No, it’s not Peter Buck’s and Michael Stipe’s 1991 R. E. M. hit, it’s the lament of Lucy Gabey, in her eponymous Tax Court case, 2013 T. C. Memo. 17, filed 1/16/13.

I find popular songs do define the essence of litigation, especially tax litigation, but that’s a story (or a blogpost) for another day.

Meanwhile, Lucy is a tribal elder of the Navajo nation, and she claims Section 152(c)(2) deprives her of her religion and equal protection of the laws. Lucy is supporting her nephew, a minor. Her nephew is neither her child nor her descendant; he is not “a brother, sister, stepbrother, or stepsister of petitioner or a descendant of any such relative”. 2013 T. C. Memo. 17, at pp. 2-3.

But he is a clan relative, and the Navajo have clan relationships that mandate such support. Unfeeling IRS, carrying out the mandate of an unfeeling Congress, strips Lucy of her dependency exemption deduction, head of household filing status, earned income credit, and child tax credit, but later concedes the nephew’s qualifying relative qualification, giving Lucy back her dependency exemption deduction.

“According to petitioner, in Navajo culture and tradition children are not only children of the parents; they are also children of the clan. Petitioner submits that a Navajo clan consists of the first clans of the child’s mother, father, maternal grandfather, and paternal grandfather and that the clan relationship may extend beyond the foregoing if, for example, the child is adopted.” 2013 T. C. Memo. 17, at p. 5.

It’s unusual to see Constitutional arguments in Tax Court outside of protester cases, where they get blown away, but here Judge Cohen has to deal with the Constitution and the Religious Freedom Restoration Act of 1993 (known to the cognoscenti as RFRA). RFRA was intended to restore compelling governmental interest and least intrusive method to tests for infringement on free practice, and to give litigants a claim or defense if burdened by governmental action inhibiting their religious convictions.

I’ll skip the law review stuff; it’s obvious that I wasn’t on Law Review, having neither the brains nor the patience for writing seven-page footnotes. I am an ardent fan of the Supreme Court Justice (was it O. W. Holmes?) who brushed aside a citation to the Harvard Law Review thus: “I don’t pay attention to schoolboy magazines.”

But the upshot is that RFRA only applies if a person is deprived of a benefit because of, or compelled by threat of civil or criminal penalty to act contrary to, their religious exercises.

“The section 152(c)(2) relationship classification does not condition petitioner’s receipt of tax benefits on her forgoing her clan obligations to TD or force her to choose between following her clan obligations to TD and receiving tax benefits. Furthermore, the section 152(c)(2) relationship classification does not deny petitioner tax benefits because she fulfills her obligations to TD or force her to abandon her clan obligations to TD by threat of civil or economic sanctions. Regardless of petitioner’s ineligibility for tax benefits such as the earned income credit, she is at liberty to fulfill her clan obligations to TD. Petitioner’s argument for the burden on her religious rights is, instead, financial hardship and continuing Navajo child poverty. However, the Supreme Court has rejected the notion that a taxpayer’s free exercise of her religious beliefs is somehow not fully realized unless it is subsidized by tax benefits such as the earned income credit.” 2013 T. C. Memo. 17, at pp. 17-18 (Citation omitted).

No burden, so IRS need not show “least invasive method”.

Lucy’s arguments about Navajo child poverty and the Treaty of 1868 don’t fare any better. “Neither financial need nor poverty, standing alone, identifies a suspect class for purposes of equal protection analysis. There is no proof or even an indication that Congress selected or reaffirmed the section 152(c)(2) relationship classification because of or in spite of any adverse effects on petitioner or the Navajo or that the section 152(c)(2) relationship classification is a hostile and oppressive discrimination against her and the Navajo. For the foregoing reasons, the section 152(c)(2) relationship classification neither involves petitioner’s fundamental right to the free exercise of her religion nor proceeds along suspect lines.” 2013 T. C. Memo. 17, at p. 11. (Citations omitted).

“A strong presumption of constitutionality is granted to legislation conferring monetary benefits, because Congress should have discretion in deciding how to expend necessarily limited resources.” 2013 T. C. Memo. 17, at p. 12 (Citation omitted).

Finally,  IRS argues that Section 152(c) is quick-and-easy, and Judge Cohen agrees. Any bright-line test will leave somebody out who should be in, but unless there’s an invidious purpose behind it, the test must stand.