approximately another 18%. The penalty amounts which petitioner sought
to recover by this refund action had been collected from her by levy, along
with the principal amount of taxes due. The IRS deemed them delinquent,
because in obedience to her Quaker religious conscience, she had refused to
pay them to the IRS voluntarily. Petitioner had filed a timely and accurate
tax return for each year, accompanied by a letter fully explaining her
position.3 Instead of
making payment to the Internal Revenue Service, however, she had placed the
full amounts due in an escrow account managed by her Quarterly Meeting of the
Religious Society of Friends, in trust for the United States, as her letters
disclosed.4 Disregarding
this arrangement, the IRS later collected the taxes by levy, along with
penalties and interest, from petitioner's own bank account. Before suing, she
sought refunds through all available administrative channels on the grounds
pursued here, but these were refused.
The complaint alleged that beginning in 1981, for tax year 1980, petitioner
Packard has been unable to pay federal income taxes on a voluntary basis. She
is prevented from doing so by her deeply-held religious conviction that
Christ's advice to "love your enemies" and to "do good to
those who hate you," Luke 6:27,5
combined with the Ten Commandments admonition not to kill, Exodus 20:13,
forbids her from paying any tax that will be expended in whole or in part for
war or the preparation for war.
Petitioner did not seek a refund of the principal amount of tax collected,
but only of the penalties, averring that her sincere religious principles:
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).
On the basis of these averments, petitioner's complaint set forth two claims
for relief, both statutory: that she was entitled to a refund of the
penalties under the terms of the Internal Revenue Code itself, read in the
light of well-established First Amendment Free Exercise principles, and that
she was entitled to the same relief under the Religious Freedom Restoration
Act, 42 U.S.C. § 2000bb et seq. In the latter connection, the
complaint specifically alleged that the "imposition of penalties
pursuant to 26 U.S.C. § 6651(a)(2) for late payment for taxes, and
pursuant to 26 U.S.C. § 6654 for underpayment of estimated tax, are not
the least restrictive means for the government to further its interest in the
collection of taxes from" her.
c. Statement of Lower Court Jurisdiction Under Rule
14.1(i). The United States District Court for the District of Connecticut
had subject matter jurisdiction of this case under 28 U.S.C.
§ 1346(a)(1) and 26 U.S.C. § 7422(h)(3), in that the complaint sought
a refund of income tax penalties, as authorized by id. § 7422.
Jurisdiction in the court below rested upon 28 U.S.C. § 1291.
REASONS FOR GRANTING THE WRIT
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
discretionary penalties.
The decision of the court below, affirming the district court's Rule 12(b)(6)
dismissal of petitioner's tax refund complaint, conflicts with the burden of
proof imposed on the government under the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb et seq., as construed by this Court in City
of Boerne v. Flores, 521 U.S. 507, 534 (1997). It also conflicts with
this Court's decision in Gomez v. Toledo, 446 U.S. 635 (1980), which
holds that when a statute allocates the burden of proof on a fact-laden issue
to the defendant, making the point an affirmative defense, a complaint may
not be dismissed under Fed.R.Civ.P. 12(b)(6) on the basis of that defense.
RFRA imposes a general ban on governmental burdening of religious exercise
(42 U.S.C. § 2000bb-1(a); Statutes Involved, at 2 ante) but
defines an "exception" under which a federal agency may "demonstrate"
(with "evidence," id. § 2000bb-2(3)) that any infringement
on religious exercise constitutes the "least restrictive means" of
furthering a "compelling governmental interest." Id.
§ 2000bb-1(b). This "exception" is plainly in the nature of an
affirmative defense, consistent with the general rule for construction of
federal statutes.7 Yet the
government never satisfied its resulting burden of pleading under
Fed.R.Civ.P. 8(c), much less its statutory burden of proof. This petition for
certiorari should be granted in order to clarify that the IRS is not entitled
to any special exemption either from the Rules of Civil Procedure or from
generally-applicable laws of the United States.
In defiance of the Congressional mandate, the court below followed the
opinion of another circuit (reviewing a decision after trial) which brushed
off the statutory command that respondent "demonstrate" compliance
with the governing legal standard as a merely "rhetorical
question." Appx. A2, following Adams v. Comm'r, 170 F.3d 173, 179
(3d Cir. 1999). It likewise followed its own published precedent (reviewing a
judgment on the pleadings) which denied a similar RFRA claim without any
reference to the statutory language at all. See Browne v. United States,
176 F.3d 25, 26 (2d Cir. 1999), followed at Appx. A2. Neither of those
precedents could have determined the proper disposition of a Rule 12(b)(6)
case, even if they had not both misapplied RFRA.
Judge Noonan has aptly summarized some of RFRA's salient points:
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.
Petitioner has not disputed the established principle that the government has
a compelling interest in collecting taxes. See United States v. Lee,
455 U.S. 252, 260 (1982); Hernandez v. Comm'r of Internal Revenue, 490
U.S. 680, 699-700 (1989); cf. Hamilton v. Board of Regents, 293
U.S. 245, 266 (1934) (Cardozo, Brandeis & Stone, JJ., concurring). The
issue here is the government's avoidance of its duty to
"demonstrate," that is, to prove by evidence, that it has employed
the means of accomplishing that objective which are least restrictive of
petitioner's religious liberty. While penalizing sincere religious objectors
like petitioner may theoretically further the governmental interest in tax
collection,10 the
respondent -- by definition on its motion to dismiss -- did not prove that
adding civil penalties to the amount of tax which is forcibly collected
following petitioner's refusal of voluntary compliance is the least
restrictive means of furthering its legitimate interest.
The Act calls upon federal courts and agencies to apply "the compelling
interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)
and Wisconsin v. Yoder, 406 U.S. 205 (1972) ...." 42 U.S.C.
§ 2000bb(b)(1). The Sherbert and Yoder decisions, which
RFRA particularly endorses and "incorporat[es]" (Bauer, 84
F.3d at 1558), are among this Court's most sympathetic decisions toward Free
Exercise claims. It cannot be accidental that Congress chose those decisions
to mention in the RFRA statement of purpose. "Requiring a State to
demonstrate a compelling interest and show that it has adopted the least
restrictive means of achieving that interest is the most demanding test known
to constitutional law." City of Boerne v. Flores, 521 U.S. 507,
534 (1997).
Under RFRA, a court cannot simply follow indiscriminately the holdings of any
case decided before 1990 that rejected any sort of religious objection to any
part of the federal tax system. The legislative history of the Act specifies
that RFRA neither "approves nor disapproves of the result in any
particular court decision involving the free exercise of religion."
H.Rep. 103-88, 103d Cong., 1st Sess. 7 (1993); accord, S.Rep. 103-111,
103d Cong., 1st Sess. 9 (1993). Yet the court below followed a ruling that
constitutional case law, decided under a different legal standard prior to
RFRA's enactment, "dictated" its ruling. Adams, 170 F.3d at
180, adopted at Appx. A2. What a statute means and requires is what the
statute says; when the courts apply a statute, they must do so according to
its terms. See, e.g., Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 142 L.Ed.2d 881, 119 S.Ct. 755, 760 (1999). That meaning is not set forth
either in committee reports or in an amorphous body of "pre-Smith
case law." Appx. A2, adopting 170 F.3d at 179 (referring to Employment
Division v. Smith, 494 U.S. 872 (1990)).
The Adams panel's holding, summarily adopted by the court below,
"that appellee was not required to produce evidence under the 'least
restrictive means' prong of RFRA in order to prevail," id. at
180, is directly contrary to the statutory language. 42 U.S.C.
§§ 2000bb-1(b), 2000bb-2(3); Statutes Involved, ante at 3.
In the context of the instant case, it thus violates Rule 8(c) and
constitutes an abuse of the Rule 12(b)(6) procedure.
By defining the term "demonstrates" in RFRA to mean "meets the
burden of going forward with the evidence and of persuasion," 42
U.S.C. § 2000bb-2(3) (emphasis added), Congress legislated against courts'
accepting mere argument in lieu of proof of government claims of inability to
accommodate religious objections to compliance with generally applicable
legal obligations. Yet in support of a motion to dismiss under Rule 12(b)(6),
argument is all the respondent could offer. The lower courts were bound to
accept as true all the well-pleaded averments of the complaint. Sutton v.
United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2143 (1999); Davis
v. Monroe County Bd. of Ed., 526 U.S. 629, 119 S.Ct. 1661, 1666 (1999).
Petitioner's complaint pleaded that the imposition of civil tax penalties
substantially burdened her exercise of religion. Under RFRA, this alone was
enough to avoid dismissal under Rule 12(b)(6). Gomez v. Toledo, 446
U.S. 635, 640 (1980).
For procedural reasons at least, RFRA's statutory structure dictated a result
contrary to that reached below. In the procedural posture for disposition of
the case that it sought, a Rule 12(b)(6) motion, respondent should not have
been allowed to advance its affirmative defense of inability to achieve its
compelling interest in tax collection through any less restrictive means.
Only if the defendant pleads under Rule 8(c) that it has a compelling governmental
interest and that it cannot fulfill that interest by any means less
restrictive of the plaintiff's religious liberty than the one complained of
is the "least restrictive means" issue placed before the court.
Under the Rules, no response to an affirmative defense is required; that
governmental claim is deemed automatically denied. Fed.R.Civ.P. 8(d).11 The case must
proceed to trial, or at least to summary judgment.
That petitioner anticipated this defense, by pleading her willingness to
accept any of a number of reasonable accommodations, did not remove
respondent's obligation to plead its position under Rule 8(c). Vance v.
Terrazas, 444 U.S. 252, 269 n.11 (1980). Courts have a responsibility to
apply RFRA's statutory "least restrictive means" test in a
meaningful way, and the Rules of Civil Procedure must not be ignored so as to
excuse the government from bringing forth evidence, at least, that the
various less restrictive means suggested by petitioner Packard herself are
not feasible. See Leatherman v. Tarrant County Narcotics Intell. &
Coord. Unit, 507 U.S. 163 (1993) (federal civil procedure pleading rules
allow no exception for civil rights cases).
The courts below failed in their duty to enforce the plain language of the
statute and rules when they upheld the respondent's mere assertion that
so-called "voluntary compliance" -- an oxymoron in the case of a
religious objector -- constitutes the "least restrictive means" of
accomplishing its compelling objective of tax collection. Appx. A2, adopting Browne,
176 F.3d at 26. Indeed, "voluntary compliance" is not even an
option for obtaining petitioner's taxes; in the exercise of her religious
beliefs, she cannot pay voluntarily.12
The issue the government tried impermissibly to raise under Rule 12(b)(6) in
this case, which the courts below could not address under RFRA in the posture
of a dismissal motion, is whether forcible collection with added penalties is
the means of accomplishing the government's objective -- timely collection of
the principal tax amount -- which is "least restrictive" of
petitioner's religious liberty.13 Indeed, this
cannot be so, since the IRS could set out to collect the overdue tax
by levy (as it eventually always does) while exercising its statutory
discretion to waive the civil penalties.14 Compulsory
collection without added financial penalties is necessarily less restrictive
of petitioner's free exercise than collection of a larger amount.
If the legislative history of RFRA proves anything, it is that no government
agency is outside the obligation to comply with RFRA. The committee reports,
House and Senate, expressly discuss the application of RFRA to the military,
for example, as well as to prisons. H.Rep. 103-88, 103d Cong., 1st Sess. 8
(1993); S.Rep. 103-111, 103d Cong., 1st Sess. 9-12 (1993). Maintaining the
national defense, according to the policies of Congress and the
Administration, has always been considered a "governmental
interest" of the most "compelling" kind; so has prison
administration, to an only slightly lesser degree. These considerations had
led this Court to require judicial deference and a lesser standard when
religious rights were infringed in these contexts. See H.Rep. 103-88,
at 7-8, discussing Goldman v. Weinberger, 475 U.S. 503 (1986), and O'Lone
v. Shabazz, 482 U.S. 342 (1987).
Yet the legislative history confirms what the plain language states, that
RFRA applies to all federal agencies, whether they be military
branches or the IRS. 42 U.S.C. §§ 2000bb-2(1) (definition of
"government"), 2000bb-3(a) (applicability to all agencies and
departments). The Internal Revenue Code is thus not the only statute that the
IRS must obey; RFRA is another and is equally binding. The Court's previous
view that the devising of exceptions in tax matters is exclusively a
legislative function (see Hernandez v. Comm'r, 490 U.S. at 700), must
give way to the directive of Congress itself in RFRA where the conflict is
genuinely religious.
This Court's conclusion in United States v. Lee that "the tax
system could not function if denominations were allowed to challenge the tax
system because tax payments were spent in a manner that violates the
religious belief," 455 U.S. at 260, is not controlling. RFRA places the
burden on the government to "demonstrate" that it has no way to
satisfy its compelling interest without "substantially burdening"
the exercise of an individual's religious beliefs. The example in Lee
itself is quite apt.
The Court held in Lee that the Free Exercise Clause did not give the
Amish farmer and carpenter employees involved in that case, who were outside
the protection of IRC § 1402(g), a right not to participate in the Social
Security system. Justice Department lawyers argued, and this Court accepted
in that 1982 case, that no further exemption for the Amish than then existed
could be allowed without risking the fiscal soundness of Social Security. But
this proved false in fact. In the 1988 Tax Bill, Congress enacted the precise
additional exemption that the Lee Court had held unnecessary, or even
impossible. Pub.L. 100-647, § 8007 (Oct. 22, 1988), adding new 26 U.S.C. §
3127. This tale illustrates the difference between the standard under the
Free Exercise Clause (even as sometimes construed before Smith) and
that under RFRA. Congress legislated in RFRA against courts' accepting mere
argument in lieu of proof of government claims of inability to accommodate.
In accepting the respondent's RFRA-defeating approach, the courts below
rendered a decision in conflict with the statutory mandate. Petitioner's case
well illustrates how the same religion-based claim can give rise to both a
First Amendment Free Exercise argument, as described under Point 2 below, and
a statutory RFRA argument. Contrary to the approach taken summarily by the
court below, these two types of claims call for distinct lines of analysis
and impose different burdens on the parties. Certiorari should be granted to
enforce the Federal Rules of Civil Procedure in the context of RFRA's
statutory language and to uphold the Congressional policy that federal
government agencies meet a burden of proof under the "least restrictive
means" test before unnecessarily burdening the exercise of sincere religious
convictions.
2. The lower courts allowed an application of the Internal Revenue Code's
penalty provisions which violates this Court's binding precedent under the
Free Exercise Clause, when they permitted the IRS to discriminate against
religious reasons, as compared with all other equivalent impediments to
individual compliance with a generally applicable law.
Even if the Religious Freedom Restoration Act did not, for whatever reason,
bar a Rule 12(b)(6) dismissal in this case, the court below also ignored this
Court's cases construing the Free Exercise Clause of the First Amendment when
it upheld the rejection of petitioner Packard's district court refund action.
Seeking an even-handed application of the statutory penalty waiver
provisions, petitioner relied on the Internal Revenue Code and regulations
themselves, read in the light of constitutional doctrine. This Court should
grant certiorari to clarify the application of the Free Exercise
equal-treatment doctrine in the present context.
Rather than address the constitutional issue, the court of appeals relied on
its prior decision in Browne, 176 F.3d at 26, and that of the Third
Circuit in Adams, 170 F.3d at 180-82, and summarily affirmed the
district court's dismissal. The circuit precedent which the court below
followed both misstates the nature of petitioner's religious objection and
conflicts with settled doctrine. In that prior case, the court held:
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.
The decision of the court below also missed the mark in its Free Exercise
rationale. In Adams, the Third Circuit relied on a "body of case
law related to war tax protesters," 170 F.3d at 181, referring to cases
cited id. at 178, none of which involved equal-treatment challenges to
the refusal to waive or abate penalties. Even if petitioner had no legal
"excuse," id., for refusing to pay without accommodation (as
those cases all held, for various reasons), that says nothing about waiver of
these waivable civil penalties.
The court below failed to follow this Court's cases interpreting the Free
Exercise Clause of the First Amendment when it affirmed the district court's
dismissal of the petitioner's complaint as having failed to state a claim on
which relief could be granted, even though she alleged that the IRS failed to
give equal consideration to her religious convictions as it gives to other
individual circumstances that prevent compliance with federal income tax
obligations.
Congress allows the penalty for late payment of tax to be waived, in the
discretion of the Commissioner, where there is "reasonable cause."
26 U.S.C. (IRC) § 6651(a)(1). Likewise, the penalty for failure to make
quarterly estimated payments is waivable when the omission was due to an
"unusual circumstance" which makes it "against equity and good
conscience" to impose that penalty. Id. § 6654(e)(3)(A). The
Third Circuit case relied on by the court below held that because the
regulations in question were "uniform and facially neutral," Adams,
170 F.3d at 181 n.10, they did not allow the sort of "individual
exemption" discussed in Employment Division v. Smith, 494 U.S.
872, 884 (1990) (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986)
(plurality), explaining Sherbert v. Verner, 374 U.S. 398 (1963)). Browne,
the "controlling" Second Circuit case, Appx. A2, did not even
address this issue, citing instead a different point from Smith,
rejecting an argument that petitioner never advanced. This Court should grant
a writ of certiorari to correct the lower courts' serious misunderstanding of
precedent and deviation from an important aspect of First Amendment Free
Exercise doctrine.
In Sherbert v. Verner, a Seventh Day Adventist had been denied
unemployment insurance benefits, because she refused to work on Saturdays,
her sabbath. The South Carolina law under which she was refused provided
that:
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."
In Smith, the Court determined that it would no longer adhere to that
formulation as a general statement of Free Exercise principle. 494 U.S. at
878-79. The Court affirmed, however, a different rationale for the judgment
in Sherbert and the cases which follow it15:
[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
granted.
The civil penalty provisions involved in this case provide that no penalty
shall be imposed for late payment if such lateness is "due to reasonable
cause and not due to willful neglect," IRC §§ 6651(a)(1), and that
no estimated tax penalty shall be imposed if the Secretary determines that
"by reason of ... unusual circumstances the imposition of such addition
to tax would be against equity and good conscience." IRC
§ 6654(e)(3)(A). As with the unemployment insurance standard discussed
in Sherbert, even though these Tax Code provisions are "generally
applicable, [and] religion-neutral," Smith, 494 U.S. at 886, they
create a "system of individual exemptions." Roy, 476 U.S. at
708. Respondent may "not refuse to extend that system to cases of
'religious hardship' without compelling reason." Id. By choosing
to respond to this case by moving to dismiss, respondent necessarily failed
to demonstrate any such reason.
Indeed, under the terms of the implementing regulation, waiver of this
penalty was mandatory in petitioner's case, unless discrimination against
religious reasons is authorized: "A taxpayer will be considered
to have exercised ordinary business care and prudence if [s]he made
reasonable efforts to conserve sufficient assets in marketable form to
satisfy h[er] tax liability and nevertheless was unable to pay ... the tax
when it became due." Treas.Reg. (26 C.F.R.) § 301.6651-1(c)(1) (emphasis
added); Appx. D6. Petitioner's consistent practice of depositing the full
amount of tax shown on her return in the Quaker escrow account, which she fully
disclosed to the IRS, thus demonstrates "ordinary business care and
prudence" in just the way that the regulation views that concept.
Accepting the averments of her complaint as true, the petitioner also stated
a claim for a "reasonable cause" waiver of the late payment penalty
on the alternate basis of "undue hardship." Treas. Reg. §
301.6651-1(c)(1) ("failure to pay will be considered to be due to
reasonable cause to the extent that the taxpayer has made a satisfactory
showing that he ... would suffer an undue hardship (as described in
§ 1.6161-1(b) of this chapter) if he paid on the due date."); Appx.
D5. As explained in Treas.Reg. § 1.6161-1(b), "'undue hardship'
means more than an inconvenience"; rather, the hardship must be at least
equivalent to a "substantial financial loss, for example ...."
Appx. D3. Being forced by the government to abandon the exercise of one's
religion easily meets any objective standard of "undue hardship."
Only the respondent's improper refusal to consider religious reasons on an
equal footing with other personal reasons could support the IRS refusal to
waive these penalties in petitioner's case. See Treas. Reg.
§ 601.106(b) ("the 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"); accord, Int.Rev.Man. 8.1.2.2.5; Appx. D7, D10.
Whatever the legitimacy of the IRS's predetermined refusal to consider
"moral, ... political, constitutional, conscientious, or similar
grounds" for noncompliance which are not "religious,"
the Free Exercise Clause invalidates its categorical exclusion of that
specially protected category from at least equal consideration. Bowen v.
Roy, 476 U.S. at 708. See also Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 542-43 (1993).
The respondent's own Internal Revenue Manual ("IRM"), designed to
guide IRS agents in making these determinations, emphasizes the general
flexibility of the regulatory standard in all other cases. See IRM
1218, Policy Statement P-2-7; IRM 120.1.1.3.1(1),(3)1,(5); IRM
120.1.1.3.1.1(1); IRM 120.1.1.3.1.2(1); IRM 120.1.2.1.3(2)1. These portions
of the IRM are reproduced in Appendix D8-D12. The Manual lists several
situations in which penalties are not to be asserted or should be abated,
even though a taxpayer has consciously decided not to pay tax.
For example, hardship imposed by the death of a family member is recognized
as reason enough not to impose a penalty for late payment. Policy Smt. P-2-7,
example (1); accord, IRM 120.1.1.3.1.2.4. This example is not based on
any sort of physical impossibility. A taxpayer whose father dies and who does
not pay on time so that she may attend the funeral, or because she is too
distraught, has made a conscious decision, although under pressing
circumstances, that attending to funeral-related concerns is more important
than timely payment of tax.
In this case, the petitioner's complaint properly alleged that her
"religious beliefs ... prevent her from voluntarily paying a tax, any
part of which is expended for war or the preparation for war." CA2 App.
11a, 15a. As construed by this Court, the "principle underlying the IRS
regulations and practices" under the "reasonable cause"
standard is "that a taxpayer should not be penalized for circumstances
beyond his [or her] control ...." United States v. Boyle, 469
U.S. 241, 248 n.6 (1985). Unless action compelled by religious convictions is
categorically excluded from this waiver provision, the district court's
dismissal of petitioner's complaint for failure to state a claim on which
relief could be granted, affirmed by the court of appeals, was erroneous,
because petitioner was without fault in her late payment.16
The Internal Revenue Code also provides discretionary authority to waive the
civil penalty for failure to pay estimated tax. That section provides that
"No addition to tax shall be imposed ... to the extent the Secretary
determines that by reason of ... unusual circumstances the imposition of such
addition to tax would be against equity and good conscience." 26 U.S.C.
§ 6654(e)(3). Petitioner's religious beliefs, coupled with the
requirement of her Quaker religion that she act in accordance with that
leading, are all too "unusual," as they have always been since the
founding of the Religious Society of Friends in 1650. The American tradition
of tolerance and respect for religious conscience surely makes it
"against equity and good conscience" to penalize her for adhering
to those beliefs and acting accordingly in relation to her income tax
obligations. By affirming the district court's dismissal of petitioner's
complaint, the court of appeals improperly relieved the respondent from its
constitutional duty under the rationale of the Roy plurality, as
endorsed by the majority in Smith.
The court below missed a truly fundamental point in following the Third
Circuit decision which refers to "civil disobedience" as
constituting only a "slightly different context" from religious
convictions that prevent compliance with a legal obligation of general
applicability. See Appx. A2, approving Adams, 170 F.3d at 182.
It is not a form of "civil disobedience" to request a fair
application of the exemptions from penalty that Congress has enacted.17 Laws which
interfere, in particular cases, with religious exercise cannot be casually
brushed off by reference to "sincerely felt political and religious
beliefs" which may require "facing the consequences." Id.
One of those "consequences," under the Constitution and laws of the
United States, cannot be the refusal of government agencies to apply
discretionary penalty waivers that are triggered by a showing of
"reasonable cause."
Whether resolved by a holding under a straightforward construction of the
Internal Revenue Code that religious inability to comply is itself a
"reasonable cause" to refrain from adding penalties to a tax
delinquency,18 or by holding
that the addition of penalties is itself unnecessarily restrictive of
religious liberty under RFRA, or by applying a First Amendment equal
treatment principle, the district court's decision that the petitioner failed
to state a claim on which relief could be granted should have been reversed.
A writ of certiorari should be granted to correct the lower courts' departure
from this Court's settled precedent under the Free Exercise Clause.
CONCLUSION
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.
Respectfully submitted,
PETER GOLDBERGER
Counsel of Record
JAMES H. FELDMAN, JR.
50 Rittenhouse Place
Ardmore, PA 19003-2276
(610) 649-8200
Attorneys for Petitioner
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.
2 Where the
district court failed to adhere to this rule in its decision, those errors
are footnoted in this Statement or discussed in the Reasons which follow.
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:
· Tax money placed in the Fund would be voluntarily surrendered to the United
States government whenever, but only if, that money could be placed in an
account that supported only non-military spending, or if it could be
earmarked and directed to accounts assigned to the support of non-military
expenditures.
· Ms. Packard received no financial benefit from money she deposited in the
Fund.
· Interest income generated from money deposited in the Fund is used by the
Meeting "for life-affirming activities which may remove the occasion for
war."
· Any money Ms. Packard deposited in the fund could be returned to her only
to replace money the government subsequently seized from her to cover taxes
it claimed she owed. (CA2 App. 7a)
5 Some
translations have "persecute" rather than "hate."
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).
14 The issue of
adding interest at the ordinary rate, while challenged in the district court,
was not pursued on appeal, and is no longer presented by this case.
15 See Frazee
v. Illinois Dept. of Employ. Sec., 489 U.S. 829 (1989); Hobbie v.
Unemployment App. Comm'n, 480 U.S. 136 (1987); Thomas v. Review Bd.,
450 U.S. 707 (1981).
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).
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