Court Writes Off Deductions

In this world, nothing is certain but death and taxes.

For Jewishly committed parents, that saying should extend to one other area: private school tuition.

Michael Sklar, a Tarzana accountant, recently tried to make a change to that rule and failed. On Jan. 31, the 9th U.S. Circuit Court of Appeals upheld a federal tax court’s ruling that Sklar and his wife, Marla, are not eligible to deduct 55 percent of the tuition they paid for their four children to attend Jewish day schools.

The court’s decision has huge implications for parents across the nation, who according to Forbes magazine pay an estimated $11 billion a year for parochial school tuition and religious education.

The battle began in 1993, when Sklar came across a change in the rules by the Internal Revenue Service (IRS) that allowed members of the Church of Scientology to deduct donations they paid to undergo auditing. In Scientology parlance, auditing involves working with ministers to answer a series of question intended to bring one to a higher spiritual plane. The practice can cost thousands of dollars.

In Sklar’s opinion, if the altered ruling opened the door to the deduction of religious education for Scientologists, why not for other religions?

"A friend of mine and I decided to file amended returns for the year 1991," Sklar said. "My friend received [his refund] without a hitch, but I received a note from the IRS."

After discussing the matter with an IRS agent, Sklar was eventually allowed to file the return and did receive a refund for several years. At a certain point, though, the IRS stopped honoring the refund, which led to Sklar doing something most people avoid: He filed a 1994 tax return intentionally flagging it to be audited.

The case ended up in tax court, where Special Trial Judge Larry L. Nameroff ruled that Sklar had not demonstrated that the religious education his children received was in the same category as that of members of the Church of Scientology. Sklar appealed the ruling, but the three-member panel of the 9th Circuit Court agreed with Nameroff.

Despite the loss of such a time-consuming battle, Sklar said it was worth it to him, not so much as an accountant, but as a Jew.

"I brought the case not because of the money involved, but because as a Jew I was terrified by what [was] going on," he said. "The current tax code amounts to state-sponsored religion, and Jews never fare well under those circumstances. That, and I was the only one doing it [challenging the ruling]. No one else bothered, and I can’t figure out why."

At the time of the lawsuit, Sklar’s children, who ranged in age from 4 to 12, attended Toras Emes and Emek Hebrew Academy at a cost of about $24,000 a year. Sklar feels that part of the reason he did not win on appeal was because of the schools’ mixed secular and religious studies.

"If someone tried the same [deduction] for, say, Talmud Torah classes, perhaps the judges could have listened to that argument. It wasn’t clear, where no secular studies were involved," Sklar said.

But any argument for making private religious education tax-deductible would likely not have convinced the appeals court, said tax specialist Larry Clumeck, a partner in Clumeck, Stern, Phillips and Schenkelberg.

"What [Sklar] was trying to do is say, ‘There is religious education as part of my children’s total education,’ and so therefore he was making a charitable contribution," Clumeck explained. "People have tried to make that argument to me, and I tell them it will never fly — and obviously it didn’t."

Jeanne Jacobs-Gaffney, director of finance and operations at Abraham Joshua Heschel Day School in Northridge, supported Clumeck’s findings.

"Basically, our tuition is not tax-deductible," she said. "We have one annual fundraiser that is tax-deductible, because it’s a straight donation to the school but that’s about it.

Jacobs-Gaffney said a change in the law would have at least one positive effect: "It would definitely make [private] schools more affordable for more people."

According to the current tax code, any contribution of $250 or more in a single day to a religious, nonprofit organization requires a receipt from that organization. Clumeck said he doubted any school would "play along" with providing such a receipt for tuition payments for fear of jeopardizing their nonprofit standing.

"There has been talk in recent years of legislation to give a credit for people who send their children to private school, but it’s never gone far enough to allow it [to happen]," Clumeck said. Sklar said he may appeal to a higher court.

"We’re mulling over our options and are likely to take it to the Supreme Court," Sklar said. "It’s not about Scientology. When I started this [action], I didn’t know Scientology from Christian Science. It’s about the fact that the government is funding a particular religion over another religion."