Private and Confidential . . . For the
Information for Ministers: http://www.lifespirit.org/lccminroster.html
The Special Legal
Status of Churches, Ministries and
Church Related Expressive Association under United States Law
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." Article 18 - Universal Declaration of Human Rights
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment to the Constitution of 1787
This paper is published for the ministers and communicants of the LifeSpirit Congregational Church. The LCC, founded in 1974, is a recognized non-governmental organization that includes several local congregations active in ministerial healing modalities and alternative life style Expressive Association.
Individuals’ Expressive Association
significant legal protection in all civilized countries. In the
The First Amendment's Religious Freedom is bolstered by that Amendment's equally strong admonitions regarding Freedom of Speech and Freedom of Association; freedoms necessary to the work of churches and their ministries. Thus these nongovernmental entities enjoy significant legal prerogatives.
Federal Statutory Provisions
The private association / nonprofit exclusion of FTC jurisdiction can apply to churches. The Religious Freedom Restoration Act also applies; more about that later. There are also several important sections of the IRS Code dealing with ministers and members of orders, and also a few which deal directly with church organization.
These sections are:
First, Section 501(c)(3), which deals with any organization that engages in religious, charitable, educational, literary and scientific research activities. Any organization exclusively organized and operated for these purposes can be tax exempt.
The second clause is Section 508, which tells us that the above mentioned organizations must first apply to the Commissioner for recognition of their status (which relates back 15 months when granted). There is an exception (the statute says "mandatory" exception), and it applies to "churches, their integrated auxiliaries", and associations of churches. This means that such bodies are automatically exempt without seeking government recognition.
The third is Section 170, which says that contributions to church and associations of churches are deductible (up to 50% of an individual's gross income or 5% of a corporation's taxable income).
The fourth and last clause is Section 509, which deals with private foundations as distinguished from churches.
We can conclude then, that a church is automatically exempt, without need to apply to the Commissioner, if it is operated for religious, charitable, scientific research, educational and literary purposes, and its organizational documents include the language required under the statute, that (1) the church carry-on no activities which are not permitted to be carried on by exempt bodies, or by bodies to which donations are deductable, (2) no substantial part of the activities be carrying on of political activities, (3) in the event of dissolution, the remaining assets be distributed to other exempt bodies, and (4) that no part of the income inure to private benefit, except for reasonable compensation for services to or for the church.
Words such as "church" and "integrated auxiliary" have not been clearly defined. Section 7(i) of Regulation 1.501-1(b) however, gives us:
"Churches, interchurch organizations of local units of a church, conventions, or associations of churches, or integrated auxiliaries of a church, such as a men's or women's organization, religious school, mission society or youth group..."
It thus appears that an "integrated auxiliary" is a religious entity which carries on the activities of a church. These entities are not independent local churches, but are semi-autonomous bodies within a church, carrying on “church related” activities. Examples include prayer, study and youth groups, charity committees, thrift shops, missions, and any services or products provided for use in Expressive Association activities. Any church may establish such bodies which may carry on the various exempt activities of the church, including alternative holistic modalities and church-related (that is, Expressive Association related) business activities.
Church-Related Business Activities
Churches are not nonprofit entities, although they may sponsor such activities. Churches may carry on ordinarily non-exempt "business" activities. If these "business" activities are church-related (such as publication of religious books and periodicals) they are also exempt from federal income taxes. Additionally, certain types of "passive" income of churches are also exempt (this category includes dividends, interest, royalties and capital gains -- thus permitting Churches to accumulate a Patrimony through donation and passive investment). Even income from Church owned real estate can be tax-exempt, to the extent that the property is not debt financed.
The Law favors passive income for exempt organizations, as the above list of exempt sources indicates. Thus, the primary strategy for asset management for charitable purposes is to seek passive income sources for the religious organization, while also being aware that related or business activities, though not passive like dividends, interest royalties and capital gains, are also exempt. The Government tells us that such related business activities must contribute substantially to the exempt purposes of the exempt organization. Activities primarily for member's benefits, or carried on by volunteers are also usually exempt.
Church Funds and Expenditures
The various sources and uses of funds for church and ministry activities can be summarized as:
1. Exempt Donations or Exempt Passive Income
Gifts: Donations, Gifts, Grants
Passive Income: Dividends, Interest, Royalties & Capital Gains
2. Active Income (sometimes exempt)
Income from debt-financed property - Exempt to the extent not indebted
Income from unencumbered realty - Exempt
Funds from church-related business activities - Exempt
Unrelated business income - Not usually Exempt
Work performed by Minister or Religious on behalf of Church - Usually exempt
1. Religious Activities (Not taxable to minister or church)
Examples: costs of religious services and observances (including group meals), flowers, candles, incense for altars, religious statuary and images, etc.
2. Charitable Activities (Not taxable to minister or church)
Examples: donating funds or things to needy persons or to charities
3. Educational & Research Activities (Not taxable to minister or church)
Examples: costs of educational programs, minister’s continuing education, church library, research equipment, educational trips, equipment, materials, expenses, operation of church auxiliaries and affiliated organizations (sponsoring education, wellness programs and the like)
4. Minister’s Professional Expenses (Not taxable to minister or church)
Examples: office expenses, ministerial travel & professional entertainment
5. Parsonage Allowance (Not taxable to minister or church)
Examples: rent, utilities, maintenance and enhancements to parsonage
6. Minister’s Stipend
(May be taxable to minister if exceeds minimum to file; not taxable to church)
7. Church Administrative Activities & Expenses (Not taxable to minister or church)
Examples: church office location, equipment, utilities; insurance for church; the managing of church and retirement funds.
Ministers & Members of Orders; Parsonage Allowance
Individual Ministers and members of religious orders have special tax law provisions which apply to them. Insofar as religious workers receive secular income, it will be reportable and taxable as any other person's income. Church related income, however, is treated differently.
First, such income is exempt from withholding under Section 3401(A)(9), so that any tax is paid quarterly instead of being "withheld at the source".
Second, the income is exempt from the Social Security Tax, Section 3306(c)(8), if the proper form is filed (No. 4361 for Ministers, 4029 for members of religious orders). Many churches provide retirement funds or annuities for their ministers and members of religious orders.
Third, a Minister's Parsonage Allowance, under Section 107, is "excluded from gross income" and is not taxed or reportable as income (this includes rental or mortgage and realty tax costs, repairs, utilities and other expenses necessary to provide a parsonage). The Law permits the payment of these expenses directly by the Church or by donors or even the Minister.
Regulation 1.107.1 provides that the Parsonage Allowance includes expenses which are directly related to providing a home (including maintenance, repairs and enhancements) except expenses for food and servants. In the case of a home owned by the church or minister, the expenses may also include real estate taxes and mortgage payments. The Parsonage Allowance does not include the Minister’s Professional Expenses (which are paid or reimbursed separately from the Allowance) nor any personal Stipend, Reimbursement, Gratuity or Gift received by the Minister.
Fourth, as noted above, all of a Minister's Professional Expenses (office, educational, ministerial travel, entertainment, etc.) may be paid as an ordinary business expense of the Church.
Whether a Minister's activities are in furtherance of his or her ministry depends on the details or the Minister's ordination and any letters of direction issued by his ecclesiastical supervisors. Ordinarily, the conducting of sacerdotal functions and church administrative affairs are always considered in furtherance of the exempt purposes. Educational work is not automatically included, and should thus be specifically set forth in the ordination, as should the carrying on of a healing ministry. Sacerdotal functions include religious rituals, marriages and the like. The management of assets for charitable purposes would come under the heading of church administration.
Members of certain churches may also be exempt
Social Security system on conscientious grounds. The law (26 USC 1402)
exemptions where the church (1) is conscientiously opposed to Social
(2) provides an alternative approved by the Secretary, and (3) has been
continuous existence since 1950. This last provision seems to be
to the equality which all churches are assured by the Constitution.
provision, discriminating against certain churches based on the date of
founding, is one of the remaining blots on the
Special provisions also apply to exempt hospitals, including Church clinics, and determine where their activities are exempt "related business" income, and where they are not. A trade or business which is regularly carried on, but which contributes importantly to the exempt purposes of the organization, will be exempt. Some examples from IRS Publication 598 can clarify these matters. For example, where an exempt hospital leases its adjacent office building to a hospital based medical group for a fee, and the medical group provides all diagnostic and therapeutic procedures to the hospitals patients, and operates its ER on a 24 hour basis, the leasing activity is not an unrelated business. In another example involving an exempt hospital, the gift shop, cafeteria and parking lot income were held to be exempt. A halfway house has a furniture shop to provide full-time employment for its residents; the profits from the furniture shop, which are applied to the operating costs of the halfway house, are exempt.
Every State that has adopted a version of the model Medical Practices Act includes a provision exempting ministerial healing from the requirement for a government license. Ministers are privately licensed by their communicants to provide the ministerial services they provide as part of the ordinary duties of their ministry. In New Jersey, for example, the provision reads: "the ministration to, or treatment of, the sick or suffering by prayer or spiritual means, whether gratuitously or for compensation, and without the use of any drug material remedy..."(NJSA 45:9-21).
Furthermore, churches may engage in educational activites as part of their Expressive Assocation protected activities. These activities come in many forms, from publishing books and educational materials, Internet sites, sponsoring seminars and webinars, to establishing teaching institutions such as schools and theological seminaries. In New Jersey, theological seminaries that do not issue bachelor degrees (but do issue other certifications and degrees) are exempt from state oversight.
Among the best resources for Ministers is available from Worth Tax & Finance Service 219-267-4687 and is their Tax Guide for Ministers and Religious Workers. It deals with many issues concerning the ministry, including the extent of professional expense reimbursement and the requirements to show the reasonableness of parsonage allowances. http://www.worthfinancial.com/
Scope of Exempt Expressive Association Activiities
It is important for minister practitioners, especially those with supervisory authority in their Churches, to have a reasonable understanding of the scope of exempt activities. This permits, with professional assistance where warranted, the best asset management for charitable purposes. And proper management allows the minister to better serve the spiritual mission her or she has chosen. The key concept here is the idea of Expressive Association: expressing one's beliefs through one's private associational activities.
The Supreme Court, in 2006, under the leadership
of its new
Chief Justice Roberts, reaffirmed the efficacy of the Religious Freedom
Restoration Act of 1993 (RFRA), 107 Stat. 1488, as amended, 42
“... adopts a statutory rule .... Under RFRA, the …Government may not, as a statutory matter, substantially burden a person’s exercise of religion, "even if the burden results from a rule of general applicability." §2000bb–1(a). The only exception recognized by the statute requires the Government to satisfy the compelling interest test—to "demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest." §2000bb–1(b). A person whose religious practices are burdened in violation of RFRA "may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief." §2000bb–1(c)." Gonzales v O Centro, No. 04–1084. Argued November 1, 2005—Decided February 21, 2006.
The most important recent Supreme Court development in the area of First Amendment Freedom is the well-known New Jersey Boy Scout case - Boy Scouts v Dale, 530 U.S. 640 (2000). The Court reiterated that Freedom of Speech and Freedom of Association together give rise to what the Court calls "Expressive Association" which is the expression of the association's beliefs through its internal decisions and activities. These are protected by Constitutional Right, "While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem… The record reveals... the Boy Scouts is a private association..."
Regarding educational activities, churches have always sponsored schools and seminaries. To a lesser or greater extent, such activities are exempt from state oversight. For example, in New Jersey, a leading court case exempts theological seminaries from the state oversight of institutes of higher learning, if the school does not issue Bachelor's degrees. Higher degrees and limited certifications appear to be permitted without state oversight: “…seminaries are not subject to governmental supervision or accreditation by outside agencies…” (Goodwin v State)
Regarding the health-related aspects of religious thought, the North Carolina Supreme Court concluded, a century ago –
"The state has not restricted the cure of the body to the practice of medicine and surgery -- allopathy, as it is termed, -- nor required that, before anyone can be treated for any bodily ill, the physician must have acquired a competent knowledge of allopathy and be licensed by those skilled therein. To do that would be to limit progress by establishing allopathy as the state system of healing, and forbidding all others. This would be as foreign to our system as a state church for the cure of souls. All the state has done has been to enact that, when one wished to practice medicine or surgery, he must, as a protection to the public [not to the doctor], be examined and licensed by those skilled in surgery and medicine. To restrict all healing to that one kind -- to allopathy, excluding homeopathy, osteopathy, and all other treatments -- might be a protection to doctors in surgery and medicine; but that is not the object of the act, and might make it unconstitutional, because creating a monopoly." State v MacKinght, 42 S.E. 580, 1902 at p 582.
Further that court held that there could be no "state system of healing" (p.402) and while
"Those who wish to be treated by practitioners of medicine and surgery had the guaranty that such practitioners had been duly examined...those who had faith in treatment by methods not included in the 'practice of medicine and surgery' as usually understood, had reserved to them the right to practice their faith and be treated, if they chose, by those who openly and avowedly did not use either surgery or drugs in the treatment of diseases..." State v Biggs, 46 SE Reporter 401, 1903 at p.402”
"Medicine is an experimental, not an exact science. All the law can do is to regulate and safeguard the use of powerful and dangerous remedies, like the knife and drugs, but it cannot forbid dispensing with them. When the Master, who was himself called the Good Physician, was told that other than his followers were casting out devils and curing diseases, he said, 'Forbid them not.'" p 405
As a private religious association, the Expressive Association Activities of which are protected under the First Amendment as exemplified in the leading Boy Scouts case, any Church or Ministry has the right to the exemptions and prerogatives provided by law.
As the Court stated in Thompson v.
"If the First Amendment means anything, it means that regulating speech must be a last - not first - resort. ... We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information."
"Even if the Government did argue that it had an interest in preventing misleading advertisements, this interest could be satisfied by the far less restrictive alternative of requiring each compounded drug to be labeled with a warning that the drug had not undergone FDA testing and that its risks were unknown."
The basic rule, announced by the case, to determine constitutionally permitted government restrictions on Commercial Speech (speech that makes or is about an offer for a transaction) is a Two Prong Test: the first prong is to ask two questions: (1) is the speech in question about unlawful activity and (2) is the speech misleading. If "no" to both, the speech is entitled to protection unless the Government can carry its burden and prove (1) the governmental interest involved is "substantial", (2) the regulation must "directly advance" the governmental interest and (3) the regulation of Commercial Speech cannot be "more extensive than is necessary to serve that interest" (quoting Central Hudson v Public Service, 447 US 557, at 566).
“…neither this court nor any branch of
government will consider the merits or fallacies of a religion. Nor
court compare the beliefs, dogmas, and practices of a newly organized
with those of an older, more established religion. Nor will the court
condemn a religion, however excellent or fanatical or preposterous it
Were the court to do so, it would impinge upon the guarantee of the
Amendment.” Judge Brattin, Eastern District of California, in Universal
Church, Inc. vs.
Ralph Fucetola JD
© 2009 rev.08.17.09
NOTICE: NJSA 45:9-21 exempts "the ministration to, or treatment of, the sick or suffering by prayer or spiritual means, whether gratuitously or for compensation, and without the use of any drug material remedy..." The information on this site is not to be considered advice or a substitute for current medical treatment. It is intended to help you make positive informed decisions about your health. We make no claims whatsoever expressed or implied of any cure or for any disease. These statements have not been evaluated by the Food and Drug Administration; not intended to diagnose, treat, cure or prevent any disease. Benefits are recommended based upon traditional uses and are not generally recognized as substantiated by competent and reliable scientific evidence. Devices and nutritional or other products are not offered to diagnose or prescribe for medical or psychological conditions nor to claim to prevent, treat, mitigate or cure such conditions, nor to recommend specific products as treatment of disease or to provide diagnosis, care, treatment or rehabilitation of individuals, or apply medical, mental health or human development principles, to provide diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition. Any use of devices is experimental and based upon your informed consent and private license. Testimonial results are not typical and your results may vary. The information on this site is not a substitute for medical advice from your primary care physician.
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