The Income Tax Exclusion of the Housing Allowance for Ministers of the Gospel Per I.R.C. Section 107: First Amendment Establishment of Religion Or Free Exercise Thereof - Where Should the Warren Court Have Gone‪?‬

I. INTRODUCTION--CONSTITUTIONAL QUESTIONS AND THE ROLE OF THE TAX PRACTITIONER/PROFESSOR The exclusion of the housing allowance paid to "ministers of the gospel" from federal income tax under the Internal Revenue Code (I.R.C) Section 107 both presents a unique tax issue and raises constitutional issues under the Establishment and Free Exercise Religion Clauses of the First Amendment. (1) Neither taxpayers nor the Internal Revenue Service (I.R.S.) seem to want to raise these issues. (2) In Warren v. Commissioner, (3) the Ninth Circuit Court of Appeals raised the constitutional questions, appointed an amicus to brief those questions, but then prevented that amicus from intervening in the same case when the parties, the taxpayers and I.R.S., filed a joint stipulation to dismiss the appeal. Now, some five years since Warren, no one has attempted to litigate whether allowing ministers of the gospel to exclude housing allowances under I.R.C. section 107 is an unconstitutional establishment of religion under the First Amendment, or rather a permissible accommodation of religion, or even a necessary exemption to allow free exercise under that same amendment. (4)