                       114 T.C. No. 32



                UNITED STATES TAX COURT



     JOHN W. AND FAYTHE A. MILLER, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 12310-98.               Filed June 23, 2000.


     Ps claimed dependency exemptions on their 1996
joint Federal income tax return without furnishing
SSN’s for their children, as required under sec.
151(e), I.R.C. Ps seek relief from the SSN requirement
because of their religious beliefs in opposition to
using SSN’s. Held: the SSN requirement is the least
restrictive means of achieving the Government’s
compelling interests in implementing the Federal tax
system in a uniform, mandatory way and in detecting
fraud in regard to dependency exemptions. Accordingly,
neither the Free Exercise Clause of the First Amendment
to the Constitution nor the Religious Freedom
Restoration Act of 1993, Pub. L. 103-141, sec. 2, 107
Stat. 1488, provides a basis for excepting Ps from the
SSN requirement.



John W. and Faythe A. Miller, pro se.

Elizabeth A. Owen, for respondent.
                                  - 2 -


                                 OPINION

     LARO, Judge:     This case is before the Court fully

stipulated.    See Rule 122.   Petitioners petitioned the Court to

redetermine respondent’s determination of a $1,391 deficiency in

Federal income tax for 1996.

     The issue in this case is whether requiring petitioners to

provide Social Security numbers (SSN’s) for their dependent

children as a condition to allowing their dependency deductions

violates petitioners’ right to free exercise of religion.      We

hold that it does not.

     Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the year in issue.      Rule

references are to the Tax Court Rules of Practice and Procedure.

Dollar amounts are rounded to the nearest dollar.

                               Background

     The stipulation of facts and the exhibits submitted

therewith are incorporated herein by this reference.    Petitioners

resided in Sugar Land, Texas, when the petition was filed.

     Petitioners are the natural parents of two children, whom

they claimed as dependents on their 1996 Federal income tax

return.   At the end of 1996, petitioners’ children were 8 and 5

years old.    Rather than provide SSN’s for their children on their

return, petitioners attached a notarized affidavit declaring
                               - 3 -

their religious objection to the use of identifying numbers for

their children.

     Petitioners believe that SSN’s are universal numerical

identifiers to be equated with the “mark of the Beast” warned

against in the Bible at Revelation 13:16-17.   Petitioners both

have SSN’s and used them on their 1996 tax return but wish to

avoid obtaining SSN’s for their children.

     Petitioners’ religious objections extend only to universal

identifiers and not to numbers issued for a discrete purpose.

Accordingly, petitioners have offered to obtain Individual

Taxpayer Identification Numbers (ITIN’s) for their children and

provide the ITIN’s on their return.    Respondent, however, refuses

to issue ITIN’s to petitioners’ children because respondent takes

the position that Treasury regulations permit issuance of ITIN’s

only to those who are ineligible to receive SSN’s.

     Except for the requirement that petitioners include their

children’s SSN’s on their return, petitioners have met all the

statutory requirements for claiming dependency exemptions in

1996.   Respondent concedes that petitioners have a sincerely held

religious belief which opposes the use of SSN’s for their minor

children, but respondent denies that he is required to

accommodate that belief in administering the dependency

exemption.
                                - 4 -

                             Discussion

I.   The SSN Requirement

     Under section 151, taxpayers are entitled to claim an

exemption for each dependent child.     However, section 151(e)

provides:   “No exemption shall be allowed under this section with

respect to any individual unless the TIN of such individual is

included on the return claiming the exemption.”1    Thus, without

providing TIN’s, petitioners cannot properly claim any section

151 exemptions for their children.

     Section 7701(a)(41) defines the term “TIN” for purposes of

the Internal Revenue Code to mean “the identifying number

assigned to a person under section 6109.”     Section 6109(d)

specifies that the SSN issued to an individual is the identifying

number of the individual, except as otherwise specified under

applicable regulations.    The regulations provide that an

individual required to furnish a TIN must use an SSN unless the

individual is not eligible to obtain an SSN.     See sec. 301.6109-

1(a)(ii)(A) and (B), Proced. & Admin. Regs.     The regulations

further specify that “Any individual who is duly assigned a

Social Security number or who is entitled to a Social Security


     1
      Sec. 151(e) was added to the Code by the Small Business Job
Protection Act of 1996 (SBJA), Pub. L. 104-188, sec. 1615(a)(1),
110 Stat. 1755, 1853, and is generally effective for returns due
after Sept. 19, 1996. However, for dependents claimed for the
1996 taxable year, the Act requires TIN’s for any children born
on or before Nov. 30, 1996. See SBJA sec. 1615(d)(2), 100 Stat.
1853.
                                 - 5 -

number will not be issued an IRS individual taxpayer

identification number.”   Sec. 301.6109-1(d)(4), Proced. & Admin.

Regs.2

     SSN’s are issued by the Social Security Administration of

the U.S. Department of Health and Human Services (the SSA) upon

application by a citizen, qualified alien, or by a parent on

behalf of a qualified child.    See generally 20 C.F.R. secs.

422.101 to 422.112 (2000).     The issuance of an SSN entails

several consequences, including (i) the creation of a record at

the SSA of that person’s earnings for purposes of determining the

old-age and other benefits to which the person may be entitled,

and (ii) establishing a unique numerical identifier for the

individual for use by a variety of governmental and private

entities.3   When the SSN was first chosen as the identification


     2
      Sec. 301.6109-1(d)(4), Proced. & Admin. Regs., was added to
the regulations by T.D. 8671, 1996-1 C.B. 314, and is effective
for any return, statement, or other document required to be filed
after Dec. 31, 1995. Previously, respondent had issued ITIN’s to
taxpayers who claimed religious objections to the use of SSN’s.
See Wolfrum v. Commissioner, T.C. Memo. 1991-370, affd. 972 F.2d
350 (6th Cir. 1992).
     3
      In addition to tax administration, SSN’s are used by
Federal and State Governments to administer public assistance
programs, veteran’s benefits, driver’s licences, motor vehicle
registrations, Federal student grants and loans, child support
obligations, the Selective Service System, blood donations, and
jury selection. SSN’s are also commonly used in the private
sector by credit bureaus, banks, schools, and medical
recordkeepers. See Komuves, “We’ve Got Your Number: An Overview
of Legislation and Decisions to Control the Use of Social
Security Numbers as Personal Identifiers”, 16 J. Marshall J.
                                                   (continued...)
                               - 6 -

number for tax purposes, the rationale for the choice was that

most people already had an SSN and thus the use of that pre-

existing number would relieve taxpayers of an additional burden.

See H. Rept. 1103, 87th Cong., 1st Sess. 3 (1961); S. Rept. 1102,

87th Cong., 1st Sess. 3 (1961), 1961-2 C.B. 475.

II.   The Religious Freedom Restoration Act of 1993

      Petitioners assert that requiring them to furnish SSN’s for

their children as a condition to obtaining the dependency

exemptions is an unconstitutional intrusion on the free exercise

of their religion.   The First Amendment to the Constitution

provides, in relevant part, that:   “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof.”   (Emphasis added.)

      In Bowen v. Roy, 476 U.S. 693 (1986), the Supreme Court

considered whether a Federal statute requiring applicants for

Federal welfare assistance to obtain and furnish SSN’s for their

children was constitutional as applied to two Native American

applicants who held a religious belief that the use of the number

would harm their daughter’s spirit.    Part III of the opinion of

Chief Justice Burger, joined by two other Justices, rejected the

strict scrutiny test applied by the trial court, concluding that

there is no violation of the Free Exercise Clause of the First



      3
      (...continued)
Computer & Info. L. 529 (Spring 1998).
                                  - 7 -

Amendment when the Government demonstrates “that a challenged

requirement for government benefits, neutral and uniform in its

application, is a reasonable means of promoting a legitimate

public interest.”   Id. at 708.    The four dissenting Justices

would have required the Government to show that its refusal to

accommodate the appellants’ religious objection to the use of

SSN’s served a compelling State interest.4

     In Employment Div. v. Smith, 494 U.S. 872 (1990), the

Supreme Court reviewed a claim that the Free Exercise Clause

permitted the ingestion of a prohibited drug, peyote, in the

context of the worship of the Native American Church.     In so

doing, the Court held that a “neutral, generally applicable law

need not be justified by a compelling governmental interest even

if the law has the incidental effect of burdening a particular

religious practice.”   Id. at 886 n.3.

     In response to Smith, Congress enacted the Religious Freedom

Restoration Act of 1993 (RFRA), Pub. L. 103-141, sec. 2, 107

Stat. 1488, 42 U.S.C. secs. 2000bb to 2000bb-4 (1994).5     A

person whose religious exercise is burdened in violation of the


     4
      Justice White wrote separately from the other three
dissenters, stating simply that he believed Thomas v. Review Bd.,
450 U.S. 707 (1981), and Sherbert v. Verner, 374 U.S. 398 (1963),
to be controlling.
     5
      In City of Boerne v. Flores, 521 U.S. 507 (1997), the
Supreme Court held that RFRA was unconstitutional as applied to
State and local laws. We assume without holding that the RFRA is
constitutional as applied to the Federal Government.
                               - 8 -

RFRA “may assert that violation as a claim or defense in a

judicial proceeding and obtain appropriate relief against a

government”.   RFRA, 42 U.S.C. sec. 2000bb-1(c).   A claimant under

the RFRA must show that the Government “substantially burdened”

his or her free exercise of religion.   RFRA, 42 U.S.C. sec.

2000bb-1(a).   Upon such a showing, the Government must

demonstrate that the application of the burden to the person (i)

is in furtherance of a compelling governmental interest and (ii)

is the least restrictive means of furthering that compelling

interest.   RFRA, 42 U.S.C. sec. 2000bb-1(b).   The Government’s

burden is both of production and persuasion.    RFRA, 42 U.S.C.

sec. 2000bb-2(3).

III. Substantial Burden

     Petitioners seek dependency exemptions which, over a number

of years, may be worth several thousands of dollars to them.      In

order to secure this benefit, which is available to similarly

situated parents, petitioners must obtain and use SSN’s for their

children.   Respondent concedes this would violate a central tenet

of petitioners’ religion.   Thus, petitioners’ argument that the

SSN requirement imposes a cognizable burden on their freedom of

religion may find some support under First Amendment case law.

See Thomas v. Review Bd., 450 U.S. 707, 717-718 (1981) (“Where

the State conditions receipt of an important benefit upon conduct

proscribed by a religious faith * * * a burden upon religion
                               - 9 -

exists.").   But see Patterson v. Commissioner, T.C. Memo. 1989-

193, affd. without published opinion 896 F.2d 544 (2d Cir. 1990)

(imposing higher tax rates on taxpayer who could not divorce or

legally separate because of his religious beliefs was not an

unconstitutional burden on his free exercise rights); In re

Turner, 193 Bankr. 548 (Bankr. N.D. Cal. 1996) (requiring use of

SSN on bankruptcy forms does not impose a “substantial burden”

under the RFRA on form preparer with religious objections to use

of the number).   Nevertheless, we do not find it necessary to

determine whether petitioners’ free exercise of religion is

substantially burdened by the SSN requirement because, as

discussed below, respondent has satisfied the compelling interest

test.

IV.   Compelling Government Interest Test

      Under the RFRA, the Government may impose a substantial

burden on the free exercise of religion if it demonstrates that

the application of the burden is the least restrictive means of

achieving a compelling governmental interest.    See RFRA, 42

U.S.C. sec. 2000bb-1(b) (1994); Adams v. Commissioner, 110 T.C.

137 (1998), affd. 170 F.3d 173 (3d Cir. 1999).

      We find that the Government has a compelling interest in

effectively tracking claimed dependency exemptions.    Through

cross-matching of the SSN’s respondent can easily identify

whether an SSN has been claimed on another return for the year,
                               - 10 -

thereby detecting erroneous or fraudulent claims.   For example,

SSN’s make it easier for the IRS to determine whether divorced

parents are both trying to claim their children as dependents.

Congress acknowledged this benefit in 1994, when it eliminated an

exception to the TIN requirement for dependents below a certain

age:

       The requirement that TIN’s be provided with respect to each
       dependent claimed on a tax return has significantly reduced
       the improper claiming of dependents. Requiring that TIN’s
       be supplied regardless of the age of the dependent will
       further reduce the improper claiming of dependents. [H.
       Rept. 103-826, at 196 (1994) (discussing sec. 742(b) of the
       Uruguay Round Agreements Act, Pub. L. 103-465, 108 Stat.
       4809, 5010 (1994)).]

The use of SSN’s also helps ensure that there is indeed a person

in existence to support the claimed exemption.   See U.S. General

Accounting Office, Tax Administration IRS Could Do More to Verify

Taxpayer Identities (Pub. No. GAO/GGD 95-148) (Aug. 30, 1995)

(describing the difficulty in tracking individuals without

correct TIN’s in the IRS computer system).

       Enforcing the SSN requirement also supports the Government’s

compelling interest in implementing the Federal tax system in a

uniform, mandatory way.    See Hernandez v. Commissioner, 490 U.S.

680 (1989); United States v. Lee, 455 U.S. 252 (1982); Adams v.

Commissioner, supra.    This interest extends both to the

imposition of taxes and to the administration of the tax system.

See Steckler v. United States, 81 AFTR 2d 98-1049, at 98-1052,

98-1 USTC par. 50,219, at 83,408 (E.D. La. 1998) (requirement
                               - 11 -

under section 3401(a)(1) that taxpayer’s SSN be disclosed when

redeeming Treasury bonds was the least restrictive means of

meeting the Government’s compelling interests “in collecting

taxes fairly, in administering its tax system properly, and in

making sure all citizens participate in that system on equal

terms”).

     Petitioners argue that enforcing the SSN requirement against

them is not the least restrictive means of achieving these

government interests because the IRS waives the SSN requirement

for taxpayers who qualify for exemption from Social Security

taxes under section 1402(g).   This practice was acknowledged in

the legislative history accompanying the enactment of the TIN

requirement of former section 6109(e),6 in the Tax Reform Act of

1986, Pub. L. 99-514 100 Stat 2085:

     The conferees note that certain taxpayers, because of their
     religious beliefs, are exempted from Social Security self-
     employment taxes (section 1402(g)). The conferees intend
     that these taxpayers and their dependents who currently
     acquire their TIN’s from the IRS continue to be permitted to




     6
      Former sec. 6109(e) required a taxpayer who claimed the
deduction for the dependency exemption under sec. 151(c) to
provide the dependent's TIN. Sec. 151(e) requires the same
information as did former sec. 6109(e) but changes the
enforcement mechanism for the TIN requirement from an information
reporting penalty to a disallowance of the deduction.
                              - 12 -

     do so.7 [H. Conf. Rept. 99-841 (Vol. II), at II-790 (1986),
     1986-3 C.B. (Vol. 4) 1, 790.]

We do not find that this IRS practice establishes that

accommodation is feasible in this case.    Taxpayers who are

exempted from Social Security employment taxes under section

1402(g) include only those who are members of an established

religious sect opposed to public or private insurance and who

have waived Social Security benefits.8    See Wolfrum v.

Commissioner, T.C. Memo. 1991-370.     The creation of a general

religious exemption to the dependent TIN requirement would have a

far greater impact on respondent’s administration of the

dependency exemption and would increase the risk of fraudulent

claims being made.9   We cannot say that the balance struck by

respondent in excusing only those who are statutorily exempted

from participation in the Social Security system is

constitutionally impermissible.



     7
      Though the legislative history refers to an IRS practice of
issuing ITIN’s to the dependents of taxpayers exempted under sec.
1402(g), respondent acknowledged on brief that the IRS’
longstanding practice has been to excuse these taxpayers from the
TIN requirement entirely. See also Chief Counsel Advice
1999-50-034 (Oct. 21, 1999).
     8
      Petitioners acknowledge that they are not eligible to claim
exemption under sec. 1402(g).
     9
      In 1997 alone there were more than   2.5 million instances
where TIN’s required to claim dependency   exemptions and the
Earned Income and Child Care Tax Credits   were either missing or
did not match IRS or SSA records for the   name used. See I.R.S.
News Release, IR-98-25 (Mar. 25, 1998).
                               - 13 -

     We also reject petitioners’ suggestion that respondent could

accommodate petitioners’ religious beliefs by issuing ITIN’s to

petitioners’ children.   We find that issuing ITIN’s would be a

less effective means of detecting fraud than requiring SSN’s.

For one, issuing an ITIN to an individual who is otherwise

eligible to receive an SSN creates the risk that the individual

will thereafter obtain an SSN.   The individual will then have two

TIN’s, each intended by the system to be a unique identifier.     In

such case, cross-matching of the individual’s TIN’s would not

reveal the existence of a duplicate claim.

     We have considered all of the other arguments made by

petitioners and, to the extent we have not addressed them, find

them to be without merit.

     In accordance with these findings, we hold that petitioners

are not exempt from furnishing SSN’s for their children in

claiming them as dependents.

                                        Decision will be entered for

                                   respondent.
