608 F.2d 599

In re Jacob R. WARD, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Defendant-Appellee.

No. 79-2298

Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

Dec. 19, 1979.

Butler, Boltz & Vickers, Paul A. Butler, Houston, Tex., for petitioner-appellant.

M. Carr Ferguson, Asst. Atty. Gen., James F. Miller, Gilbert E. Andrews, Act. Chief, Appellate Section, Grant W. Wiprud, Tax Division, U. S. Dept, of Justice, Lester Stein, Acting Chief Counsel, IRS, Washington, D. C., for defendant-appellee.

Before BROWN, KRAVITCH and FRANK M. JOHNSON, JR., Circuit Judges.

PER CURIAM:

Appellant taxpayer was self-employed as a salesman for Lubrication Engineer, Inc., during the years 1973 through 1976. He paid no self-employment tax during those years. Instead, he filed a Form 4029 Application for Exemption from Tax on Self-Employment and Waiver of Benefits. This exemption is available under the Internal Revenue Code Section 1402(h) (currently codified and referred to as Section 1402(g)).1 This exemption is available to members of recognized religious sects which include in their beliefs the conscientious *600objection to public or private insurance and which make reasonable provisions for their dependent members. In his application, Taxpayer did not certify that he was a member of any such religious sect, but did state he was a member of a group “conscientiously opposed to payments to social security.”

The Internal Revenue Service denied Taxpayer’s application for exemption by letter dated June 27, 1977, on the grounds that “he had not established that he qualified as a duly ordained minister or as a member of a qualified religious faith under Sections 1402(e)2 and (g) of the Internal Revenue Code * * The Govern*601ment’s position was affirmed in a memorandum decision by the Tax Court.3

There is no question that Taxpayer is not in compliance with the language of § 1402(g). Thus, the only issues on appeal are whether this section of the Internal Revenue Code violates the First and Fourteenth Amendments, as the appellant urges. We do not believe Taxpayer’s Constitutional objections are well founded, and we affirm the decision of the Tax Court.

The First Amendment Issue

The Taxpayer first argues that § 1402(g) violates the Establishment and Free Exercise Clauses of the First Amendment. We do not reach this issue because we hold that the Taxpayer does not have standing to assert this claim.4 The Taxpayer states that he seeks to have this exemption declared unconstitutional. But if we so held, the exemption would be entirely void. The relief the Taxpayer really seeks, to be included within the exemption, would not be ours to grant. Only Congress could amend the statute to include the Taxpayer’s situation. In short, the Taxpayer has not shown that he has suffered an injury which is likely to be redressed by a favorable decision. Simon v. Eastern Kentucky Welfare Rights Organization, 1976, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450.

The Equal Protection Issue

Taxpayer next contends § 1402(g) violates the Equal Protection Clause of the Fourteenth Amendment because it denies him the same exemption as members of recognized religious sects who conscientiously object to Social Security. Of course, the Fourteenth Amendment applies only to state, and not to federal, action. Jewell v. City of Covington, 5 Cir. 1970, 425 F.2d 459, cert. denied, 1970, 400 U.S. 929, 91 S.Ct. 195, 27 L.Ed.2d 189. However, the Due Process *602Clause of the Fifth Amendment does provide protection against federal discriminatory action “so unjustifiable as to be viola-tive of due process.” Bolling v. Sharpe, 1953, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884, 886. See also Shapiro v. Thompson, 1969, 394 U.S. 618, 642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600, 619; Schneider v. Rusk, 1964, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218, 222. More recently, the Due Process Clause of the Fifth Amendment has been held to actually incorporate the Equal Protection Clause of the Fourteenth Amendment. United States v. Falk, 7 Cir. 1973, 479 F.2d 616, 618; United States v. Thoresen, 9 Cir. 1970, 428 F.2d 654, 658.

Yet § 1402(g) does not arbitrarily discriminate against Taxpayer. “Neither due process nor equal protection imposes * * * any rigid rule of equality of taxation.” Carmichael v. Southern Coal and Coke Co., 1936, 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245, 1253. The singling out of one class for tax exemption is justifiable in light of the Congressional purpose of accommodating the religious beliefs of those people whom they felt sure had firmly based religious convictions. H.Rep. No. 213, 89th Cong. 1st Sess. 101 (1965 — 2 Cum. Bull. 739-740).

AFFIRMED.

Ward v. Commissioner
608 F.2d 599

Case Details

Name
Ward v. Commissioner
Decision Date
Dec 19, 1979
Citations

608 F.2d 599

Jurisdiction
United States

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