On Friday, I was at the ABA Tax Section meeting in San Francisco. Patrick Thomas had invited me to speak on a panel entitled “The IRS Violated My Client’s Religious Liberties: When is This Unlawful and What Can We Do About It?” And, although the panel focused specifically on the Amish, its subject matter is relevant to Mormons’ interest in religious freedom, in immigrant rights, and in what it means to live as a religious individual in a secular society.
Some background before I get into the specifics of our panel. First, it turns out that talking about “the Amish” as if it described a single, unified group is misleading. There are, I’ve been told, at least 40 different Amish groups, each of which differs at least a little in its beliefs and practices. Generally speaking, though, the Amish don’t believe in insurance (government-provided or otherwise). It interferes with the familial and community support they believe the Bible demands of them, and which they value, and it demonstrates a lack of trust in God.
As a result, the Amish have largely been exempted from paying Social Security taxes. That exemption also prevents them from collecting Social Security when they would otherwise qualify, of course. (To claim and memorialize that exemption, they have to sign a Form 4029 which, through a complicated procedure, is also signed by their bishop and has to be processed both by the IRS and the Social Security Administration. Apparently, they generally sign the Form 4029 when they’re baptized, which happens in their late teens or early 20s.)
Along with their opposition to Social Security, at least some Amish object to having a social security number. And that creates a significant problem: under 2017’s Tax Cuts and Jobs Act, until 2025, if you want to claim a child tax credit, the claimed child must have a social security number.
That wasn’t always the case: prior to 2018, a claimed child had to have a taxpayer identification number. Generally, a TIN is a social security number, but, in legislative history, Congress blessed the IRS’s practice of issuing a non-social security number TIN for Amish children. The IRS takes the position that under the TCJA, though, its hands are tied: if a child doesn’t have a social security number, a parent can’t claim the child tax credit for that child. (The IRS does allow the parent to claim a dependent credit, but the dependent credit is $500, while the child tax credit is up to $2,000. So there’s a real difference.)
And I think the IRS is right: section 24 explicitly requires a social security number; there’s no ambiguity the IRS can exploit administratively.
So was Congress out to get the Amish? No. In fact, there’s almost no way they considered the Amish. Rather, this was an unintended consequence of Republicans’ anti-immigrant sentiment. See, this provision was introduced originally by former Rep. Luke Messer. He learned that the IRS sometimes issued TINs to undocumented immigrants, which allowed them to take the child tax credit. To stop that, he authored legislation that would require a social security number to claim the child tax credit. That legislation ended up in the TCJA. Messer boasted in November that “[t]he Trump tax plan also includes a provision I authored to stop $4 billion to $7 billion in refundable child tax credits paid out to illegal immigrants each year.”[fn1]
The Amish got caught in the crossfire of the GOP’s war on immigrants.
But, you might be asking yourself, doesn’t the Free Exercise Clause mean the government has to accommodate the Amish? Or, if not, doesn’t at least RFRA mean there has to be accommodation?
No. Even if this represents a substantial burden on their religious practice (and it may well represent such a burden), the government isn’t required to accommodate where it can show that the law isn’t targeted at religion and that it meets a compelling government interest. And the courts have held that raising revenue is always a compelling government interest, one that trumps religious practice.
So what can the Amish do? They can pay their taxes, then file for a refund in the amount of the child tax credit they say they’re owed. Then, when the IRS doesn’t give them a refund, they can. (Or they can sue in the Tax Court without first paying their tax.) They’ll ultimately lose, but that will preserve their refund for when and if Congress changes the requirements for the child tax credit. And they can lobby (and, I understand, are lobbying) for such a change to happen.
[fn1] Note that the $4 billion to $7 billion number seems to misunderstand a TIGTA report’s conclusion.