RELIGIOUS OBJECTIONS TO USE OF SOCIAL SECURITY NUMBERS ON TAX RETURNS

CRS Report for Congress
Religious Objections to Use of Social Security
Numbers on Tax Returns
Marie B. Morris
Legislative Attorney
American Law Division
Summary
Social security numbers have been required on tax returns since the early 1960s.
There are a number of citizens who have religious objections to participation in social
insurance systems, and Congress has chosen to accommodate certain groups' religious
beliefs. Separately, there are other citizens who have religious objections to being
identified by government-provided numbers, such as social security numbers, but to date
Congress has not chosen to accommodate their beliefs. This paper briefly outlines the
history of the requirements to use social security numbers on tax returns, discusses some
of the statutory exemptions provided for certain groups which object to participation in
social security, considers some case law and the effect of the Religious Freedom
Restoration Act on the issue, and comments on existing practice in administering
taxpayer identification numbers within the IRS. Although Congress could conceivably
adopt a non-numerical system for taxpayer identification, we are unaware of any attempts
to do so. In the absence of statutory authorization to avoid furnishing a social security
number on a tax return, taxpayers can be penalized for failing to comply with the
statutory requirements.
History of Using Social Security Numbers on Tax Returns
In October 1961, Congress authorized the Internal Revenue Service to require
identifying numbers on tax returns.¹ Fifteen years later, the Tax Reform Act of 1976²
codified IRS practice that the social security number was to be used as the identifying
number for individuals; however, it was not until after the enactment of the Tax Reform³
Act of 1986 that taxpayers claiming a dependency exemption were required to provide
a social security number for all dependents age 5 and over. In 1990 the IRS reported that

¹P.L. 87-397, §1, enacted a new IRC § 6109.
²P.L. 94-455, §1211; IRC § 6109(d).
³P.L. 99-514, § 1524; then IRC § 6109(e).
Congressional Research Service ˜ The Library of Congress

7.5 million fewer dependents were claimed on tax returns in 1987 than in 1986.⁴ Since
that time, the age has been lowered several times. Effective for tax year 1995, all
dependents claimed on a tax return were required to have a taxpayer identification⁵
number. In 1996, supplying a dependent's taxpayer identification number was made part
of the requirements for claiming the dependency exemption.⁶ The 1996 legislation
explicitly authorized the IRS to deny the dependency exemption if no taxpayer
identification was furnished. It was recognized that the change would have consequences
for other deductions such as head of household filing status, the dependent care credit,
and, more recently, the child credit.⁷
Exemptions from Participating in Social Security Based on Religion
There are a number of United States citizens who have religious objections to
participation in the social security system. Some of them have been accommodated by the⁸
social security laws. For example, IRC § 1402(g) allows an exemption from the social
security self-employment act to members of certain religious sects which are
conscientiously opposed to private or public insurance and which make provision for care
of their dependent members; and IRC § 1402(e) allows certain ministers, members of
religious orders, and Christian Science practitioners who are opposed to the acceptance
of social security benefits because of religious principles to avoid self-employment taxes
on income from their performing religious services.
In 1982, the Supreme Court held that without an explicit statutory exemption, an
employer who qualified for the IRC § 1402(g) self-employment exemption on his own
income could not use his religious beliefs to avoid paying social security on the wages of
his employees who were members of the same sect and who shared his religious objections⁹
to social security. Congress is permitted, but not required, to accommodate religious
objections to social security coverage. Congress granted those employers tax relief in

1988, for tax years beginning in 1989.¹⁰

To date there are no statutory exemptions for failing to provide a taxpayer
identification number when required on a tax return.
Case law and the Religious Freedom Restoration Act
Although the Supreme Court has not considered a case involving a taxpayer’s
objection to providing a dependent’s social security number, there is relevant precedent.

⁴46 Tax Notes 1083 (February 26, 1990).
⁵P.L. 103-465, § 742.
⁶P.L. 104-188, § 1615, added IRC § 151(e).
⁷See Staff of the Joint Committee on Taxation, General Explanation of Tax Legislation Enacted
in the 104^th Congress, JCS-12-96, at 246-247 (1996).
⁸Added in 1960 by P.L. 86-778, § 105(c)(1).
⁹United States v. Lee, 455 U.S. 252 (1982).
¹⁰Technical and Miscellaneous Revenue Act of 1988, P.L. 100-647, § 8007, enacting IRC § 3127.

In Bowen v. Roy, 476 U.S. 693 (1986), parents of a Native American child challenged the
constitutionality of using social security numbers in the federal food stamp and AFDC
programs. The parents believed that using a number to identify their daughter would rob
her spirit and prevent her from attaining greater spiritual power. The Supreme Court held
that the statutory requirement that applicants provide a social security number as a
condition of eligibility for the benefits did not violate the free exercise clause, which
protects the right to believe, but not necessarily the right to engage in all religious
practices. The Court found that the free exercise clause protected individuals from certain
forms of governmental compulsion, but it did not give the individual a right to dictate the
conduct of the government's internal procedures. The Court stated
Governments today grant a broad range of benefits; inescapably at the same
time the administration of complex programs requires certain conditions and
restrictions. Although in some situations a mechanism for individual
consideration will be created, a policy decision by a government that it wishes
to treat all applicants alike and that it does not wish to become involved in case-
by-case inquiries into the genuineness of each religious objection to such
condition or restrictions is entitled to substantial deference. Moreover,
legitimate interests are implicated in the need to avoid any appearance of
favoring religious over nonreligious applicants. 476 U.S. at 707.
The Court suggested that if the statute had created a mechanism for individualized
exemptions, the government's refusal to extend the exemption for religious reasons might
be a violation of the free exercise clause. However, where the statute was facially neutral
and applied to all applicants with no provision for individual exemptions, and where use
of the social security number clearly promoted a legitimate and important public interest,
the Court found no violation. The Court noted that approximately 3.8 million families
received AFDC benefits and approximately 20 million people received food stamps.
Calling the size of these programs “of truly staggering magnitude,” the Court found the
use of social security numbers important to the administration of these programs.
The dissenting justices objected to the test used by the majority. The dissenters
thought that the government had made a case that there was a compelling state interest in
requiring the use of social security numbers, but the dissenters would also have required
the government to show that granting a religious exemption to those who legitimately
object to providing a social security number would harm its compelling interest in
preventing welfare fraud.
Under the test used by the majority in Bowen v. Roy, the requirement that social
security numbers be provided for dependents on tax returns may appear to be at least as
important and compelling in the administration of the income tax as it was found to be for
the administration of the food stamp and AFDC programs. The number of tax returns filed
and the number of dependents claimed on tax returns dwarf the number of welfare
recipients. Unique identifiers are important to the integrity of the system. If Bowen v. Roy
is still the test to be applied, the government would appear to be under no obligation to
waive the requirement that taxpayers furnish a social security number for their dependents
in order to claim the dependency exemption and other tax benefits flowing from the ability
to claim such an exemption.

The Religious Freedom Restoration Act, P.L. 103-141, 42 U.S.C.A. 2000bb, et seq,
was enacted in 1993. It requires that a statute or regulation of general applicability not
burden a person's free exercise of religion unless it is essential to further a compelling
governmental interest and does so by the least restrictive means. This is essentially the test
for which the dissenters argued in Bowen v. Roy. The purpose of the Religious Freedom
Restoration Act was to restore the interpretation of the free exercise clause prior to the
Supreme Court decision in Employment Division, Oregon Department of Human¹¹
Resources v. Smith. Since Bowen v. Roy predates that decision, it may be that the
Religious Freedom Restoration Act was not intended to affect the Bowen v. Roy decision;
however, the Bowen v. Roy decision did not require the government to demonstrate that
requiring a social security number is the least restrictive means of ensuring the integrity of¹²
the tax system. Although City of Boerne v.Flores has held the Religious Freedom
Restoration Act to be unconstitutional as applied to the states, the Supreme Court has not
decided the constitutionality of the Act as applied to the federal government.
Lower courts reviewing challenges to social security tax laws and to laws requiring
furnishing of social security numbers have assumed the constitutionality of the Act, have
held that the government has a compelling interest in collecting the tax, and have stated
that payment¹³ or social security number¹⁴ requirement at issue was the least restrictive
means of furthering that interest. A number of taxpayers have litigated their religious
objections to supplying a dependent’s social security number in order to claim a
dependency exemption for their child. In Miller v. Commissioner, 114 T.C. No. 32 (June
23, 2000), the parents attached a notarized affidavit to their tax returns stating their
religious objection to using identifying numbers for their two children. The parents
believed that social security numbers represented “the mark of the beast” warned against
in the Bible at Revelations 13:16-18. Except for supplying the social security numbers, the
parents met all the statutory requirements for claiming the children as dependents. The
Tax Court examined the statutory requirements, Bowen v. Roy, and the Religious Freedom
Restoration Act, and found that although the taxpayers’ free exercise of religious was
burdened by the requirement, the government has a compelling interest in effectively
tracking claimed dependency exemptions. The court also examined the statutory
accommodations of religious opposition to participation in the social security system and
found that a general religious exemption to the social security number requirement would

¹¹494 U.S. 872 (1990).
¹²521 U.S. 507, 117 S.Ct. 2157 (1997).
¹³Browne v. United States, 22 F. Supp.2d 309 (Vt. 1998); Adams v. Commissioner, 110 T.C. 137
(1998); Kennedy v. Rubin, 77 AFTR2d 558, 1995 U.S. Dist. Lexis 19834 (1995); Packard v.
United States, 7 F. Supp.2d 143 (Ct. 1998).
¹⁴Droz v. Commissioner, 48 F.3d 1120 (9^th Cir. 1994) (imposing self-employment taxes on
taxpayer with sincere religious objection to social security system burdened taxpayer's free exercise
of religion but was not unconstitutional); Steckler v. U.S., 98-1 USTC 50,219 (E.D. La
1998)(automatic withholding on taxpayer who refused to supply a social security number when
redeeming Treasury bonds is the least restrictive means of tracking taxable income even though use
of a social security number was a substantial burden on the exercise of taxpayer's religious beliefs);
In re Floyd and Turner, 193 B.R. 548 (1996)(requiring a bankruptcy petition preparer to furnish
his social security number is the least restrictive means of tracking preparers nationwide); Seaworth^th
v. Pearson, 203 F.3d 1056 (8 Cir. 2000)(an employer may deny employment to those who, for
religious reasons, refuse to provide a social security number).

have a far greater impact on administration of the dependency exemption and would
increase the risk of fraudulent claims being made. The court ruled that using alternate
numbers, which the parents had proposed, would not serve the purpose of being able to¹⁵
cross-match a series of unique identifiers.
Administrative Exception to TIN requirement
The 1986 Blue Book¹⁶ suggested that there is an administrative procedure for
obtaining a taxpayer identification number for those who are exempted from social security
self-employment taxes under IRC § 1402(g):
Congress noted that certain taxpayers, because of their religious beliefs, are
exempted from the social security self-employment taxes (sec. 1402(g)).
Congress intended that these taxpayers and their dependents who currently
acquire their TINs from the IRS continue to be permitted to do so. It was the
intent of Congress that these taxpayers continue to be exempted from the
general requirement of obtaining a social security number from the Social
Security Administration. Others of these taxpayers obtain their TINs under
special procedures with the Social Security Administration. Congress intended
that these procedures continue to be available to these taxpayers.¹⁷
In Letter Ruling 199950034, the IRS discussed its practice of exempting those
members of recognized religious groups who have waived participation in the social
security system from providing social security numbers or taxpayer identification numbers
for their dependents. The memorandum contained in the letter ruling argued that the
quoted language justified the IRS’ practice of not requiring dependent social security
numbers for children of those with IRC § 1402(g) exemptions. Interestingly, in order to
obtain the 1402(g) exemption, members of the recognized religious groups must file IRS
Form 4029 “Application for Exemption From Social Security and Medicare Taxes and
Waiver of Benefits,” and the form requires the applicant to obtain a social security number
before filing the form.
The IRS does issue certain non-social security taxpayer identification numbers.
Among these are ITINs, individual taxpayer identification numbers used by nonresident
aliens and resident aliens ineligible to work in the U.S.; ATINs, temporary adoption
identification numbers for children who are placed for adoption by an authorized
placement agency, when the child does not already have a social security number; PTINs,
preparer tax identification numbers for tax preparers to use on returns they are paid to
prepare; and EINs, employer identification numbers, which are generally used by
businesses.

¹⁵See also Davis v. Commissioner, T.C. Memo 2000-210 (July 10, 2000); Kocher v.
Commissioner, T.C. Memo 2000-238 (August 4, 2000); FSA 199935006 (IRS ruling concluding
taxpayers may not refuse on religious grounds to provide social security number for their
dependents.
¹⁶Staff of the Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1986
at 1286-1287 (1987).
¹⁷ Id.

Even if the IRS had a system for providing a non-social security number to objecting
taxpayers, it is not clear that this would help taxpayers who have a religious objection to
having any sort of government-furnished number. In Callahan v. Woods¹⁸, the Court of
Appeals recognized that obtaining a social security number was a substantial burden on the
free exercise of religion for those who believe that such numbers are the “mark of the
beast.” Although the court recognized the government's compelling interest in using the
social security number, it required the government to demonstrate that granting Callahan
an exemption from the requirement of having a social security number in order to obtain
welfare benefits would impede the government's efficient operation of the program.
Although the case law does not reveal whether the government was able to make such a
showing in Callahan's case, the tax system would be heavily burdened if a large number of
religious objectors failed to use some sort of identifying number.
Congressional Power to Act
United States v. Lee suggests that Congress is not prohibited from passing a law
establishing an alternative (non-numerical) system for taxpayers who have religious
objections to having a number or having a number for their dependents, but the free
exercise clause does not require that the tax system provide such an accommodation. As
the Supreme Court stated in Bowen v. Roy,
Appellees may not use the Free Exercise Clause to demand Government
benefits, but only on their own terms, particularly where that insistence works
a demonstrable disadvantage to the Government in the administration of the
programs. 476 U.S. at 711-712.
We are aware of one bill in the 106^th Congress to provide a religious exemption from
the requirement to provide a taxpayer identification number for a dependent. H.R. 2494
would permit a “taxpayer who has a sincerely held religious belief under which the
taxpayer is conscientiously opposed to obtaining an identifying number with respect to a
qualified dependent may, in lieu of such number,” provide certain other documents to
prove that the dependent exists. Generally, bills such as the Freedom and Privacy
Restoration Act of 1999, H.R. 220, which would substantially restrict the use of social
security numbers as a means of identifying individuals and prohibit the use of government-
wide uniform identifying numbers, would retain the use of the social security number for
taxpayer identification purposes.
Without a statutory exemption, taxpayers are required to use social security numbers
on their tax returns or face any penalties for failure to do so. This is especially true if the
taxpayer wishes to obtain the benefit of exemptions, deductions, or credits which are
contingent on furnishing the number.

¹⁸736 F.2d 1269 (9^th Cir. 1984).