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IN the Supreme Court of the United States No. 08-___ IN THE Supreme Court of the United States ———— MICHAEL SKLAR AND MARLA SKLAR, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— JEFFREY IRA ZUCKERMAN Counsel of Record CURTIS, MALLET-PREVOST, COLT & MOSLE LLP 1200 New Hampshire Avenue, N.W. Suite 430 Washington, D.C. 20036 (202) 452-7350 Attorney for Petitioners March 12, 2009 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTION PRESENTED May the Internal Revenue Service permit practi- tioners of one religion — members of the Church of Scientology — to deduct as charitable contributions their payments for religious instruction, but disallow such deductions when claimed by practitioners of any other religion, such as the Jewish petitioners here? (i) ii LIST OF PARTIES All parties appear in the caption of the case on the cover page. TABLE OF CONTENTS Page QUESTION PRESENTED .................................. i LIST OF PARTIES .............................................. ii TABLE OF AUTHORITIES .............................. v OPINIONS BELOW ............................................ 1 JURISDICTION .................................................. 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................ 2 STATEMENT OF THE CASE ........................... 4 Historical Background ..................................... 8 Petitioners’ 1994 Case ..................................... 11 The Present Case ............................................. 13 REASONS FOR GRANTING THE WRIT ........ 18 I. The Ninth Circuit Erred in Sanction- ing—in Effect, Authorizing—IRS’ Pa- tently Unconstitutional Discrimination in Favor of Scientologists and Against Practitioners of All Other Religions ......... 18 II. The Ninth Circuit Has Decided an Important Federal Question in a Way that Conflicts With Relevant Decisions of This Court ............................................. 27 III. It Is Very Unlikely That This Court Will Ever Have Another Opportunity to Review IRS’ Unconstitutional Discrim- ination Against Non-Scientologists .......... 29 CONCLUSION .................................................... 31 (iii) iv TABLE OF CONTENTS—Continued APPENDIX Page Opinion below of the United States Court of Appeals for the Ninth Circuit, dated and filed December 12, 2008, and reported as Sklar v. Commissioner, 549 F.3d 1252 (9th Cir 2008) .......................... 1a Opinion below of the United States Tax Court, dated and filed December 21, 2005, and reported as Sklar v. Commis- sioner, 125 T.C. 281 (2005) ...................... 31a Opinion of the United States Court of Appeals for the Ninth Circuit in the related case of Sklar v Commissioner, 282 F.3d 610 (9th Cir 2002) ..................... 59a Excerpts from Agreement between the Internal Revenue Service and the Church of Scientology and its constitu- ent entities, dated October 1, 1993, as published by The Wall Street Journal Interactive Edition (Tax Court Exhibit 62 P) .......................................................... 83a v TABLE OF AUTHORITIES CASES Page Allegheny Pittsburgh Coal Co. v. County Commission, 488 U.S. 336 (1989)............. 22 Epperson v. Arkansas, 393 U.S. 97 (1968)... 19 Everson v. Board of Education, 330 U.S. 1 (1947) ......................................................... 19 Foley v. Commissioner, 844 F.2d 94 (2d Cir. 1988) ................................................... 25 Gillette v. United States, 401 U.S. 437 (1971) ......................................................... 19 Henson v. Internal Revenue Service, 2000 U.S. App. Lexis 23997 (9th Cir. 2000) ..... 27 Hernandez v. Commissioner, 490 U.S. 680 (1989) .................................... 4, 5, 8, 9, 10, 11, 26 Hillsborough Township v. Crowell, 326 U.S. 620 (1946) .......................................... 22 Iowa-Des Moines National Bank v. Bennett, 284 U.S.239 (1931) ................ 21, 22, 26 Larson v. Valente, 456 U.S. 228 (1982) ... 19, 20, 21 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) .................................................. 27 McKesson v. Division of Alcoholic Beve- rages & Tobacco, 496 U.S. 18 (1990) ........ 22 Sklar v. Commissioner, 549 F.3d 1252 (9th Cir. 2008) .......................... 6, 7, 17, 18, 21, 24, 25 Sklar v. Commissioner, 125 T.C. 281 (2005) ......................................................... 17 Sklar v. Commissioner, 282 F.3d 610 (9th Cir. 2002) ................ 13, 14, 15, 21, 24, 25, 27, 28 Sklar v. Commissioner, T.C. Memo 2000- 118 ............................................................. 13 United States v. American Bar Endow- ment, 477 U.S. 105 (1986) ......................... 12 vi TABLE OF AUTHORITIES—Continued CONSTITUTIONAL PROVISIONS, Page STATUTES AND REGULATIONS A.R.M. 2, C.B. 1, 150 (1919) ......................... 24 I.R.C. § 170 ........................ 4, 11, 12, 17, 18, 24, 26 I.R.C. § 501(c)(3) ........................................... 24 I.R.C. § 6033(a)(2)(A)(i) ................................ 24 I.R.C. § 6115 ................................................. 11 I.R.C. § 6662(a) ............................................. 7 28 U.S.C. §1254(1) ........................................ 2 Omnibus Budget Reconciliation Act of 1993, P.L. No. 103-66, 107 Stat. 312 ...... 11 Rev. Rul. 70-47, 1970-1 C.B. 49 .................. 24, 25 U.S. CONST., AMEND. I ........................ 12, 18, 19 OTHER 2006 Private School Universe Survey, National Center for Education Statistics, U.S. Department of Education ................ 28 Lawrence Zelenak, Should Courts Require the Internal Revenue Service to be Consistent?, 38 Tax L. Rev. 411 (1985) .. 26-27 “Scientology’s Puzzling Journey from Tax Rebel to Tax Exempt”, The New York Times, March 9, 1997 ............................... 11 “Scientologists and IRS Settled for $12.5 Million”, The Wall Street Journal, Dec 30, 1997 ..................................................... 11 “$12.5 Million Deal with I.R.S. Lifted Cloud Over Scientologists”, The New York Times, Dec. 31, 1997 ....................... 11 IN THE Supreme Court of the United States ———— No. 08-___ ———— MICHAEL SKLAR AND MARLA SKLAR, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— Petitioners respectfully pray that a writ of certi- orari issue to review the judgment below. OPINIONS BELOW The opinion of the United States Court of Appeals for the Ninth Circuit is reported at Sklar v. Commis- sioner, 549 F.3d 1252 (9th Cir. 2008), and is contained in the appendix to this petition at 1a. The Ninth Circuit affirmed the opinion of the United States Tax Court, which is reported at Sklar v. Commissioner, 125 T.C. 281 (2005), and is contained in the appendix to this petition at 31a. 2 JURISDICTION The United States Court of Appeals for the Ninth Circuit rendered its decision on December 12, 2008. No petition for rehearing was filed. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED THE ESTABLISHMENT CLAUSE, U.S. CONST. AMEND. I Congress shall make no law respecting an estab- lishment of religion . I.R.C. §170, CHARITABLE, ETC., CONTRIBUTIONS AND GIFTS (a) ALLOWANCE OF DEDUCTION.— (1) GENERAL RULE.—There shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year. * * * * (c) CHARITABLE CONTRIBUTION DEFINED.—For pur- poses of this section, the term “charitable contribu- tion” means a contribution or gift to or for the use of— (1) . (2) A corporation, trust, or community chest, fund, or foundation— (A) . (B) organized and operated exclusively for reli- gious, charitable, scientific, literary, or educational purposes . 3 * * * * (f) DISALLOWANCE OF DEDUCTION IN CERTAIN CASES AND SPECIAL RULES.— * * * * (8) SUBSTANTIATION REQUIREMENT FOR CERTAIN CONTRIBUTIONS.— (A) GENERAL RULE.—No deduction shall be allowed under subsection (a) for any contribution of $250 or more unless the taxpayer substantiates the contribution by a contemporaneous written acknowl- edgment of the contribution by the donee organiza- tion that meets the requirements of subparagraph (B). (B) CONTENT OF ACKNOWLEDGMENT.—An ac- knowledgment meets the requirements of this subpa- ragraph if it includes the following information: (i) The amount of cash and a description (but not value) of any property other than cash contributed. (ii) Whether the donee organization provided any goods or services in consideration, in whole or in part, for any property described in clause (i). (iii) A description and good faith estimate of the value of any goods or services referred to in clause (ii) or, if such goods or services consist solely of intangible religious benefits, a statement to that effect. For purposes of this subparagraph, the term “intangible religious benefit” means any intangible religious benefit which is provided by an organization organized exclusively for religious purposes and which generally is not sold in a commercial transac- tion outside the donative context. 4 * * * * I.R.C. §6115, DISCLOSURE RELATED TO QUID PRO QUO CONTRIBUTIONS. (a) DISCLOSURE REQUIREMENT.—If an organization described in section 170(c) . receives a quid pro quo contribution in excess of $75, the organization shall, in connection
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