Tithing, as a religious practice, is constitutionally protected under the First Amendment of the U.S. Constitution. But in bankruptcy, transfers for no value, no matter how well-intended, violate the long-standing bankruptcy policy that debtors should not evade their financial commitments by making gifts.² On June 19, 1998, Congress enacted the Religious Liberty and Charitable Donation Protection Act of 1998 (referred to herein as the "act" or the "Religious Liberty Act") to insulate religious and charitable donations from certain provisions of the Bankruptcy Code.³ This article addresses the application of the act to four scenarios in which religious and charitable donations⁴ have become the subject of litigation. These include (1) trustee suits for avoidance of pre-petition transfers, (2) dismissal of a chapter 7 case, (3) chapter 13 plan confirmation and (4) dischargeability actions to which a "hardship" test applies.⁵

History of Religious and Charitable Donations in Bankruptcy Cases

Case Law Addressing Tithes. Prior to the Religious Liberty Act, no federal statute, bankruptcy or otherwise, directly protected religious and charitable transfers made by a debtor before or during a bankruptcy case. This left courts to struggle with the policy conflicts endemic to religious and charitable donations in bankruptcy, often with inconsistent results. Courts differed on whether a debtor could properly tithe or make charitable donations prior to filing a chapter 7 case⁶ or continue to make donations after filing a chapter 13 case.⁷ In a student loan dischargeability proceeding, one court ruled the debtor bore the burden of establishing the tithe and the reasonableness thereof.⁸ Most controversial, however, is that courts allowed trustees to recover charitable donations, including tithes, as fraudulent transfers under §§544 and 548 of the Bankruptcy Code.⁹

The Religious Freedom Restoration Act. Prior to the Religious Liberty Act, Congress addressed government infringement on the free exercise of religion by enacting the Religious Freedom Restoration Act of 1993 (RFRA). The RFRA prohibits government burden on religion and subjects any such burden to a high standard of scrutiny.¹⁰

The RFRA was a response to a decision of the U.S. Supreme Court in Employment Division of the Department of Human Services v. Smith, 494 U.S. 872, 890 (1990). In Smith, members of the Native American Church were denied unemployment benefits after losing their jobs for using peyote in religious ceremonies. The members brought a free exercise challenge to the constitutionality of the Oregon criminal statute prohibiting the use of peyote, arguing the statute was subject to a balancing test under Sherbert v. Verner, 374 U.S. 398, 406-07 (1963). Sherbert requires a state to justify an infringement on the free exercise of religion with a "compelling state interest" in regulation of a subject within the state's constitutional power.¹¹ The Supreme Court did not apply Sherbert, but rather used a lower standard, requiring only that the statute was one of general applicability and did not directly interfere with religion.¹²

After the Smith decision, several bankruptcy courts applied its lower standard in addressing challenges to tithes and charitable donations. For example, cases applied the Smith standard to hold that Bankruptcy Code provisions concerning fraudulent transfers were statutes of general applicability and did not directly interfere with religion.¹³ With the enactment of the RFRA, debtors and religious and charitable institutions found some defense against judicial attacks on religious or charitable donations, although with mixed results.¹⁴

Interestingly, the Religious Liberty Act specifically provides that "[n]othing in the amendments made by this act is intended to limit the applicability of the [RFRA]."¹⁵ Nevertheless, it is questionable whether the RFRA is still good law. The Supreme Court held in Boerne v. Flores, 521 U.S. 507 (1997), that the RFRA is unconstitutional in a non-bankruptcy context,¹⁶ while several bankruptcy courts have held it unconstitutional or questioned its continued validity.¹⁷ Given the questionable validity of the RFRA and bankruptcy precedent holding that it does not apply to avoidance actions, Congress passed the Religious Liberty Act to amend the Bankruptcy Code to protect religious and charitable donations in bankruptcy cases.

The Religious Liberty and Charitable Donation Act of 1998

Provisions of the Act. The act provides three significant amendments to the Bankruptcy Code:¹⁸ (1) pre-petition donations of up to 15 percent of the debtor's gross annual income or transfers consistent with the debtor's practice in making religious or charitable donations are protected from avoidance as fraudulent transfers;¹⁹ (2) post-petition donations of up to 15 percent of a chapter 13 debtor's gross annual income, if budgeted for religious or charitable donations, are excluded from disposable income calculations for a debtor's chapter 13 plan;²⁰ and (3) in determining whether to dismiss a case for substantial abuse of chapter 7 provisions, the court may not consider whether the debtor has made or continues to make religious or charitable donations.²¹

Transfer Avoidance: The Safe Harbor for Transfers. The act provides a safe harbor from avoidance for an otherwise fraudulent transfer if the transfer is a charitable contribution not more than 15 percent of the debtor's gross annual income or, if the transfer exceeds 15 percent, it must be consistent with the debtor's past charitable practices.²² The act defines "charitable contribution" by reference to §170(c) of the Internal Revenue Code.²³ Section 170(c) requires that a "charitable contribution" be made by a natural person and consist of cash or a financial instrument. Thus, a transfer of property other than cash or a financial instrument, such as real estate, may be avoidable even if the transferee is a religious or charitable organization and the value of the property transferred is within the safe harbor. Additionally, the safe-harbor defense only applies to constructively fraudulent transfers under §548(a)(1)(B) and does not apply to intentionally fraudulent transfers under §548(a)(1)(A), which continue to be avoidable.²⁴

Affirmative Defense. Because the §548(a)(2) safe-harbor defense is an affirmative defense, the defendant has the burden of establishing the defense.²⁵ Notably, at least one court has held that if the defendant fails to prove that safe harbor applies to a transfer, the entire transfer is avoidable.²⁶ The amount of the transfer up to 15 percent is not insulated from avoidance.

Consistent with Past Tithing Practices. Another safe-harbor issue is whether transfers exceeding 15 percent of the debtor's annual gross income are "consistent with past tithing practices." This issue arose in a challenge to a debtor's donation to his church of a $20,000 bequest he had received from a fellow parishioner prior to bankruptcy.²⁷ The only contested issue was whether the donation was consistent with the debtor's practice in making charitable donations.

The bankruptcy court compared the amount of the transfer in question with the amounts of the debtor's past donations. Where the debtor's income had changed, the court compared the percentage of the debtor's income represented by the transfer to the percentage of income represented by the debtor's past transfers.²⁸

The debtor did have a history of tithing, ranging from 7.3 percent of annual income to as much as 27.5 percent. But because the debtor was unemployed at the time of the donation, the transfer constituted 95 percent of the debtor's gross annual income. Further, prior to the donation, the largest amount the debtor had ever contributed at one time was $2,000. The bankruptcy court referred to the dictionary meaning of "consistent" and held that the donation was not consistent with the debtor's past charitable practices.²⁹

Chapter 13 Plan Confirmation. The act amends §1325(b) to permit a debtor to make charitable contributions as a living expense. Section 1325(b) defines "disposable income" in connection with chapter 13 plan confirmation. The act amends §1325(b) to exclude charitable donations from disposable income, allowing the debtor to continue to tithe. Bankruptcy courts have developed two different interpretations for §1325(b)(2) as amended. The first, stated in In re Cavanaugh, 250 B.R. 107, 110-111 (9th Cir. BAP 2000), focuses on the plain language of the act and holds that debtors' tithes are per se reasonable if they are within the act's 15 percent gross-income threshold. To guard against abuse, however, a creditor can challenge the debtor's good faith in proposing the plan if it appears the debtor inflated her budget for charitable contributions to avoid paying creditors.³⁰ Considerations include the timing of debtors' tithing relative to the bankruptcy filing and any increases in tithing on the eve of bankruptcy and after filing.³¹

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...debtors can manipulate tithes to reduce payments to creditors in a chapter 13 case or, in a chapter 7 case, avoid paying anything to creditors.

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In contrast to Cavanaugh, a second interpretation of §1325(b) is stated in In re Buxton, 228 B.R. 606, 609-10 (Bankr. W.D. La. 1999). The court imposed a reasonableness requirement on the amount of the tithe even though the donation was within the act's 15 percent gross-income threshold. In Buxton, the court considered tithing to be permissible up to 15 percent as part of a debtor's discretionary budget, similar to recreation or vacation expenses, but required that the expense be reasonable.³² The bankruptcy court determined that a $280 per month tithe, while within the 15 percent safe harbor, was unreasonable because the debtors only proposed to pay a $250 dividend to unsecured creditors under their plan.³³ This approach has been criticized for ignoring the plain language of the statute and the intention of Congress in passing the act.³⁴

Dismissal for Substantial Abuse. The act amends §707(b) to protect debtors who make charitable donations pre-petition from dismissal. Section 707(b) provides that a chapter 7 case may be dismissed if granting relief would be a substantial abuse of the Bankruptcy Code. The act amends §707(b) to prohibit the court from considering whether a debtor "has made or continues to make" charitable donations in considering dismissal. Section 707(b), unlike §§548 and 1325, places no limitation on the amount of the donation relative to the debtor's gross annual income.³⁵ The language of §707(b), however, requires that a debtor establish a history of charitable giving as of the petition date.³⁶ This provision guards against a debtor's abuse of the act by "seeing the light" and initiating a tithe or charitable donation on the eve of bankruptcy.³⁷

In re Smihula, 234 B.R. 240, 242 (Bankr. D. R.I. 1999), is an example of the application of §707(b) as amended. The debtors filed a chapter 13 case, then converted to chapter 7. The debtors, with no pre-petition history of tithing, initiated a $700 per month tithe post-petition to their church. This exhausted their disposable income, which could have funded a 40 percent dividend to unsecured creditors through a chapter 13 plan. The court therefore dismissed the case as a substantial abuse under §707(b).³⁸

Limitations on the Scope of the Act. Interestingly, one of the more litigated issues concerning the act is its application to dischargeability litigation under Bankruptcy Code sections unaltered by its amendments. Section 523(a)(8) requires the debtor to establish undue hardship if required to repay student loans. Similarly, §523(a)(15) establishes a balancing test to weigh the relative equities in requiring the debtor to repay obligations to an ex-spouse. Debtors have attempted to establish hardship by arguing that the act insulates their tithes from objection. The act, however, did not amend, and therefore does not apply to, dischargeability proceedings under §523(a)(8) (student loans)³⁹ or §523(a)(15) (marital obligations).⁴⁰ This rationale extends to other unchanged sections of the Bankruptcy Code.

Conclusion

Congress passed the Religious Liberty Act to protect debtors and religious and charitable institutions from certain provisions of the Bankruptcy Code. The act provides previously lacking guidance in balancing debtors' free-exercise rights against creditors' rights. Recent case law helps to delineate permissible exercise of religious beliefs from abuse of the Bankruptcy Code, but it remains to be seen if Congress went too far to the prejudice of creditors. As cases like Cavanaugh, Buxton and Smihula illustrate, debtors can manipulate tithes to reduce payments to creditors in a chapter 13 case or, in a chapter 7 case, avoid paying anything to creditors. Creditors must rely on bankruptcy courts to measure a debtor's sincerity by the consistency of past charitable contributions.

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Footnotes

¹ Genesis 28:22. Return to article

² Walsh, Thomas M., "Note: Religious Liberty and Charitable Donation Act of 1998: Putting the Fear of God into Bankruptcy Creditors," 7 ABI Law Review, 235, 256 (Spring 1998). Return to article

³ P.L. 105-183. Return to article

⁴ The act addresses both religious donations, including tithes, and charitable donations. The act provides the same treatment for donations to religious organizations as secular organizations. But case law on the subject almost exclusively arises in the context of tithes and other transfers to religious organizations. Return to article

⁵ This article will not address the constitutionality of the act. See In re Witt, 231 B.R. 92, 97-99 (Bankr. N.D. Okla. 1999) (finding the act constitutional); see, also, Walsh, Thomas M., "Note: Religious Liberty and Charitable Donation Act of 1998: Putting the Fear of God into Bankruptcy Creditors," 7 ABI Law Review, 235 (Spring 1998). Return to article

⁶ See In re Seager, 211 B.R. 81, 83 (Bankr. M.D. Fla. 1997) (finding that the debtor who had sufficient funds to tithe and enough money to meet debts when due was guilty of "substantial abuse" under §707(b)); In re Faulkner, 165 B.R. 644, 649 (Bankr. W.D. Mo. 1994) (finding substantial abuse "due to the amount of disposable income which would be available in the absence of charitable contributions"); In re Lee, 162 B.R. 31, 42 (Bankr. N.D. Ga. 1993) (finding that because debtors did not tithe consistently and their church did not require tithing as a condition for full membership privileges, the monthly expense for tithing was unreasonable). Return to article

⁷ See, e.g., In re Bien, 95 B.R. 281, 283 (Bankr. D. Conn. 1989) (confirming chapter 13 plan providing for tithing); In re Navarro, 83 B.R. 348, 356-57 (Bankr. E.D. Pa. 1988) (confirming chapter 13 plan that provided $100 per month tithe and tuition for children to attend parochial school). Contra, e.g., In re Dick, 222 B.R. 189, 190 (Bankr. D. Mass. 1998) (holding that tithe was not reasonably necessary during chapter 13 plan); In re Packham, 126 B.R. 603, 610 (D. Utah 1991) (rejecting plan providing tithe of 10 percent of debtors' income). In re Reynolds, 83 B.R. 684, 684-85 (Bankr. W.D. Mo. 1988) (denying confirmation on grounds that the amount of "semi-Biblical tithe" exceeded 3 percent of the debtor's gross income); In re Curry, 77 B.R. 969, 969 (Bankr. S.D. Fla. 1987) (finding that a charitable contribution "does not constitute a reasonably necessary living expense"); In re Sturgeon, 51 B.R. 82, 84 (Bankr. S.D. Ind. 1985) (holding that a monthly $140 tithe was "not a necessary living expense," so the debtor must commit this "amount to her plan as...part of her disposable income"). Return to article

⁸ In re Lynn, 168 B.R. at 700 (holding debtor failed to meet burden of undue hardship based on tithe). Return to article

⁹ See Weinman v. World of Life Christian Center (In re Bloch), 207 B.R. 944, 946 (D. Colo. 1997) (holding that debtors' contribution of more than $11,000 to church was fraudulent conveyance, allowing trustee to retrieve money for the estate); Morris v. Midway Southern Baptist Church (In re Newman), 203 B.R. 468, 478 (D. Kan. 1996) (deeming tithes fraudulent transfers recoverable under Code); Fitzgerald v. Magic Valley Evangelical Free Church Inc. (In re Hodge), 200 B.R. 884, 907 (D. Idaho 1996) (holding that trustee could recover $5,204 because debtors did not receive reasonably equivalent value); Christians v. Crystal Evangelical Free Church (In re Young), 148 B.R. 886, 891-92 (Bankr. D. Minn. 1992) (allowing trustee to retrieve $13,450 for lack of "reasonably equivalent value" under §548), aff'd, 152 B.R. 939 (D. Minn. 1993), rev'd, 82 F.3d 1407 (8th Cir. 1996), rev'd, 141 F.3d 854 (8th Cir. 1998). Contra, see Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1420 (8th Cir. 1996), rev'd, 141 F.3d 854 (8th Cir. 1998) (holding recovery of pre-petition tithes from church substantially impaired religious practices); Ellenberg v. Chapel Hill Harvester Church Inc. (In re Moses), 59 B.R. 815, 818 (Bankr. N.D. Ga. 1986) (holding that requirements of §548 were met because the court considered church services to be property); In re Missionary Baptist Foundation of America, 24 B.R. 973, 979 (Bankr. N.D. Tex. 1982) (holding that good will constituted reasonably equivalent value in exchange for tithe to church). Return to article

¹⁰ 42 U.S.C. §2000bb-3. Return to article

¹¹ 374 U.S. at 403. Return to article

¹² See Smith, 494 U.S. at 876-78. Return to article

¹³ See, e.g., Geltzer v. Crossroads Tabernacle (In re Rivera), 214 B.R. 101, 108 (Bankr. S.D.N.Y. 1997). Return to article

¹⁴ See Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1416 (8th Cir. 1996), rev'd, 141 F.3d 854 (8th Cir. 1998) (discussing overlap of RFRA and Bankruptcy Code); In re Gomes, 219 B.R. 286, 294-95 (Bankr. D. Ore. 1998) (rejecting church's defense under RFRA that avoidance provisions asserted by trustee constituted a substantial burden on religion). Return to article

¹⁵ P.L. 105-183 at §6. Return to article

¹⁶ 521 U.S. at 532-35. Return to article

¹⁷ See In re Tessier, 190 B.R. 396 (Bankr. D. Mont. 1995) (finding the RFRA unconstitutional); In re McLeroy, 250 B.R. 872, 882-83 (N.D. Tex. 2000) (questioning whether the RFRA is still good law). Return to article

¹⁸ The act became effective on the date of enactment (June 19, 1998) and applies to cases pending or commenced on or after that date. The act amended or added to Bankruptcy Code §§544(b), 546(e), 546(f), 546(g), 548(a), 548(d), 707(b) and 1325(b)(2)(A). The substantive revisions are to §544 (trustee's avoidance powers), §548 (fraudulent transfer), §707(b) (dismissal for substantial abuse) and §1325(b)(2)(A) (chapter 13 confirmation). Return to article

¹⁹ See 11 U.S.C. §§544(b) and 548(a)(2). Return to article

²⁰ 11 U.S.C. §1325(b)(2)(A). Return to article

²¹ 11 U.S.C. §707(b). Return to article

²² 11 U.S.C. §548(a)(2). Return to article

²³ 11 U.S.C. §548(d)(3). Return to article

²⁴ In re Jackson, 249 B.R. 373, 376 (Bankr. D. N.J. 2000). Return to article

²⁵ In re Jackson, 249 B.R. at 377. Return to article

²⁶ In re Zohdi, 234 B.R. 371, 374-75 (Bankr. M.D. La. 1999). Return to article

²⁷ In re Jackson, 249 B.R. 373 (Bankr. D. N.J. 2000). Return to article

²⁸ Id. at 377-78. Return to article

²⁹ Id. Return to article

³⁰ Id. Return to article

³¹ Id. at 114-15. Return to article

³² See In re Buxton, 228 B.R. 606, 609-10 (Bankr. W.D. La. 1999) (requiring, despite the 15 percent limitation under the act, that chapter 13 debtor's tithe be reasonable). Return to article

³³ In re Buxton, 228 B.R. at 611. Return to article

³⁴ See, e.g., In re Cavanaugh, 242 B.R. at 710-11. Return to article

³⁵ In re Cavanaugh, 250 B.R. 107, 112 (9th Cir. BAP 2000). Return to article

³⁶ In re Smihula, 234 B.R. 240, 242 (Bankr. D. R.I. 1999). Return to article

³⁷ Id. at 242. Return to article

³⁸ Id. at 243. Return to article

³⁹ In re McLeroy, 250 B.R. 872 (N.D. Tex. 2000); but, see,