                          T.C. Memo. 2000-118



                     UNITED STATES TAX COURT



             MICHAEL AND MARLA SKLAR, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 1556-97.               Filed April 5, 2000.


     Michael Sklar, pro se.

     Mark A. Weiner, for respondent.


                          MEMORANDUM OPINION


     NAMEROFF, Special Trial Judge:     Respondent determined a

deficiency in petitioners’ Federal income tax for the taxable

year 1994 of $3,696 plus an addition to tax under section

6651(a)(1)1 of $408.20.    In the notice of deficiency, respondent

disallowed petitioners’ claimed charitable contribution

deductions of $13,240.     The explanation in the notice of



     1
        All section references are to the Internal Revenue Code
in effect for the year at issue.
                               - 2 -


deficiency stated:   “Since these costs are personal tuition

expenses, they are not deductible.”    In a timely filed petition,

petitioners contend that they are entitled to the claimed

charitable contribution deductions on the grounds that the

amounts in question are similar to those paid for auditing to the

Church of Scientology, which petitioners allege the Internal

Revenue Service (IRS) has allowed as charitable contributions.

Thus petitioners contend that respondent’s position is a

violation of the Establishment Clause of the First Amendment to

the Constitution of the United States.

Background

     Some of the facts have been stipulated and are so found.

Petitioners resided in North Hollywood, California, at the time

of the filing of their petition.   The following facts are not in

dispute.

     On their 1994 joint Federal income tax return, which was

filed on November 27, 1995, petitioners claimed a deduction for

charitable contributions in the amount of $23,996.   Petitioners’

1994 return was examined by respondent, and the charitable

contribution deduction was questioned.   During the examination,

petitioners provided copies of checks totaling $10,756 that

qualified as charitable contributions, and this amount was not

disallowed.
                                - 3 -


     In addition, petitioners provided copies of checks totaling

$7,000 paid as tuition to the Yeshiva Rav Isacsohn Torath Emeth

Academy (Yeshiva Rav Isacsohn).    Petitioners also provided checks

totaling $17,146 in tuition payments to the Emek Hebrew Academy

(Emek).    Yeshiva Rav Isacsohn and Emek are collectively referred

to as the schools.    The amounts paid to the schools in 1994 total

$24,146.

     In July 1996, during the examination of their 1994 return,

petitioners presented letters from each school which acknowledge

receipt of the amounts paid and state unequivocally that the

payments were applied toward the tuition of petitioners’ children

for their religious and secular education.    Each letter also

states that the school estimates that the total education

comprised 55 percent religious education and 45 percent secular

education.    According to petitioners, they calculated their

claimed 1994 “religious education” deduction in the amount of

$13,240 by multiplying by 55 percent the total tuition payments

to the schools.2

     Emek and Yeshiva Rav Isacsohn are organizations recognized

to be exempt from Federal income tax under section 501(c)(3).

They are classified for Federal income tax purposes as

organizations that are not private foundations as defined in


     2
          There is a $40 unexplained discrepancy.
                                 - 4 -


section 509(a) because they are organizations described in

section 170(b)(1)(A)(ii).   In short, they are orthodox Jewish day

schools, and their students receive a complete dual curriculum in

religious and secular studies.    Both schools issue academic

grades in their secular and religious education programs.    During

1994, three of petitioners’ minor children attended Emek and one

minor child attended Yeshiva Rav Isacsohn.

     The schools establish annually the amount of tuition for

each student, payment of which is mandatory.    There are also

other mandatory payments for, inter alia, special events and

application processing.   Partial scholarships are provided for

students with financial needs.    Tuition payments are recorded as

such in the schools’ books, and charitable contributions to the

schools are recorded as “donations”.

     In the petition, petitioners makes no allegations in

connection with the addition to tax for delinquency.    In

petitioners’ response to a motion for summary judgment filed by

respondent and subsequently denied, petitioners state:

     The primary reason for filing after October 16, 1995, was
     lack of sufficient time to correctly prepare the return due
     to high work-related volume petitioner Michael Sklar, who is
     the petitioner knowledgeable in the taxable affairs of
     petitioners and regularly prepares petitioners’ returns.
     The reason this was not stated in the original petition is
     that petitioners felt that it was a moot point as, in the
     opinion of petitioners, there is no deficiency.

Petitioners presented no further evidence on this issue.
                               - 5 -



Discussion

     The law is well settled that tuition paid for the education

of the children of the taxpayer is a family expense, not a

charitable contribution to the educating institution.    See DeJong

v. Commissioner, 309 F.2d 373, 376 (9th Cir. 1962), affg. 36 T.C.

896 (1961).   A tuition payment to a parochial school is generally

not considered a charitable contribution because the taxpayer

making the payment receives something of economic value, i.e.,

educational benefits, in return.   See Winters v. Commissioner,

468 F.2d 778, 781 (2d Cir. 1972), affg. T.C. Memo. 1971-290.    The

payment proceeds primarily from the incentive of anticipated

benefits to the payor beyond the satisfaction which flows from

the performance of a generous act.     See DeJong v. Commissioner,

supra at 376.   The Court of Appeals for the Ninth Circuit further

stated:

     The value of a gift may be excluded from gross income only
     if the gift proceeds from a “detached and disinterested
     generosity” or “out of affection, admiration, charity or
     like impulses” and must be included if the claimed gift
     proceeds primarily from “the constraining force of any moral
     or legal duty” or from “the incentive of anticipated benefit
     of an economic nature.” We must conclude that such criteria
     are clearly applicable to a charitable deduction under
     § 170.

Id. at 379.

     It is clear in this case that petitioners’ payments to the

schools were not made out of detached and disinterested

generosity or out of affection, admiration, charity, or like
                                - 6 -


impulses.   They were intended as payment in the nature of tuition

for petitioners’ children, a personal expense.   These mandatory

payments were received as payments for tuition by the schools.

Therefore, they do not qualify as charitable contribution

deductions.

     In Hernandez v. Commissioner, 490 U.S. 680 (1989), the

Supreme Court held on the record presented that payments for

“auditing” to the Church of Scientology were not deductible as

charitable contributions because they represented a quid pro quo;

i.e., the payor was receiving goods or services in return for the

payment.    The taxpayer in Hernandez had argued, inter alia, that

the disallowance of the auditing payments represented an

impermissible failure by the IRS to consistently enforce section

170, relying on various revenue rulings, such as Rev. Rul. 70-47,

1970-1 C.B. 49, pertaining to such things as pew rents, building

fund assessments, and periodic dues.    See id. at 703.   However,

the Supreme Court rejected this contention because the record

therein did not support it.

     Petitioners contend that the terms of a closing agreement

between the Commissioner and the Church of Scientology are

relevant and will show that the Commissioner has agreed to allow

charitable contributions for all or a percentage of auditing

payments, and that the disallowance of the charitable

contribution deductions herein in light of the settlement with
                                - 7 -


the Church of Scientology is in violation of the First Amendment.

Petitioners have made a proffer of evidence tending to conform to

their allegations.3

     In her dissenting opinion in Hernandez v. Commissioner,

supra at 705, Justice O’Connor stated:

          It must be emphasized that the IRS’ position here is
     not based upon the contention that a portion of the
     knowledge received from auditing or training is of a
     secular, commercial, nonreligious value. Thus, the denial
     of a deduction in these cases bears no resemblance to the
     denial of a deduction for a religious-school tuition up to
     the market value of the secularly useful education received.
     See Oppewal v. Commissioner, 468 F.2d 1000 (1st Cir. 1972);
     Winters v. Commissioner, 468 F.2d 778 (2d Cir. 1972); DeJong
     v. Commissioner, 309 F.2d 373 (9th Cir. 1962). * * *


     There is nothing in the record to show that petitioners’

situation is analogous to that of the members of the Church of

Scientology.   The Church of Scientology and the schools involved

in this case are not identical in their organization, structure,

or purpose.    Auditing, as defined in Hernandez v. Commissioner,

supra, is not the same as a general education, which may include

some percentage for religious education.    Thus we perceive no

denominational preference to require any inquiry into a purported

violation of the Establishment Clause.   As stated earlier,


     3
        Petitioners offered into evidence 16 documents with
respect to their contentions. Respondent objected to these
documents on various grounds, and we took the objections under
advisement. We have determined that the documents are not
admissible because they are irrelevant to this case.
                               - 8 -


deductions have been generally disallowed for payments made in

exchange for educational benefits, regardless of faith.     See

Oppewal v. Commissioner, 468 F.2d 1000 (1st Cir. 1972), affg.

T.C. Memo. 1971-273; Winters v. Commissioner, supra; DeJong v.

Commissioner, supra.   The taxpayers in those cases were similarly

situated with petitioners, and petitioners have not established

that they are similarly situated with the members of the Church

of Scientology who make payments for auditing.     Petitioners’

reliance on Hernandez and the concept of consistent

interpretation and enforcement is rejected.

     We now turn to the question of whether petitioners are

liable for the addition to tax for delinquency under section

6651(a)(1).   Unless shown to be for reasonable cause and not due

to willful neglect, failure to file a return on the due date

generally results in an addition to tax of 5 percent for each

month during which such failure continues, but not exceeding 25

percent in the aggregate.   See sec. 6651(a)(1).

     Petitioners contend that petitioner Michael Sklar was simply

too busy to timely file their tax return for 1994.     After

extensions, their tax return was due on October 15, 1995, but was

not filed until November 16, 1995.     Accordingly, in the notice of

deficiency, respondent determined the delinquency addition to tax

based on 10 percent of the deficiency.    On the tax return,

petitioner Michael Sklar is identified as a C.P.A., while
                               - 9 -


petitioner Marla Sklar is identified as a teacher.       Petitioner’s

argument that he was simply too busy to file his Federal income

tax return for 1994 by October 15, 1995, does not constitute

reasonable cause for his failure to file.     See Dustin v.

Commissioner, 53 T.C. 491, 507 (1969), affd. 467 F.2d 47 (9th

Cir. 1972); Olsen v. Commissioner, T.C. Memo. 1993-432.

       To reflect the above,



                                             Decision will be entered

                                       for respondent.
