                            T.C. Memo. 1997-40



                          UNITED STATES TAX COURT



                      OSCAR HAIMOWITZ, Petitioner v.
               COMMISSIONER OF INTERNAL REVENUE, Respondent


       Docket No. 11985-95.                      Filed January 23, 1997.


       Oscar Haimowitz, pro se.


       Michele F. Leichtman, for respondent.


                            MEMORANDUM OPINION


       NAMEROFF, Special Trial Judge:     This case was heard pursuant

to the provisions of section 7443A(b)(3)1 and Rules 180, 181, and

182.       Respondent determined a deficiency in petitioner's 1992

Federal income tax in the amount of $780.

       1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 2 -


     After concessions by petitioner2, the sole issue for

decision3 is whether petitioner may exclude $3,705 from gross

income as a parsonage allowance pursuant to section 107(2).

                            Background

     Some of the facts have been stipulated, and they are so

found.   The stipulation of facts and attached exhibits are

incorporated herein by this reference.   At the time he filed his

petition, petitioner resided in Beverly Hills, California.

     Beginning in November 1950, petitioner worked for Temple

Adath Israel (the temple) in Marion, Pennsylvania.   He stayed

with the temple for about 30 years until he retired in 1980.

Petitioner graduated from La Salle College with a degree in

social studies.   Petitioner, however, never attended a religious

seminary4, and he neither is nor was an ordained rabbi or a



     2
        Petitioner concedes a $1,270 interest income adjustment
and a $226 Social Security income adjustment for the 1992 tax
year.
     3
        Petitioner also contests the constitutionality of sec.
107, claiming it is in violation of the Establishment Clause of
the First Amendment to the U.S. Constitution. This contention is
unavailing, in that if we decide the constitutional argument in
petitioner's favor, the result would lead to the disallowance of
the parsonage exclusion that he seeks. We refuse to consider
this issue, as the outcome could not affect petitioner's tax
liability in this case. See Kirk v. Commissioner, 51 T.C. 66, 72
(1968), affd. 425 F.2d 492 (D.C. Cir. 1970).
     4
        Petitioner testified that he intended to join the Jewish
Theological Seminary of America in New York sometime around the
year 1950, but was unable to find housing in the New York area.
Unable to join the seminary, he began working for the temple.
                                 - 3 -


commissioned cantor.    Petitioner testified, however, that he was

recognized as a Fellow in Synagogue Administration.    An

organization called Synagogue Administrators Association

presented petitioner this honor sometime around 1987 for his

efforts while with the temple.

     Petitioner's responsibilities with the temple varied over

time.   He initially was hired as an executive director,

performing mostly administrative functions such as hiring and

recruitment tasks.    Petitioner testified, however, that he

eventually performed more religious duties for the temple as a

"religious functionary".    The temple had a rabbi and a cantor

working for it, both of whom performed the temple's religious

functions.   Petitioner stated that he never fulfilled the role of

either.

     Over the course of his 30 years with the temple, petitioner

assisted about 500 students with their Bar and Bat Mitzvah

preparation.   The substantive training was conducted by the

cantor and rabbi.    The cantor would teach the students how to

chant their Torah portions, and the rabbi would rehearse with

them on the pulpit.    Petitioner, however, would then "step-in" a

week or two before the Bar or Bat Mitzvah ceremony and assume

responsibility for enhancing the student's performance.     This

included such duties as helping students with memorization of

blessings, Torah readings, and elocution.
                                - 4 -


     Petitioner additionally performed as the temple's marriage

ceremony director.    Petitioner would meet with engaged couples to

discuss wedding preparations.    Petitioner's advice was mostly

organizational in nature and related to the specific details of

planning a wedding.   Petitioner frequently participated in the

wedding ceremony as a witness to the contract, but he never

officiated.

     Petitioner also assisted the rabbi with various tasks during

the religious services.   This included the duty of assigning

certain honors and responsibilities to congregants who performed

these tasks during services.    Petitioner also performed the

following other activities for the temple:    He managed cemetery

lots that the temple made available to its congregants; he

visited and conducted services for mourners; and he provided

weekly speakers for senior citizens.

     In 1970, petitioner began paying into an "annuity program"

provided by the temple.   Petitioner provided little detail

surrounding the plan or his employment relationship with the

temple, other than stating that he contributed 4 percent of his

yearly salary and the temple contributed 7 percent.    The pension

income at issue was derived from this plan.

     In 1992, petitioner received $3,705 in pension income, but

excluded that amount from gross income.    In the notice of
                                - 5 -


deficiency, respondent included this amount in petitioner's gross

income for the 1992 tax year.

     Petitioner included with his 1992 tax return a signed

statement stating that he was a retired clergyman and that the

entire pension income had been expended for the housing

allowance.5   Petitioner testified, however, that for other tax

years he included with his tax return the above signed statement,

but crossed out the prewritten word "clergyman" and wrote in the

words "religious functionary" in its place.

                              Discussion

     Petitioner bears the burden of proving that respondent's

determination is incorrect.    Rule 142(a); Welch v. Helvering, 290

U.S. 111, 115 (1933).   Section 107(2) provides that a "minister

of the gospel" may exclude from gross income "the rental

allowance paid to him as part of his compensation, to the extent

used by him to rent or provide a home."    In order for a minister

to exclude a parsonage allowance, three criteria must be met:

(1) The minister must provide services which are ordinarily the

duties of a "minister of the gospel"; (2) the excluded amounts

must actually be used to rent or otherwise provide a home; (3)

and the rental allowance must be properly designated.   See sec.

1.107-1(a), (b), and (c), Income Tax Regs.

     5
        Petitioner used a form-letter he received from the
Synagogue Administrators Association with the heading "Letter (B)
When All Of The Pension Has Been Used As A Parish Allowance".
                               - 6 -


     Respondent contends that the pension income should not be

excluded from petitioner's 1992 gross income for the reason that,

at the time petitioner contributed to the pension plan, he was

not a "minister of the gospel" for section 107 purposes.

Respondent also contends that the pension income was not properly

designated by the temple as a parsonage allowance, as required.

Respondent, however, does not question whether the funds were

actually used for housing or whether the provisions of section

107 have applicability to pension income.   See Rev. Rul. 75-22,

1975-1 C.B. 49; Rev. Rul. 63-156, 1963-2 C.B. 79.

     Petitioner does not claim that he was a rabbi or cantor.

Rather, petitioner suggests that he qualified as a "minister of

the gospel" because he performed duties as a "religious

functionary" for the temple.

Minister of the Gospel

     The Internal Revenue Code does not define the phrase

"minister of the gospel", and the statute's legislative history

contains no clear meaning of the term.   The regulations define

only what a minister does, but not what a minister is.

     Section 1.107-1(a), Income Tax Regs., states that in order

to qualify for the exclusion, the home or rental allowance must

provide remuneration for services which are ordinarily the duties
                               - 7 -


of a "minister of the gospel".6   The regulations under section

107 specify that the rules in section 1.1402(c)-5, Income Tax

Regs., apply in making this determination.    Section 1.1402(c)-

5(b)(2), Income Tax Regs., lists services which are considered

those of a minister:   (1) The performance of sacerdotal

functions; (2) the conduct of religious worship; and (3) the

performance of services in control, conduct, and maintenance of

religious organizations.   We also consider important whether the

taxpayer was duly ordained, commissioned, or licensed, and

whether the particular church or denomination recognized that

person as a minister or religious leader.    Knight v.

Commissioner, 92 T.C. 199, 204-205 (1989); Wingo v. Commissioner,

89 T.C. 922, 934-937 (1987).

     We now consider whether petitioner's responsibilities as a

"religious functionary" fell within the three types of services

of a minister set out in the regulations.    Petitioner's duties

are detailed in our findings of fact.   As the temple's employee,

most of petitioner's responsibilities related to some aspect of

the Jewish religion.   We note, however, these duties were more

     6
        While "minister of the gospel" refers to clergy of the
Christian faith, Congress did not intend to exclude those persons
who are equivalent of ministers in other religions. Salkov v.
Commissioner, 46 T.C. 190, 194 (1966). Rabbis and cantors of the
Jewish faith are considered ministers who can also qualify for
the parsonage exclusion. See Silverman v. Commissioner, 57 T.C.
727 (1972), affd. in an unreported case 32 AFTR2d 73-5379, 73-2
USTC par. 9546 (8th Cir. 1973); Salkov v. Commissioner, supra at
196-197.
                               - 8 -


organizational than religious in nature and did not require

performance from one who held ministerial authority.

     Equally revealing, however, were the religious rites and

ceremonies petitioner did not perform.   Petitioner admitted that

he never fulfilled the role of either rabbi or cantor.   The

record displays his lack of such responsibility.   Petitioner

assumed responsibility over the Bar and Bat Mitzvah students only

in the last week or two of their training and only to enhance the

efforts of the rabbi and cantor.   The rabbi and cantor, however,

held the main parochial responsibilities for the students'

training.

     Further, petitioner acted as the marriage ceremony director

and participated in wedding ceremonies as a witness.   His

responsibilities as director, however, were mostly secular in

nature.   While petitioner participated in wedding ceremonies, he

never officiated.   Further, petitioner assisted the rabbi with

various functions during religious services.   It was the rabbi,

however, not petitioner, who actually led those services for

which petitioner assisted.   Finally, although petitioner visited

and conducted services for mourners, he, presumably, did not

officiate at the funerals.

     As illustrated above, with the sole exception of conducting

services for mourners, petitioner did not regularly perform those

duties that ministers of the Jewish faith customarily perform.
                                - 9 -


See Silverman v. Commissioner, 57 T.C. 727, 731 (1972), affd. in

an unreported case 32 AFTR2d 73-5379, 73-2 USTC par. 9546 (8th

Cir. 1973) (a cantor's performance of the following duties were

considered ministerial:   Conducting religious worship,

administering sacerdotal functions, performing marriages,

officiating at funerals, leading services at houses of mourning,

and directing organizations within the congregation); Salkov v.

Commissioner, 46 T.C. 190, 195-196 (1966).

     We next consider whether petitioner was ordained,

commissioned, or licensed in his capacity as "religious

functionary".   The record demonstrates that he was not.

Petitioner admitted at trial that he was not an ordained rabbi or

a commissioned cantor.    The fact that petitioner was recognized

as a Fellow in Synagogue Administration is irrelevant to the

above determination.   First, petitioner did not hold this title

while he performed his duties with the temple.   Rather, he

received this honor sometime around 1987, about 7 years after he

left the temple.   Second, even if petitioner had received this

honor while performing services for the temple, this title would

not have established that petitioner was ordained, commissioned,

or licensed as a recognized religious official of the Jewish

religion.   Rather, as the words Fellow in Synagogue

Administration suggest, the designation reflects that petitioner
                              - 10 -


merely performed duties as an administrator, a primarily secular

function.

     Finally, we consider whether the temple considered

petitioner its religious leader.   We cannot find that it did, as

petitioner failed to present testimony or admissible evidence

establishing that the temple or anyone else viewed him that way.

     Accordingly, we find that petitioner failed to demonstrate

that he was a "minister of the gospel" as specified in the

regulations and case law.   As a judicial body we are loath to

evaluate ecclesiastical authority in the various religious

disciplines.   We emphasis that our opinion is based on the record

before us, and our finding should not diminish the importance of

petitioner's contributions to his community.

Designation of Rental Allowance

     To qualify for the parsonage exclusion, the amount paid to a

minister, to rent or otherwise provide a home, must be designated

as rental allowance pursuant to official action taken in advance

of such payment.   Sec. 1.107-1(b), Income Tax Regs.   The above

regulation states that a designation may be evidenced in an

employment contract, in minutes of or in a resolution by a

qualified organization, or in any appropriate instrument

evidencing such official action.   Without official designation,

no exclusion is allowable under section 107.   See Eden v.
                             - 11 -


Commissioner, 41 T.C. 605, 607 (1964); Mosley v. Commissioner,

T.C. Memo. 1994-457.

     Petitioner failed to demonstrate that the temple properly

designated the pension income as a parsonage allowance.

Completely missing from the record were details of the employment

arrangement in which he and the temple were engaged.   In fact,

petitioner presented no evidence which even tangentially relates

to the notion of official designation.

     Accordingly, we find that petitioner is not entitled to

exclude the pension income from his 1992 gross income under the

parsonage exclusion found in section 107(2).

     To reflect the foregoing,


                                         Decision will be entered

                                         for respondent.
