Richard D. Warren Elizabeth K. Warren v. Commissioner of Internal Revenue

ORDER; Concurrence by

ORDER

Professor Erwin Chemerinsky has a filed a motion to intervene in this appeal, while the parties have filed a stipulation of dismissal under Fed. R.App. P. 42(b). We deny Prof. Chemerinsky’s motion and dismiss this appeal.

Rev. Richard D. Warren received approximately $80,000 annually from his church as a cash housing allowance. He claimed this entire amount as a tax exclusion under 26 U.S.C. § 107 (2), which provides generally that rental allowances paid to “ministers of the gospel” are not taxable income. The IRS filed a notice of deficiency, claiming that his exclusion was excessive because it exceeded his home’s fair *1014 rental value. Rev. Warren sought a declaration in Tax Court that he was entitled to claim the full amount as an exclusion, and a majority of the Tax Court agreed. See Warren v. Commissioner, 114 T.C. 343 , 2000 WL 626758 (2000). The government appealed.

After oral argument, we appointed Prof. Chemerinsky as amicus. 1 We requested supplemental briefing from the parties and amici on whether we should consider the constitutionality of § 107(2) and, if so, whether Rev. Warren’s claimed exclusion violates the Establishment Clause…

specially concurring.

I concur only in the judgment of the Court. Because the parties had previously stipulated to a dismissal, pursuant to Federal Rule of Appellate Procedure 42(b), the Clerk should simply dismiss the appeal. The Court need not consider Professor Chemerinsky’s subsequent motion to intervene because it is moot. Nothing more need be said.

302 F.3d 1012 Richard D. WARREN; Elizabeth K. Warren, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. No. 00-71217. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2001. Filed August 26, 2002. Eileen J. O'Connor, Gilbert S. Rothenberg, Andrea R. Tebbets, Judith A. Hagley, United States Department of Justice, Washington, DC, for the respondent-appellant. Arthur A. Oshiro, Saavedra & Zufelt, Long Beach, CA, and John C. Eastman, the Claremont Institute Center for Constitutional Jurisprudence, Orange, CA, for the petitioners-appellees. Frank Sommerville, Hammar & Sommerville, Houston, TX, for amicus National Association of Church Business Administration, et al. Erwin Chemerinsky, University of Southern California Law School, Los Angeles, CA, as court-appointed amicus. Appeal from the United States Tax Court. Tax Court No. 14924-98. Before: BROWNING, REINHARDT, and TALLMAN, Circuit Judges. 1 ORDER; Concurrence by Judge TALLMAN. ORDER 2 Professor Erwin Chemerinsky has a filed a motion to intervene in this appeal, while the parties have filed a stipulation of dismissal under Fed.R.App.P. 42(b). We deny Prof.…