Opinion
No. 79-2298. Summary Calendar.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.
December 19, 1979.
Butler, Boltz Vickers, Paul A. Butler, Houston, Tex., for petitioner-appellant.
M. Carr Ferguson, Asst. Atty. Gen., James F. Miller, Gilbert E. Andrews, Act. Chief, Appellate Section, Grant W. Wiprud, Tax Division, U.S. Dept. of Justice, Lester Stein, Acting Chief Counsel, IRS, Washington, D.C., for defendant-appellee.
Appeal from the Decision of The United States Tax Court.
Before BROWN, KRAVITCH and FRANK M. JOHNSON, JR., Circuit Judges.
Appellant taxpayer was self-employed as a salesman for Lubrication Engineer, Inc., during the years 1973 through 1976. He paid no self-employment tax during those years. Instead, he filed a Form 4029 Application for Exemption from Tax on Self-Employment and Waiver of Benefits. This exemption is available under the Internal Revenue Code Section 1402(h) (currently codified and referred to as Section 1402(g)). This exemption is available to members of recognized religious sects which include in their beliefs the conscientious objection to public or private insurance and which make reasonable provisions for their dependent members. In his application, Taxpayer did not certify that he was a member of any such religious sect, but did state he was a member of a group "conscientiously opposed to payments to social security."
(g) Members of certain religious faiths. —
(1) Exemption.
(A) such evidence of such individual's membership in, and adherence to the tenets or teachings of, the sect or division thereof as the Secretary may require for purposes of determining such individual's compliance with the preceding sentence, and
(B) his waiver of all benefits and other payments under titles II and XVIII of the Social Security Act on the basis of his wages and self-employment income as well as all such benefits and other payments to him on the basis of the wages and self-employment income of any other person,
(C) such sect or division thereof has the established tenets or teachings referred to in the preceding sentence,
(D) it is the practice, and has been for a period of time which he deems to be substantial, for members of such sect or division thereof to make provision for their dependent members which in his judgment is reasonable in view of their general level of living, and
(E) such sect or division thereof has been in existence at all times since December 31, 1950.
(2) Time for filing applications.
(3) Period for which exemption effective.
(A) beginning (i) before the taxable year in which such individual first met the requirements of the first sentence of paragraph (1), or (ii) before the time as of which the Secretary of Health, Education, and Welfare finds that the sect or division thereof of which such individual is a member met the requirements of subparagraphs (C) and (D), or
(B) ending (i) after the time such individual ceases to meet the requirements of the first sentence of paragraph (1), or (ii) after the time as of which the Secretary of Health, Education, and Welfare finds that the sect or division thereof of which he is a member ceases to meet the requirements of subparagraph (C) or (D).(4) Application by fiduciaries or survivors.
The Internal Revenue Service denied Taxpayer's application for exemption by letter dated June 27, 1977, on the grounds that "he had not established that he qualified as a duly ordained minister or as a member of a qualified religious faith under Sections 1402(e) and (g) of the Internal Revenue Code * * *." The Government's position was affirmed in a memorandum decision by the Tax Court.
(e) Ministers, members of religious orders, and Christian Science practitioners. —
(1) Exemption.
(2) Time for filing application.
(3) Effective date of exemption.
T.C.M. 1979-39, Docket No. 9280-77.
There is no question that Taxpayer is not in compliance with the language of § 1402(g). Thus, the only issues on appeal are whether this section of the Internal Revenue Code violates the First and Fourteenth Amendments, as the appellant urges. We do not believe Taxpayer's Constitutional objections are well founded, and we affirm the decision of the Tax Court.
The First Amendment Issue
The Taxpayer first argues that § 1402(g) violates the Establishment and Free Exercise Clauses of the First Amendment. We do not reach this issue because we hold that the Taxpayer does not have standing to assert this claim. The Taxpayer states that he seeks to have this exemption declared unconstitutional. But if we so held, the exemption would be entirely void. The relief the Taxpayer really seeks, to be included within the exemption, would not be ours to grant. Only Congress could amend the statute to include the Taxpayer's situation. In short, the Taxpayer has not shown that he has suffered an injury which is likely to be redressed by a favorable decision. Simon v. Eastern Kentucky Welfare Rights Organization, 1976, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450.
The Eighth Circuit, unlike this Court, did not express a concern for the lack of standing, but upheld § 1402(g) in a similar fact situation in Jaggard v. Commissioner, 1978, 582 F.2d 1189. In doing so, the Eighth Circuit relied on two Tax Court cases of the same holding, Henson v. Commissioner, 1976, 66 T.C. 835, and Palmer v. Commissioner, 1969, 52 T.C. 310. The Eighth Circuit also found a secular legislative purpose for § 1402(g):
It represents a congressional attempt to accommodate sincerely held religious beliefs against private and public insurance programs consistent with the overall welfare purpose of the Social Security Act. Congress could reasonably conclude that individuals on their own could not be relied upon to provide for themselves in the event of dependency, but that members of a religious sect who share these views would provide for dependent members.
582 F.2d at 1190.
The Equal Protection Issue
Taxpayer next contends § 1402(g) violates the Equal Protection Clause of the Fourteenth Amendment because it denies him the same exemption as members of recognized religious sects who conscientiously object to Social Security. Of course, the Fourteenth Amendment applies only to state, and not to federal, action. Jewell v. City of Covington, 5 Cir. 1970, 425 F.2d 459, cert. denied, 1970, 400 U.S. 929, 91 S.Ct. 195, 27 L.Ed.2d 189. However, the Due Process Clause of the Fifth Amendment does provide protection against federal discriminatory action "so unjustifiable as to be violative of due process." Bolling v. Sharpe, 1953, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884, 886. See also Shapiro v. Thompson, 1969, 394 U.S. 618, 642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600, 619; Schneider v. Rusk, 1964, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218, 222. More recently, the Due Process Clause of the Fifth Amendment has been held to actually incorporate the Equal Protection Clause of the Fourteenth Amendment. United States v. Falk, 7 Cir. 1973, 479 F.2d 616, 618; United States v. Thoresen, 9 Cir. 1970, 428 F.2d 654, 658.
Yet § 1402(g) does not arbitrarily discriminate against Taxpayer. "Neither due process nor equal protection imposes * * * any rigid rule of equality of taxation." Carmichael v. Southern Coal and Coke Co., 1936, 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245, 1253. The singling out of one class for tax exemption is justifiable in light of the Congressional purpose of accommodating the religious beliefs of those people whom they felt sure had firmly based religious convictions. H.Rep. No. 213, 89th Cong. 1st Sess. 101 (1965 — 2 Cum. Bull. 739-740).
AFFIRMED.