Taxation, Conscience, and Action vs. Inaction

[Douglas Laycock]

It would comfort at least some objectors, and I assume it would not comfort others.  There was a RFRA case a while back where some Quaker taxpayers offered to leave enough money in a separate bank account to pay their taxes, and to tell the government where the money was, and let it seize the money by levy.  It seems to me that they were willing to do quite a bit to pay their taxes.  But they weren't writing a check, and I think in their view, they were simply not resisting the government's collection efforts.  Of course they lost; neither the IRS nor the court was willing to be flexible.  Congress would have to create this for it to work. 

I haven't looked too hard, but I can't find the case now.  I thought it was Adams v. Commissioner, 170 F.3d 173 (3d Cir. 1999), but that was a less cooperative Quaker.  I think the case that illustrates Mark's idea was a Second Circuit case about the same time.  But I won't swear to that. 

Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:

> We recently had a discussion in my jurisprudence class about the 
> moral difference between doing an act and allowing it to happen. I 
> know some people disagree, but I think there often is a real 
> difference. In relation to paying taxes that support activities that 
> a taxpayer finds morally or religiously reprehensible, I wonder 
> whether it could make sense for the government to accommodate those 
> concerns of conscience by setting up a kind of easy involuntary tax 
> payment program.
>
> A taxpayer could inform the IRS that he or she declines to pay a 
> portion of the tax that is due, in which case the taxpayer would be 
> required to provide information on a bank account. The account could 
> be a regular checking or savings account not specifically funded by 
> the taxpayer for this purpose, but nevertheless on in which there are 
> likely to be sufficient funds to cover the unpaid taxes. The IRS then 
> would levy on that account, under a streamlined process that could be 
> set up as part of the program, and collect the tax plus a fee or 
> penalty (maybe 5% of the unpaid amount plus interest, say, from Jan. 
> 1 of the tax year) to cover the cost of the program and to provide a 
> disincentive for casual use of it. So long as the account held 
> sufficient funds to cover the amount of the levy, there would be no 
> additional fees or penalties. Alternatively, a taxpayer could be 
> required to notify the IRS before the beginning of the taxable year 
> that he or she intended to refuse to pay some portion of the income 
> tax due, and the IRS could collect an estimated amount in advance 
> from such a bank account.
>
> I realize that as a practical matter this could be hard to coordinate 
> with tax withholding, and I would not support a program that could 
> not be used by the typical wage earner. But perhaps something could 
> be worked out. (I suppose the whole tax withholding system could be 
> seen as a kind of involuntary payment program, under which the 
> employer withholds amounts based on information provided by the 
> employee, with the result that perhaps the employee could be seen as 
> not acting to pay the tax. Maybe most of us therefore already have 
> the kind of program I'm suggesting!)
>
> In any event, I wondered whether list members think that such a 
> program would provide any real relief for taxpayers whose consciences 
> are violated by paying taxes for programs that violate their moral or 
> religious beliefs. Is the requirement of funding a bank account and 
> providing information so that the IRS can levy any less of a burden 
> on conscience than a requirement simply to pay the tax? Would a truly 
> conscientious objector to paying taxes for such government activities 
> violate his or her conscience by providing information about the 
> account or by placing/leaving enough money in the account to cover 
> the IRS levy? Or is it really different to have the IRS take the 
> money from you (even if you obeyed the law by making it easy for the 
> IRS to do so) rather than paying it yourself?
>
> [To relate this to current political issues: Would a person be 
> effectively disqualified from service as a government official in a 
> new administration (e.g., secretary of Health and Human Services in a 
> 2017 Bobby Jindal administration) if the person had suffered such a 
> tax levy for refusing to pay taxes to support a prior 
> administration's activities (e.g., massive federal funding of human 
> fetal stem cell or chimera research under the Obama administration)?]
>
> Mark S. Scarberry
> Pepperdine Univ. School of Law
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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