Amicus Curiae Brief — Davis v. United States

~~ | a US,

FILED

| DEC 28 1989

-s JOSEPH F. ser

Cl

No. 89-98 SPANIOL, dR

In THE

Supreme Court of the United States

OcToBER TERM, 1989

HAROLD and ENID DAvis,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

WILForRD W. KIRTON, JR.

RAEBURN G. KENNARD

Ropert P. LUNT

KIRTON, McConkie & PoELMAN

330 South Third East

Salt Lake City, Utah 84111

(801) 521-3680

Counsel for Amicus Curiae

December 28, 1989

Wiueon - Gras Pamrine Co.. Inc. - 769-0086 - Wasnineron. OC. 20001

(i)

INTEREST OF AMICUS CURIAE .............................

STATEMENT OF THE CASE ............................

A. Establishment of the Church’s Missionary Tra-

ditions

B. Nature of a Missionary’s Work —...............___....

C. Comparison with Other Church Contributions...

D. The Purpose of the Program Is to Benefit the

I emuuprnunane

E. Reasons the Church Prefers Direct Payment......

1. Tradition

2. Family Connection to Service Builds Faith.

3. Keeps the Missionary Frugal

4 Helps Avoid Tax & Visa Problems in For-

eign Countries

5. Reduces Administrative Burdens and Costs..

6. Responds to Change in Location or Needs...

lL BECAUSE THE CHURCH RECEIVED THE

PRIMARY BENEFIT OF TEE TAXPAYERS’

DONATIONS, THE GIFTS

pA and ARE a2

THEREFORE DE-

DUCTIBLE

Il.

Il.

CONCLUSION

iv “

TABLE OF CONTENTS—Continued

THE CHURCH EXERCISED SUFFICIENT

CONTROL OVER THE DONATED FUNDS

TO QUALIFY THE CONTRIBUTIONS FOR

DEDUCTIBILITY EVEN WITHOUT HAV-

ING PHYSICAL POSSESSION

WHERE NO ABUSE BY PARTIES TO THE

GIFTS AT ISSUE HAS BEEN PROVED OR

ALLEGED, SPECULATIVE FEAR OF

BASIS ON WHICH TO DENY THE DEDUCT-

IBILITY OF THESE CONTRIBUTIONS........

A. No Abuse Has Been Alleged in the 5 Years

Since White

B. Approval of the Deduction at Bar Could Be

Done Within a Framework Meeting IRS

Needs

C. The Church Exercises the Same Substantial

Control Whether Donations Are Given Di-

rectly to the Missionary or Directly to the

Church

Page

18

19

19

Vv :

TABLE OF AUTHORITIES

CASES Page

Archbold yv. United States, 444 F.2d 1120 (Ct. Cl.

Nh 16

Brinley v. Commissioner, 782 F.2d 1326 (5th Cir.

1986), rev’g, 82 T.C. 982 (1984) ....0 0... 18, 19

Dejong v. Commissioner, 309 F.2d 873 (9th Cir.

1962) te 15

Dowell v. United States, 553 F.2d 1233 (10th Cir.

i 16

Duberstein v. Commissioner, 363 U.S. 278 (1960) .. 15, 18,

23

Helvering V. Bliss, 298 U.S. 144 (1984) _............. 16

Hernandez v. Commissioner, 109 S. Ct. 2136

Ee 17

Morey Vv. Riddell, 206 F. Supp. 918 (S.D. Ca.

Orr v. United States, 348 F.2d 5583 (5th Cir.

NS “ 18

Rockefeller v. Commissioner, 76 T.C. 178 (1981),

aff'd, 676 F.2d 35 (2nd Cir. 1982)... 16

Rockefeller v¥. Commissioner, 676 F.2d 35 (2nd

Cir. 1982), aff’g, 76 T.C. 178 (1981) 00000... 16, 17

Sampson Vv. Commissioner, 48 T.C.M. (CCH) 1408

(1982) .. 16,19

Smith v. Commissioner, 60 T.C. 988 (1973)... 16

Thomason VY. Commissioner, 2 T.C. 441 (1948). 17

Tripp Vv. Commissioner, 887 F.2d 482 (7th Cir.

1964) 17

White v. United States, 725 F.2d 1269 (10th Cir.

1984) ...16, 18, 19, 20

Winn v. Commissioner, 595 F.2d 1060 (5th Cir.

. 17,18

(a 1, 15, 18

Rev. Rul. 66-10, 1966-1C.B.47....0 21

Rev. Rul. 69-478, 1969-2 C_B. 37 21

Rev. Rul. 70-519, 1970-2 C.B. 62 21

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

B. Bittker, Federal Taxation of Income, Estates

and Gifts (1981)

Deseret News 1989-1990 Church Almanac (1989) ..

Doctrine and Covenants §§ 28, 30-33 (1830) ............

Doctrine and Covenants § 34 (1830)

Doctrine and Covenants § 42:58 (1831)

Doctrine-and Covenants § 133 :8, 837 (1831) —..........

Doctrine and Covenants § 90:11 (1833)

Doctrine and Covenants § 119 (1838)

J. F. Smith, Essentials In Church History (21st

ed. 1966)

Luke 9 :24. _

Matthew 24:14

1 Millennial Star 12 (Apr. 1841) ......

2 Millennial Star 8 (Dec. 1841)

Report of the 95th Annual Conference of The

Church of Jesus Christ of Latter-day Saints

(Apr. 1925)

Report of the 129th Annual Conference of The

Church of Jesus Christ of Latter-day Saints

(Apr. 1959)

= g

ore er eoaeaan

_— —-.

In THE

Supreme Court of the United States

OcTOBER TERM, 1989

No. 89-98

HAROLD and END Davis,

Petitioners,

im Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The Church of Jesus Christ of Latter-day Saints

(“Church”), is recognized by the Internal Revenue

States whose necessary expenses are generally by

donations from their families, friends or other

This system for financing missionary service was de-

signed to meet the needs of the Church.

The Church has a strong interest in this case because

the decision of the Ninth Circuit jeopardizes the chari-

gram and sacrificing Church objectives to qualify the pro-

gram for tax deductibility in the interest of its members. —

The parties have consented to the filing of this brief.

STATEMENT OF THE CASE

As with all ordained missionaries of the Church, the

Petitioners’ (“Taxpayers”) missionary sons were not self-

appointed, and their missionary service experience was

neither intended nor conducted for their personal bene-

fit. Nor did the Church request Taxpayers to pay their

donations directly to the missionaries for the personal

benefit of the missionaries, but to accomplish important

objectives of the Church. To comprehend to what extent

the Church’s missionary program, including its preferred

method of payment, is oriented strictly toward Church

benefit, one must appreciate the place of missionary work

in the history and doctrines of the Church.

A. Establishment of the Church’s Missionary Traditions

The very first missionary effort by the Church had a

family connection. In June, 1830—when the Church had

been organized only two months and had barely 50 mem-

bers—Samuel Smith was appointed by his brother Joseph,

the President of the Church, to “take a missionary jour-

ney to the east.” He travelled on foot up to 25 miles per

day, relying on the hospitality of people he met, or else

going without food and sleeping in fields beside the road.

His assignment was to distribute copies of the newly-

published Book oF MorMON ' and to tell all who would

listen of the miraculous restoration, through the Prophet

Joseph Smith, of the Church of Jesus Christ.”

By October of that first year, the Church had called

other missionaries, and assigned them to travel in various

directions from its then headquarters in Fayette, New

York. Four missionaries were assigned to preach to the

American Indians on the western frontier.’ Travelling

mostly on foot in the cold and storms of fal] and winter,

they preached to Indian tribes in New York, Ohio and

Missouri, and to the settlers along the way. The successes

of these devoted missionaries opened the door for the

Church’s eventual move to Kirtland, Ohio.‘ In those early

days of the Church, the missionaries included men of all

ages, most of whom were married and left behind fami-

lies. Yet, even then, faithful young men, such as the

missionaries in this case, were sent out to perform this

sacred service as evidenced by the cal] of Orson Pratt

at the age of 19, in October, 1830.°

During the next six years, the Church sent missionaries

into most of the eastern states and into parts of Canada,

*The Book of Mormon is one of four books of scripture ac-

cepted by the Church. The others are the Holy Bible, Doctrine

and Covenants and Pearl of Great Price.

2 J. F. Smith, Essentials In Church History 103-4 (21st ed. 1966).

* Doctrine and Covenants §§ 28, 30-33 (1830).

*J. F. Smith, Essentials In Church History at 115-18.

* Doctrine and Covenants § 34 (1830).

.

a

.

but it is no longer possible

vel wituout purse or scrip

8 financing plan for its mis-

the concept of an unpaid ministry,

necessity, for three very im-

it reduces the financial burden on

é

i

5egies

ALE

today

to

resulted in the Church's growing to nearly 17,000

frugality that remain the models for the

stresses

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this donated service to the Church -

at worship services, Sunday

purposes of the Church.”

missionary contributions, consists of two main kinds:

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(1) donations by parents to pay the costs of their child’s

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12

by the young missionaries a fundamental part of that

religious lore, but so is the system whereby the financing

of that service comes from family and friends directly

in connection with the service. To finance the missionary

service from general funds of the Church, donated with

no connection to the performance of the services, would

eliminate an element of the donor’s involvement in the

service itself, which is important to the vitality of the

Church’s sacred traditions.

to keep them alive, and willingly going without at home

out of sheer devotion to the Church. Today, fathers,

or sister can give two full years of service to the Church.

The Church has found that a family’s faith, its commit-

ment to the Church’s rites, commandments and doctrines,

a, Sel. eel eee

13

control exercised over the missionary’s finances by the

Church, the missionaries’ awareness that their services

require a financial sacrifice from their loved ones at home

is also an important factor. Thus, missionaries con-

scientiously keep their expenses to a minimum, and avoid

any non-missionary activities that would enlarge the

burden upon their families. It is unlikely that the mis-

sionaries would maintain the same frugality if their

finances came from the more remote and impersonal in-

stitution of the Church itself.

4. Helps Avoid Tax & Visa Problems in Foreign

Countries

To obtain visas in many foreign countries, mission-

aries must demonstrate (1) that they will be “spon-

sored” by donated funds from the home country (no

welfare burden on the host country), and (2) that they

will not be employed in the host country (no competi-

. tion for host country jobs). The Church’s direct payment

method of financing missionary service satisfies both of

those requirements. It also avoids any controversy as to

whether the missionaries’ funds might be taxable in-

come in the host country. Changing to a system in which

all missionary donations would be paid to the Church

and then disbursed to the missionaries would raise se-

rious questions in some countries as to the missionaries’

status for visa and/or income tax purposes. This is an

unnecessary burden to impose upon the Church’s purely

religious program.

5. Reduces Administrative Burdens and Costs

The present Church system of having most missionary

contributions paid directly to the missionaries results in

very significant cost and labor savings for the Church.

that system would impose administrative, ac-

and personnel costs at the headquarters level

well administrative burdens upon

congregational! level. The ad-

ditional hours of local leader involvement, and the added

headquarters costs, that would be required to double,

triple or further multiply the number of times each of

the thousands of missionary contributions must be han-

died each month would be staggering.” Such a change

would unnecessarily edd a layer of bureaucratic expense

to a vital program that is already a financial burden for

the Church and its members.

6. Responds to Change in Location or Needs

Generally, each missionary is moved from one area to

another every three to six months. In addition, certain

mission assignments, such as those involving use of a

car, require the missionary to receive supplemental fi-

nancial support. Through weekly letters from the mis-

sionaries, the parents learn of these changes faster than

either the local Church leaders or Church headquarters.

Therefore, the direct payment method of financing mis-

sionary service is the most efficient way for parents to

respond to such changes in needs. On the spartan budget

of a missionary, failing to receive sufficient funds on

time would be extremely disruptive of the work and

morale. The present system also makes it easier to re-

spond to changing locations and financial needs.

SUMMARY OF ARGUMENT

The proper test to determine whether payments are

“to or for the use of” a recognized charity is whether

the charity receives the primary benefit of the payments.

Whether the charity receives possession or not is irrele-

vant. Neither the lower court nor the IRS disputed

15

money is spent, and even over the amount and timing

of the donations. The degree of contro] exercised by the

Church is sufficient to satisfy the statutory standard of

a gift “to or for the use of” the Church.

The suggestion by the IRS to the courts of appeals

that the direct payment might be subject to abuses lacks

any substance. There is no evidence of such abuses in

the Tenth or Fifth Circuits, where deductions similar to

those at issue here have been permitted. Even more im-

portant, this case deals with the practices of only one

Church, whose policies and procedures—particularly those

resting on the Church’s objective to keep missionary ex-

penses as low as possible—are an effective safeguard

against abuse.

ARGUMENT

I. BECAUSE THE CHURCH RECEIVED THE PRI-

MARY BENEFIT OF THE TAXPAYERS’ MISSION-

ARY DONATIONS, THE GIFTS WERE “TO OR FOR

THE USE OF” THE CHURCH, AND ARE THERE-

FORE DEDUCTIBLE

This court’s decision in Duberstein v. Commissioner,

363 U.S. 278 (1960), defining the term “gift” in another

context, is instructive in this case. There, the govern-

ment’s proposed adoption of a mechanical test was re-

jected, in favor of applying the court’s “experience with

the mainsprings of human conduct to the totality of the

of each case.” Duberstein’s teachings have since

Section 170 cases." Yet the

court, at the urging of the government, proposes

to the effect that the contribu-

tions at issue cannot be deductible unless they are

placed in the physical possession of the Church. Re-

spectfully, the Church maintains that such a rule ex-

over substance, ignoring the totality of the

™ For example, see Dejong Vv. Commissioner, 209 F.2d 872, 379

first applied Duberstein to a Section 170

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APPENDIX B

THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS

Office of the First Presidency

SALT LAKE CiTy, UTAH 84444

October 13, 1978

$ 40.00 to $ 70.00

100.00 to 130.00

TO ALL STAKE, MISSION, AND DISTRICT

PRESIDENTS, BISHOPS AND BRANCH

PRESIDENTS IN THE UNITED STATES

Dear Brethren: -

As we have witnessed the expansion of missionary work

throughout the world, we have been moved by the faith

and sacrifice of parents and others who have supported

the missionary program through financial contributions.

We know that the Lord has richly blessed those who have

made such sacrifices, yet we are keenly aware of the in-

creasing costs of missionary work and are anxious that

these contributions not become an overwhelming burden

to those members who are involved.

When a prospective missionary is recommended for a

mission call, we ask that you interview both him and his

parents (or whoever will be providing financial contribu-

tions toward his missionary service) and counsel with

West Virginia Charleston

Wisconsin Milwaukee

Washington Spokane

Zimbabwe Harare

Washington, D.C. North

Washington, D.C. South

Washington Seattle

West Indies

Venezuela Maracaibo

Virginia Roanoke

Mission

$168.00

496.00

Room and

Board

Missionary Training Center—Provo

The parents or donors should be encouraged to

amount needed to support the missionary

mission to which the prospective mission-

assigned. This amount will be indicated by

time the missionary receives his call

FOR MONTHS JULY, AUGUST, SEPTEMBER, 1989

AVERAGE MONTHLY COST PER SINGLE MISSIONARY

(8 weeks)

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parents and the prospective missionary should

i ae missionary support funds are considered

K Be hk contributions to The Church of Jesus of Latter-day

so inform the donors. About sixty of

his term of service, if the missionary sees that the con-

tributions he is receiving on behalf of the Church will ex-

ceed the financial needs of his mission, he should notify

the donors of the amount of money required him

the

mission president so that all missionary contributions are

used for the purpose for which they were given to the

Church.