Who Can Sign Checks for the Church? Understanding Roles and Responsibilities

Understand the roles and liability protections of church check signers, with tips to safeguard your church’s financial practices.

Last Reviewed: January 26, 2025

Q: Does the person who signs checks but has no official staff or board position in the ministry have any responsibility if anything goes wrong financially? I am not talking about writing illegal checks, but rather, if the corporation does something wrong or is accused of financial misconduct, can someone who is simply a volunteer be held responsible?


Does the person who signs checks but has no official staff or board position in the ministry have any responsibility if anything goes wrong financially? I am not talking about writing illegal checks, but rather, if the corporation does something wrong or is accused of financial misconduct, can someone who is simply a volunteer be held responsible?

Are Check Signers Personally Liable for Bounced Checks?

In general, a person who signs a check on behalf of a church or ministry will not be held personally liable for a check that bounces, as long as they are unaware that the bank account has insufficient funds to cover the check amount.

Checks are considered “negotiable instruments” under the Uniform Commercial Code (UCC). This legal framework governs liability for people who sign checks and other negotiable instruments. Employees and volunteers who sign checks on behalf of a church are representatives of the organization and are generally protected against claims made by recipients of checks drawn on the organization’s bank account.

What Does Article 3 of the UCC Say About Check Signers?

According to Article 3 of the UCC (Revised), a representative check signer, such as a church treasurer, is not personally liable for a bounced check. However, there are exceptions:

  • If the signer knowingly issues a check that will bounce, they could be held liable for fraud.
  • Fraud claims require proof that the signer was aware of insufficient funds at the time the check was issued.

A landmark case, Lippman Packing Corp. v. Rose (1953), established that a representative is not liable for fraud unless they knowingly misrepresented the situation or had actual knowledge of insufficient funds. This principle, known as the “Lippman Rule,” is still referenced today.

Are There State-Specific Considerations?

While most states follow the UCC, some variations exist. For example, New York has not fully adopted Revised Article 3. In such jurisdictions, a check signer may face personal liability unless they clearly indicate their representative role by displaying the church’s name on the check and signing with a title like “as church treasurer.”

How Can Churches Reduce Liability Risks for Check Signers?

To safeguard against potential liability, consider the following practices:

  • Ensure all checks prominently display the church’s name.
  • Require signers to include their titles, such as “as treasurer,” when signing checks.
  • Implement strong internal controls, such as requiring dual signatures for checks over a certain amount.
  • Consult with a local attorney familiar with UCC and state laws to ensure compliance and reduce risks.

FAQs

  • Are church volunteers at risk of personal liability when signing checks? Generally, no, unless the volunteer knowingly signs a check that will bounce or fails to follow best practices, like indicating their representative role.
  • What is the “Lippman Rule”? It states that a representative signer is not liable for fraud unless they knowingly participated in misrepresentation or fraud.
  • Do all states follow Revised Article 3 of the UCC? No, some states, like New York, have not adopted it fully, which may increase liability risks for check signers in those jurisdictions.
  • How can churches protect check signers? Ensure proper documentation, use dual-signature requirements, and seek legal advice on state-specific UCC applications.

Conclusion

Check signers for churches, whether employees or volunteers, are generally protected from personal liability under the Uniform Commercial Code. However, implementing best practices and understanding state-specific laws can further reduce risks and ensure proper financial oversight within the church.

Non-Compete Agreements for Pastoral Staff: Are They Legal?

Non-compete agreements can limit a pastor’s ability to work at a nearby church after resignation or dismissal. Learn how these agreements work, their legal enforceability, and best practices for churches considering such clauses.

Last Reviewed: January 29, 2025

Q: Is it legal to add something to a pastoral staff hiring agreement stating that if a pastor or ministry staff person is dismissed or resigns, they agree not to accept employment in any church within a 30 mile radius of our church for three years after their termination date?


This type of agreement or language is often referred to as a “non-compete” agreement. Non-compete agreements are common in the business world, but can be used by not-for-profit religious institutions to limit certain key employees’ options when he or she terminates. Whether a non-compete agreement will be upheld varies state by state, however, most will allow it as long as certain conditions are met.

In most cases, courts will look to whether the agreement was reasonable in scope, geography and term. Here are examples of language that likely would or would not be upheld:

Reasonable: Reverend Smith agrees not to accept a pastoral position with any Baptist church within 30 miles of First Baptist Church for two years following termination. A pastoral position means a job where the primary responsibilities include preaching, teaching, leading worship, or overseeing a Church.

Unreasonable: Reverend Smith agrees not to accept any position with any church in the State of California for five years following termination with First Baptist Church.

Additionally, some states require “additional consideration” (i.e. money or tangible benefit) in order for the agreement to be binding, especially if the agreement is signed after the employee is already employed. As with all agreements, you should have a local attorney review non-compete language to confirm that it complies with your state laws.

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Q&A: What Basic Guidelines Can We Follow to Audit Our Own Record keeping?

A checklist of items to cover when reviewing your church’s financial books.

Our church board does an audit of our financial records on a quarterly basis. They review the income records, accounts payable and payroll checks for both the church and our Christian school. This past week our finance team got in a discussion about practices an accounting firm would use versus our practices. We have never had a CPA or firm do an audit because of the expense.
I instruct the board in what to audit and check, and I am also responsible for handling the income and paying the bills. I want them to have confidence that we have procedures in place that, to the best of our ability, safeguard the church and me. What guidelines would CPAs use if they were to audit a church’s books?
Here is a checklist of some items that may prove helpful when your board conducts its audit:
  • Minutes for meetings (board, financial committee, executive committee): look for financial transactions
  • Internal controls: are they adequate?
  • Expense reports of executive employees
  • Pledges/contributions receivable: were any received that were not recorded and should have been?
  • Unrecorded trusts and estates
  • Cash: review bank reconciliations
  • Investments: determine if the statements agree to the general ledger
  • Accounts and notes receivable: make sure there is support for the amounts
  • Property, plant, and equipment (PPE): have additions and disposals been recorded and is depreciation accurate?
  • Inventory: is there support for this amount?
  • Accounts payable and accrued expenses: have all amounts incurred but not paid (including payroll and vacation time) been accrued?
  • Deferred revenue: if the revenue hasn’t been earned, is it reflected as a liability?
  • Revenue: is the donor system reconciled to the general ledger?
  • Notes payable: does the debt statement agree with the general ledger?
  • Expenses: is there a reconciliation of the 941 reports with the payroll expenses?
Additionally, it’s generally good to do an analysis of current year to prior year amounts of revenue and expense to see if there are any large or unexplained differences.
While the above list is a portion of what a full audit would encompass, it can still seem overwhelming. Your board may want to select a few items and do them on a rotating quarterly basis.
Vonna Laue has worked with ministries and churches for more than 20 years. Vonna was a partner with a national CPA firm serving not-for-profit entities through audit, review, tax, and advisory services. Most recently, she held the role of executive vice president for a Christian ministry that works to enhance trust in the church and ministry community.

Does You Need a Church Risk Management Team?

A team should include professionals in areas you intend to address, such an accountant for financial issues, a builder for structural ones, and an attorney for liability issues.

Q: We would like to create a risk management team in our church. What kinds of volunteers should we try to recruit for this ministry? How do other churches use a safety team to help oversee church people, property, and ministries?


The answer is probably yes

Your church is to be commended for recognizing the need to take steps to prevent problems before they happen—the very essence of risk management. Many churches have begun to work on comprehensive risk management plans that thoughtfully consider and address the exposures involved in their ministries.

Resource: Learn how to development a risk management strategy for your church in this downloadable resource.

Choose the right people

Recruiting the right people to develop the plan is an important aspect of creating an effective plan. Create one or more committees of people who understand and value risk management. Include professionals in areas you intend to address, such an accountant for financial issues, a builder for structural ones, and an attorney for liability issues.

Plan development is generally best undertaken by a team. For the team to be effective, it’s important that they be granted sufficient authority by the church to put an effective plan into place.

When a church begins work on a comprehensive risk management plan, the process can seem daunting. Keep it manageable by breaking the project down into smaller steps. Ask the right people (and enough of them) to complete each one and develop a project plan with firm delivery dates along the way.

Six steps to take

Here are six steps recommended by Brotherhood Mutual for developing a workable, well-thought-out risk management plan for your church:

  1. Identify the hazards. Determine what areas of your ministry might pose risks. Consider any hazard that can cause injury, illness, death, loss, or damage to equipment or property. Consider a variety of “what if” scenarios.
  2. Assess the risks. Estimate the probability and severity of each potential risk. Think in terms of worst-case possibilities to get a credible measure of how severe a risk could become. With results in hand, you’ll have a useful tool for identifying which risks should be given closest attention.
  3. Analyze risk control measures. Investigate specific strategies and tools that reduce or eliminate risks. There’s a range of options, from deciding not to take a risk at all to finding ways to reduce, accept, or transfer the risk.
  4. Make risk control decisions. Once you have chosen a strategy, determine the level of risk remaining. Do you still think the remaining risk is acceptable? Or should you modify the plan to develop measures to better control the risk? Capture your decisions in writing.
  5. Implement risk controls. Document your plan fully and implement it with appropriate resources. You’ll also want to communicate the plan—or at least the relevant components—to church employees, volunteers, and members.
  6. Supervise and review. Make sure everyone is playing his or her role appropriately once your plan is in place. As time passes, review the plan periodically to ensure it’s still working. Get feedback from people involved in all aspects of the plan, and use their comments to modify it as needed.

Understanding Comp Time and Overtime Rules for Church Employees

Many churches mistakenly believe they can offer comp time instead of overtime pay. However, under the Fair Labor Standards Act (FLSA), private employers must pay non-exempt employees overtime for hours worked beyond 40 in a single workweek. Learn how to handle overtime correctly to stay compliant.

Q: Could you address the “comp time” issue? This seems to be a huge misunderstanding in church circles. My understanding of the Fair Labor Standards Act is that there is no comp time in lieu of overtime pay for non-exempt employees. Overtime is after 40 hours in one work week and you can’t comp it at 1-1/2 hours time off? Is this right?


You are correct. Private employers, such as churches and not-for-profit ministries, cannot offer compensatory time to non-exempt employees in lieu of overtime. Comp time is often defined as substituting overtime with time off work.

The Fair Labor Standards Act (“FLSA”) does allow employees to rearrange hours worked within the same workweek (not pay period) to avoid overtime. However, employees cannot substitute paid time off for the time worked over 40 hours to use in another week.

The FLSA requires employers pay non-exempt employees overtime compensation for all time worked in excess of 40 hours within any workweek.

Here is a common scenario that demonstrates how this works: First Church of Lansing pays employees every other week. Kim, the church secretary, works 44 hours one week and 36 the next week. In this scenario, the employer must pay Kim four hours overtime for the first week. Even though Kim worked 80 hours in the pay period, she still worked 44 hours in one week and therefore must receive overtime compensation.

Some states have additional wage and hour restrictions, such as requiring overtime when an employee works more than eight hours a day, that apply. So make sure you talk to a local attorney to confirm how overtime must be administered in your state.

Church Liability: Fall Risk Prevention

Protect your congregation from the church’s most common liability.

Last Reviewed: February 11, 2025

Along with the winter season comes slippery ice and wet floors, and you will need to consider what you can do to make your church safer for all who will enter and exit. “Slips, trips, and falls,” as a category, is one of the most common liability areas for churches. In fact, personal injury lawsuits (commonly prompted by slips, trips, and falls) are a perennial top reason churches go to court each year.

Help protect visitors and members at your church by using nonskid mats and wax, immediately cleaning up water spills, and always placing signs around slippery floors.

Consider these examples that prompted lawsuits:

Example. A charity permitted an outside group to use its facility for a Christmas party. During the party, a woman suffered serious injuries when she fell on a slippery floor. As a result of her injuries, the woman underwent surgery for a complete hip replacement.

She later sued the charity, claiming that the floor was unreasonably slippery, and that this dangerous condition caused her to fall. The charity asked the court to dismiss the case, but its request was denied. On appeal, a state appeals court suggested that there was sufficient evidence that the charity retained control over its premises during the party to send the case to a jury.

The court began its opinion by acknowledging that a property owner may be legally responsible for injuries that occur on its premises when they are under its custody or control.

The court suggested that the charity had retained control over its premises during the Christmas party on the basis of the following factors: 1) the charity was responsible for setting up tables for the party; 2) the charity provided a custodian during the entire party; and 3) the charity was responsible for opening the premises at the beginning of the party and locking the premises at the conclusion of the party. The charity’s custodian admitted that he had cleaned the floor prior to the party and that he was on duty and responsible for cleaning the floor during the party.

Example. The Mississippi Supreme Court ruled that an unincorporated church and its board of trustees could be sued by a member who was injured when she slipped and fell on a waxed floor while leaving a Sunday school class. The member argued that she was an “invitee” and, accordingly, that the church owed her a high degree of care, which it breached. The church maintained that the member was merely a “licensee” to whom it owed a minimal duty of care.

The state supreme court observed that the term invitee includes both “public invitees” and “business visitors.”

A public invitee is “a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public,” while a business visitor is “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”

On the other hand, a licensee is one “who enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner.” In applying these definitions to church members, the court concluded:

Members of religious associations, in general . . . fall within the category of “public invitees.” Religious bodies do expressly and impliedly invite members to come and attend their services and functions. They hold their doors open to the public. While they do not charge admission fees . . . churches do depend on contributions . . . in order that they may continue to be open to the public.

Therefore, a church member who does not exceed the scope of the church’s invitation is an invitee while attending a church for church services or related functions.

Accordingly, the member who slipped and fell on the waxed floor was an invitee to whom the church owed a high degree of care, rather than a mere licensee to whom the church owed only a minimal duty of care.

These examples illustrate the unpredictable ways that courts will determine the duty of care churches owe to people who enter their buildings. Since lawsuits caused by slips, trips, and falls are so common, and because churches do not want to see anyone injured while on their properties, church leaders should actively and aggressively address this risk.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Safely Disposing of Sensitive Information

How does the FTC’s “disposal rule” apply to churches?

Q: Our church recently received an unsolicited ad in the mail from a company warning us that we need to comply with a Federal Trade Commission “disposal rule.” What is the disposal rule, and does it apply to churches?


In an effort to protect the privacy of consumer information and reduce the risk of fraud and identity theft, the FTC adopted a “disposal rule” in 2005 requiring “consumer reports to be disposed of in such a manner that they cannot subsequently be reconstructed by identity thieves. The rule requires the proper disposal of information in consumer reports and records to protect against “unauthorized access to or use of the information.”

The definition of a “consumer report” includes credit checks, criminal records checks, and references that are used in making employment decisions. The bottom line is that these kinds of documents cannot simply be tossed into the trash. Instead, they must be shredded, burned, or pulverized, either by the employer itself or by an external vendor. Obviously, the vast majority of churches can comply with this rule by purchasing a $20 shredder at a local office supply store.

According to the FTC, the standard for the proper disposal of information derived from a consumer report is flexible, and allows the employer to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.

For more information about the disposal rule, visit the FTC website.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Do Churches Need to Comply with the FTC Disposal Rule?

Find out how the FTC Disposal Rule impacts churches and why proper document disposal is essential for protecting sensitive information.

Last Reviewed: January 26, 2025

Q: Our church recently received an unsolicited ad in the mail from a company warning us that we need to comply with a Federal Trade Commission “disposal rule.” What is the disposal rule, and does it apply to churches?


In an effort to protect the privacy of consumer information and reduce the risk of fraud and identity theft, the FTC adopted a “disposal rule” in 2005 requiring “consumer reports” to be disposed of in such a manner that they cannot subsequently be reconstructed by identity thieves.

The rule requires the proper disposal of information in consumer reports and records to protect against “unauthorized access to or use of the information.”

The definition of a “consumer report” includes credit checks, criminal records checks, and references that are used in making employment decisions. The bottom line is that these kinds of documents cannot simply be tossed into the trash.

Instead, they must be shredded, burned, or pulverized, either by the employer itself or by an external vendor. Obviously, the vast majority of churches can comply with this rule by purchasing a shredder at a local office supply store.

According to the FTC, the standard for the proper disposal of information derived from a consumer report is flexible, and allows the employer to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.

For more information about the disposal rule, visit the FTC website at www.ftc.gov.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.
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Understanding Taxes on Educational Assistance for Churches

Discover how churches can provide educational assistance to employees while meeting IRS requirements and minimizing tax liabilities.

Last Reviewed: January 3, 2025

Q: Our senior pastor is pursuing an advanced degree through a seminary located in another state. Our church board would like to pay his tuition expense, since we believe that our church will directly benefit from this additional education. Are we required to report the amounts we pay as taxable income to the pastor, or are these payments nontaxable?


Churches offering educational assistance to their employees, such as senior pastors pursuing advanced degrees, must navigate complex tax regulations. This article explains how to handle taxes on educational assistance in compliance with IRS rules.

Key Takeaways:

  • Educational assistance up to $5,250 annually can be excluded from taxable income.
  • Excess benefits may be taxable unless they qualify as working condition fringe benefits.
  • A written educational assistance program is required for compliance.

Can our church pay our pastor’s tuition without making it taxable income? Yes, under certain conditions. Section 127 of the tax code allows up to $5,250 annually in tax-free educational assistance benefits for employees. Here’s how:

Eligibility for Tax-Free Educational Assistance

To exclude up to $5,250 of educational assistance benefits from taxable income, the church must meet the following requirements:

  • Establish a written educational assistance program for employees.
  • Ensure the program does not discriminate in favor of officers or highly compensated employees.
  • Provide reasonable notification of the program’s availability and terms to all eligible employees.
  • Offer educational assistance rather than cash alternatives.

What Qualifies as Educational Assistance?

Educational assistance benefits include:

  • Payments for tuition, fees, and similar expenses.
  • Costs for books, supplies, and equipment related to coursework.

These benefits apply to both undergraduate and graduate-level courses, regardless of whether the courses are work-related. However, expenses for meals, lodging, transportation, or general supplies are not included.

Tax Treatment of Benefits Over $5,250

Any educational assistance exceeding $5,250 annually must be treated as taxable income unless it qualifies as a working condition fringe benefit. For education expenses to qualify as a working condition fringe benefit, they must:

  • Maintain or improve skills required for the employee’s current role, or
  • Meet the employer’s requirements for continued employment or licensing.

Education expenses generally do not qualify if they are for training in a new trade or business or for meeting minimum educational requirements.

Example

Your church pays $10,000 toward your senior pastor’s tuition. The first $5,250 can be excluded from taxable income. The remaining $4,750 is taxable unless it qualifies as a working condition fringe benefit.

Additional Considerations

  • The exclusion applies to both income tax and Social Security tax.
  • Self-employed individuals may also qualify for the exclusion under these rules.

FAQs About Taxes on Educational Assistance

  • What if the educational expenses are related to a new role?
    Such expenses are generally taxable unless they meet the requirements of a working condition fringe benefit.
  • Does the exclusion apply to self-employed clergy?
    Yes, self-employed clergy can also benefit under the same rules.
  • What expenses qualify under an educational assistance program?
    Tuition, fees, books, supplies, and equipment qualify, but meals and lodging do not.
  • How should excess educational benefits be reported?
    Amounts exceeding $5,250 must be included in the employee’s Form W-2 (Box 1) unless they qualify as a working condition fringe benefit.

Conclusion

By adhering to IRS regulations, churches can provide educational assistance to employees while minimizing tax liabilities. Establishing a compliant educational assistance program is essential for achieving these benefits. For additional guidance, consult IRS Publication 970 or your tax advisor.

For more information, visit the IRS website or explore resources on Church Law & Tax.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

What Churches Should Know About No Interest Loans

What are the tax implications or potential penalties of doing so?

Last Reviewed: January 5, 2025

Q: Our church board has approved a $10,000 no-interest loan to one of our pastors to assist him with the down payment on a new home. We have two questions about this transaction. Since the loan is for $10,000, it is our understanding that the foregone interest would not represent taxable income to him. Is this correct?

Second, if we decide to forgive the loan, we understand that the balance will be considered income and subject to federal and state income tax. At the time of forgiveness, does the entire balance become taxable or is it taxable incrementally throughout the remaining duration of the loan?


Churches often provide no-interest or low-interest loans to pastors for housing or other needs. However, these transactions come with specific tax and legal considerations. This article addresses key questions regarding no-interest loans and how to navigate their implications.

Key Takeaways:

  • No-interest loans over $10,000 may result in taxable income from foregone interest.
  • Forgiving a loan balance results in immediate taxable income.
  • State laws may prohibit loans to officers or directors.
  • Failure to report taxable benefits can trigger excise taxes and penalties.

Does a $10,000 no-interest loan result in taxable income? Generally, no, provided that the loan is not structured to avoid taxable income. Loans exceeding $10,000, however, require reporting foregone interest as taxable income.

Tax Implications of No-Interest Loans

Here are key tax considerations for no-interest or below-market loans:

  • Foregone Interest: For loans exceeding $10,000, the church must report the foregone interest as taxable income for the employee.
  • Intent to Avoid Tax: If the loan is structured to avoid income tax by keeping the loan amount at or below $10,000, the exemption may not apply.

Loan Forgiveness and Taxable Income

If the church forgives the loan, the remaining balance becomes taxable income immediately. Forgiveness could also trigger nonqualified deferred compensation rules under section 409A of the tax code.

Churches must also address legal and compliance concerns when offering loans:

  • State Nonprofit Laws: Many states prohibit nonprofit boards from making loans to officers or directors. Check your state’s laws to ensure compliance.
  • Inurement Risks: Loans must not result in private benefit or inurement, which could jeopardize the church’s tax-exempt status. Reporting all taxable income eliminates this risk.
  • Excise Taxes: Unreported taxable fringe benefits may subject the recipient to excise taxes of up to 225%, with additional penalties for board members who authorize such benefits.

Examples of Tax Treatment

Example 1: $10,000 Loan

The church offers a no-interest loan of $10,000 to a pastor. Since the amount does not exceed $10,000 and is not structured to avoid tax, no foregone interest is taxable.

Example 2: $15,000 Loan

The church provides a no-interest loan of $15,000. Foregone interest on the excess $5,000 must be reported as taxable income for the pastor.

FAQs About No-Interest Loans

  • Are no-interest loans always tax-free?
    No. Loans exceeding $10,000 generally require reporting foregone interest as taxable income.
  • What happens if a loan is forgiven?
    The forgiven amount becomes taxable income immediately and may trigger additional tax regulations.
  • Are there state restrictions on church loans?
    Yes. Some state nonprofit laws prohibit loans to officers or directors, even with reasonable interest rates.
  • How can churches avoid penalties?
    Ensure proper reporting of taxable benefits and compliance with federal and state laws.

Conclusion

No-interest loans can be a helpful tool for supporting church staff but require careful tax and legal compliance. Churches must report foregone interest when applicable, comply with state laws, and avoid risks to tax-exempt status. Consultation with a tax professional is recommended for complex arrangements.

For further details, visit the IRS website or explore resources on Church Law & Tax.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

How New Church Treasurers Can Handle Disorganized Financial Records

Learn how new church treasurers can address disorganized financial records and decide whether a church audit is necessary.

Last Reviewed: January 26, 2025

Q: I recently took on the job of church treasurer. I’m not a CPA, but even I can tell our records are in disarray. How can I unravel the inconsistent accounting methods used in the past? Should I recommend a church audit to help straighten everything out?


I am aware of one business administrator that required the church be audited as a condition of her accepting the employment agreement. While that gives everyone an idea of what problems existed before she arrived, an audit is not always a cost effective solution to the issues.

If the church has not been audited before, the money is probably better spent to have an accountant experienced in church finances complete a consulting engagement to sort through potential problem areas and give suggestions on better accounting processes and policies.

Vonna Laue has worked with ministries and churches for more than 20 years. Vonna was a partner with a national CPA firm serving not-for-profit entities through audit, review, tax, and advisory services. Most recently, she held the role of executive vice president for a Christian ministry that works to enhance trust in the church and ministry community.

Exceptions to Sales Tax Exemptions

Key insights into exceptions to sales tax exemptions for churches, including when to pay and collect sales tax on transactions.

Last Reviewed: January 15, 2025

Many churches mistakenly believe that their federal income tax exemption automatically extends to all taxes, including sales taxes. However, there are several exceptions to sales tax exemptions that churches must understand to remain compliant with state and local regulations.

When Are Churches Required to Pay Sales Tax?

Sales tax laws vary by state, with 45 states and Washington, DC, requiring sales tax collection. Each state’s statutes define when sales tax exemptions apply, so it is crucial to consult your state’s revenue department for specifics. Below are key considerations for when churches need to pay sales tax:

1. Providing an Exemption Certificate

States that exempt churches from paying sales tax require an exemption certificate to be provided to the seller. Without this certificate, or if it is incomplete, the seller is responsible for paying the sales tax. Some states issue exemption numbers, while others do not.

2. Payment Must Be from Church Funds

Purchases must be made using church funds, such as a church check or church credit card. Personal payment methods, such as an employee’s credit card or personal check, may not qualify for exemption. In some states, churches can request a refund of sales taxes paid by submitting receipts to the state’s revenue department.

3. Purchases for Exempt Functions Only

Most states allow churches to avoid paying sales tax on items directly related to their exempt functions, such as office supplies or computers. However, purchases for non-exempt uses, such as prizes for children’s events, are typically taxable. Similarly, items for a pastor’s parsonage are often considered personal and not ministry-related, so they may not qualify for exemption.

When Are Churches Required to Collect Sales Tax?

Churches often confuse their exemption from paying sales tax with an exemption from collecting it. However, most states require churches to collect sales tax on taxable transactions. Here are situations where churches must collect sales tax:

1. Sales of Tangible Property

Churches must collect sales tax on the sale of tangible items such as books, CDs, or sermon recordings. This applies even to items sold during church classes or events, depending on state regulations.

2. Fundraising Events

Many fundraising events, such as bake sales or craft fairs, involve selling taxable items. Most states collect sales tax on prepared food sales, though some offer exemptions for church events, like Wednesday evening meals.

3. Auctions

Most states require sales tax collection on items sold at auctions, although some states provide exemptions for charitable auctions. Churches should verify state-specific rules and structure auctions accordingly to qualify for exemptions where possible.

4. Craft Fairs and Festivals

Churches hosting events where booths are rented to individuals or businesses should take extra precautions. In many states, the “flea market” rule holds the host church liable for sales tax on items sold by vendors without valid sales tax permits. Churches can avoid liability by requiring booth renters, as well as speakers or performers selling goods, to provide a copy of their valid sales tax permits before participating.

FAQs: Exceptions to Sales Tax Exemptions

1. Are churches automatically exempt from all sales tax?

No, churches are not automatically exempt. Each state has specific rules about what purchases and transactions qualify for exemption.

2. Can a church use its sales tax exemption for personal purchases?

No, sales tax exemptions typically apply only to purchases made directly for church-related exempt functions. Personal items, such as those for a parsonage, are not covered.

3. Does a church need a sales tax permit to sell items?

In most states, yes. Churches conducting taxable transactions, such as selling books or holding fundraisers, must obtain a sales tax permit and collect applicable taxes.

4. What is the “flea market” rule, and how does it affect churches?

The “flea market” rule makes churches liable for sales taxes on items sold by vendors at church-hosted events unless those vendors have valid sales tax permits. Requiring proof of permits protects the church from liability.

By understanding exceptions to sales tax exemptions, churches can ensure compliance with state laws, avoid unnecessary liabilities, and maintain their tax-exempt status. Consulting your state revenue department or a tax professional is essential for clarity on specific scenarios.

Frank Sommerville is a both a CPA and attorney, and a longtime Editorial Advisor for Church Law & Tax.

Maximizing Church Purchases: The Value of Lifecycle Cost Analysis

Learn how Crossroads Christian Fellowship and other churches optimize purchases by focusing on lifecycle cost analysis. From flooring to heat pumps, discover practical strategies for ensuring value, stewardship, and long-term savings.

Last Reviewed: January 23, 2025

When Crossroads Christian Fellowship in Rockford, Illinois, a church with a new 300-seat sanctuary, needed new flooring for a large portion of its administrative area, Pastor Randy Hargate researched the choices. “There were many types of flooring to choose from,” he says, “everything from hardwood to carpeting.”

The options available to the church varied widely in price—but the purchase price was not Hargate’s primary consideration in making his decision. Instead, he based his decision on the total lifecycle cost, a strategy long-known in business circles, and one that church leaders and business administrators can use to help ensure better, longer-lasting purchases get made.

The pastor did his homework, studying the utility of the products relative to their total costs, which included the prices of the flooring, the costs of installation, the costs of maintenance throughout each product’s lifetime, and the eventual replacement costs, among other things.

“After exploring the installation problems associated with hardwood and our all-cement floor, and the carpeting possibility, which did not seem to work for us, I decided to go with rubber-plank flooring,” explains Hargate.

Once he chose the best possible solution based on several factors, only then did he turn his attention to the best possible price. “Our local stores were not very aggressive for the sale, so I went on the Net and shopped,” he says.

That effort saved the church 37 percent compared to the local dealer’s price.

Had Hargate focused solely on the lowest price, it may have led to an unsatisfactory product, and quite possibly a higher overall cost in the long run. Had he focused on the highest quality product available, it may have led to a higher-priced selection that didn’t best apply to his church’s situation.

His situation illustrates the usefulness of calculating lifecycle costs, serving as a vivid reminder that rock-bottom prices don’t always equate to good stewardship for churches, even when tougher economic times tighten budgets for decision-makers.

Don’t Think Like a Shopper

In the corporate world, money is spent to further the business goals of the corporation. Executives are held accountable by a board of directors, employees, shareholders, and creditors for how money is spent. Likewise, people who donate funds to churches hold their leaders accountable for how finances are handled. While they aren’t looking for a financial return on their money, donors do expect the money to effectively advance ministry goals. It’s often called “stewardship,” but the definitions churches use often are short-sighted ones.

Good stewardship is not about getting the lowest price possible for a product or service. Nor is it about buying the highest quality available. Rather, it’s about getting the most effective use from ministry funds. There are right ways and wrong ways to evaluate a potential purchase. Unfortunately, many ministry dollars are wasted on “good deals.”

As consumers, we are ingrained with the importance of purchase price. Retail businesses understand the shopper’s fixation with price, and they work hard to create the reputation of offering the lowest purchase price. Quality, value, and the true costs of purchasing and owning the product are often secondary thoughts.

But business and ministry leaders cannot afford to shop by price alone. Inferior goods can jeopardize the business or ministry and its reputation. Like business leaders, ministry leaders should seek out companies that offer commercial-quality products and services. The same principles used for procuring high-value items in a Fortune 500 company should be applied when purchasing items for a church of any size.

Pastor Hargate says churches should use the same purchasing principles as a commercial enterprise. “I have found that a church is considered commercial by the building departments of our city inspector’s office, and that it is proved to be commercial when you look at the wear and tear experienced on most everything in a church,” he says.

What differentiates a commercial-buyer mindset from the average consumer’s mindset? Before considering purchase price, a commercial buyer needs to investigate many other factors, including:

  • Delivery cost.
  • Installation cost.
  • Annual maintenance cost.
  • Operating cost.
  • Operator training cost.
  • Rework costs due to inferior quality.
  • Insurance cost.
  • Useful lifetime expected.
  • Disposal cost.

Other considerations include performance, appearance, aesthetics, and environmental impact—factors that are difficult to assign a dollar amount to, but might be very important to the purchasing decision. Considering all these factors in the aggregate is much more important than purchasing on price alone.

Dig Deeper

The expression “total lifecycle cost” is a common part of business vernacular in almost every industry. And although total lifecycle cost considerations sound simple, they often require buyers to shed their purchasing habits as consumers and take on new purchasing habits as commercial buyers.

“Aside from the purchase of a disposable commodity where price point is everything, stewardship is about the wise use of God’s resources,” says Dr. Thomas McElheny, founder and chief executive officer of ChurchPlaza, a leading provider of quality products and services to the church market. McElheny believes that value is a combination of many variables, including price, quality, and other intangibles, such as informed service and guarantees.

Approaching purchases with the total cost of ownership in mind gets to the essence of value, according to Tom Nickell, president and CEO of Lightworks New Media, developer of Web Medley, a solution to aid congregations in reaching out and staying connected with their members. “Wise stewardship can be viewed as realizing the highest usage of the resources available to the church—getting the most value out of those resources, whether they are money or time,” he says. “A wise steward of church resources should be looking at the overall value of any purchase decision for the church. That is far beyond simply looking at the initial purchase price.”

There is little doubt that real value can be achieved when the total cost of ownership is a guiding principle. However, for many churches, such a practice is dependent upon a committee or acquisition team that possesses good business sense and some knowledge of commercial purchasing practices.

“Having a church large enough to find people with the background needed to contribute the information needed to make a wise purchase is a great luxury,” Hargate says. “When sought out, these people are not only willing to contribute their experience but likely to direct you to a purchase and the most cost-effective place to make the acquisition. They can often use their influence to orchestrate volunteer labor to install the purchase or negotiate a discount.”

Run the Numbers

Churches can approach a life-cycle purchasing mentality many ways. One method is to devise a list of questions to help ascertain the total lifecycle cost of the product. Examples of the types of questions to ask include:

  • What are the options regarding materials of construction?
  • Are spare parts required, and if so, what is their cost and availability?
  • What is the lifespan of each type of material?
  • How much will regular service and maintenance cost?

Put those questions in a tabular form, and answer them for several different options. The results will help you make a better buying decision and document why you made the decision—which is helpful should someone question what was done.

McElheny recommends an equation that includes price, plus product quality, plus services and guarantees, plus reputation of the supplier. Quantify each factor on a scale of one to ten, with a double rating for reputation of the supplier. Add the total for each option. “Run the numbers and make a decision,” McElheny says. “It will usually be the best one.”

An example of this might be a heat pump purchase where different models and manufacturers are being evaluated. Points may be allocated for parts warranties, such as the heat pump’s compressor and heat exchanger, giving more points for lifetime warranty, versus ones lasting three or five years. Points could also be allocated for the energy ratings of the different models, frequency of cleaning required, and other factors. The purchasing committee could consult overall ratings of the manufacturers from sources, such as associations and nonprofits that evaluate such equipment. The overall ranking by third parties could be given a greater weight in the points allocation of the purchase decision.

Nickell says he stresses looking ahead three to five years or another reasonable timeframe for what is being purchased. Add up the costs, which should include maintenance, upgrades, and repairs. This will illuminate the potential value to the church over that timeframe.

“The values placed on the benefits may be different, or determined in different ways,” Nickell says. “But the basic approach should still be the same. As accurately as possible, determine the overall costs over the product life, and then weigh them with the value likely to be realized by the church over the life of the product.”

Jim Romeo is a freelance writer in Virginia.

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Understanding the Consequences of Losing Tax Exemption for Churches

Learn what happens if your church loses its tax-exempt status and how it could affect finances, donations, and legal protections.

Last Reviewed: January 1, 2025

Q: I am aware that churches risk the loss of their tax-exempt status if they participate in political campaigns. Several people in our congregation would like for our church to be more politically active. As a practical matter, what difference would it make if we lost our tax-exempt status?


Implications of Losing Tax-Exempt Status

Losing tax-exempt status would significantly impact your church in several ways. Here are the key consequences:

  • The church’s net income would be subject to federal and state income taxation (except in states without an income tax).
  • Donors would no longer be able to deduct their contributions to the church.
  • The church would be ineligible to establish or maintain 403(b) tax-sheltered annuities.
  • The church could lose its property tax exemption under state law.
  • The church could lose its sales tax exemption under state law.
  • The church could lose its exemption from unemployment taxes under state and federal law.
  • There may be a negative impact on the church’s zoning classification.
  • Preferential mailing rates may no longer apply.
  • State laws may require the church to register its securities.

Impact on Ministers and Congregants

  • Nondiscrimination rules for certain fringe benefits, such as medical insurance premiums, would apply.
  • The housing allowance for ministers may be affected in some cases.
  • The exempt status of ministers who opted out of Social Security could be impacted.
  • Protections under the Church Audit Procedures Act would no longer apply.
  • State charitable solicitation exemptions may no longer apply.
  • The church may lose exemptions under federal and state civil rights laws regarding religious discrimination.
  • The church may no longer qualify for exemptions under the public accommodation provisions of the Americans with Disabilities Act (ADA).

Why Churches Must Be Cautious

Clearly, any activity that jeopardizes a church’s tax-exempt status must be addressed with utmost seriousness. The potential consequences span financial, legal, and operational domains, directly impacting your congregation and mission.

FAQs About Losing Tax-Exempt Status

1. Can a church regain its tax-exempt status after losing it?

Yes, but the process involves reapplying with the IRS, demonstrating compliance, and meeting all requirements.

2. What activities could cause a church to lose its tax exemption?

Engaging in political campaigns, excessive lobbying, or operating in a commercial manner unrelated to its mission can jeopardize exemption.

3. How does losing tax exemption affect church donations?

Donors would no longer receive tax deductions for their contributions, potentially decreasing giving.

4. Are there alternatives to mitigate risks of losing exemption?

Consult legal counsel to ensure compliance with tax laws, and implement governance practices that align with IRS requirements.

Additional Resources

The editorial team of Church Law & Tax is made up of Matthew Branaugh, attorney-at-law, and Rick Spruill, digital content manager.

“Privileged” v. “Confidential” Communications in Church

Confidentiality and privileged communication are not the same thing. It is important to understand this for pastors.

Q: What is the difference between “privileged” communications and “confidential” communications?


The concepts of privilege and confidentiality are often confused.

The “clergy-penitent privilege” is a rule of evidence that protects clergy from having to testify in judicial proceedings about communications made to them in confidence while acting in their professional capacity as spiritual advisors. The important point to note is that privileges pertain to testimony in judicial proceedings, including court-room testimony and depositions.

“Confidentiality” is a much broader concept, and refers to a duty not to disclose to anyone the substance of communications shared in confidence. Confidentiality is distinguished from privilege in two ways.

First, the duty of confidentiality is not limited to judicial proceedings.

Second, it is an ethical rather than a legal duty. While the impropriety of disclosing confidential information is universally acknowledged, few clergy have been found legally accountable for unauthorized disclosures. This is because the duty of clergy to preserve confidences has traditionally been considered to be a moral rather than a legal obligation.

No law prevents clergy from sharing confidences. However, in recent years a few clergy have been sued for divulging confidences on the basis of an alleged “duty of confidentiality.” Only two courts have found clergy liable for divulging confidential information. Any other cases addressing this important topic will be addressed fully in this newsletter.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Can Church Members Vote to Suspend Bylaws at a Business Meeting?

Most of the time, a church cannot suspend bylaws willy-nilly due to important legal and procedural considerations.

Q: Our church bylaws state that board members serve a maximum of six years in office. Our church is in the midst of a construction project, and one of our board members is a contractor who has provided invaluable assistance to the church during this project. Many of the members wanted this person to remain on the board following the expiration of his term of office. A member made a motion to “suspend the bylaws” to allow this to happen. This motion did not pass, but it raised a question in our minds concerning the legality of suspending bylaws. Can church members, at a duly called business meeting, take action to suspend the bylaws?


In most cases, the answer is no. Consider these 10 points:

One

State nonprofit corporation laws under which many churches are incorporated generally make no provision for the suspension of bylaws.

Two

Suspension of bylaws is an extraordinary action that is not found in most church bylaws, but it is important to confirm that this is the case.

Three

If your church bylaws allow for their own suspension, then be sure to comply with any procedural requirements. For example, the bylaws of some public charities and for-profit corporations provide for their own suspension, but they typically require a super-majority vote, such as two-thirds or three-fourths of the members present.

Four

Many churches have adopted the current version of Robert’s Rules of Order as their official body of parliamentary procedure governing church business meetings. Section 25 of Robert’s Rules of Order states: “Rules contained in the bylaws (or constitution) cannot be suspended no matter how large the vote in favor of doing so or how inconvenient the rule in question may be unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a [procedural] rule of order.” For churches that have not formally adopted any body of parliamentary procedure, Robert’s Rules of Order is persuasive authority. Section 2 of Robert’s Rules of Order states: “Although it is unwise for an assembly or a society to attempt to function without formally adopted rules of order, a recognized parliamentary manual may be cited under such conditions as persuasive.”

Five

Some corporations have amended their bylaws to remove a provision authorizing their suspension. One common reason for doing so is that a provision authorizing bylaw suspension is anti-democratic. That is, the bylaws are adopted by the corporate membership following an intensive period of drafting and consideration. Permitting this fundamental legal document, or a provision therein, to be suspended by a specified percentage of members present at an annual or specially called meeting of the members typically will result in a relatively small minority of the total membership dictating a suspension of the bylaws.

Six

Churches that choose to provide for the suspension of their bylaws can limit potential problems by requiring a super-majority vote and by limiting the suspension option to specific bylaw articles or sections.

Seven

In a famous case, Supreme Court Justice Oliver Wendell Holmes noted that “hard cases make bad law.” The point being that bad precedents often result from difficult circumstances. Churches that feel compelled to suspend their bylaws, even when legally authorized, may end up regretting doing so. At a minimum, they will be establishing a precedent that may be referenced on many future occasions whenever an emergency arises. The very concept of corporate bylaws being subject to suspension is at odds with the fundamental nature of bylaws as a set of rules governing corporate practice and administration. In one sense, the bylaws are the one document that protects a church against anarchy. Any compromise to the stability of a church’s bylaws raises the potential for future problems.

Eight

Bylaws typically provide for their own amendment. In many cases, bylaw amendments take effect immediately. Bylaw amendments should be viewed as an alternative to bylaw suspension.

Nine

Proper drafting of bylaws often can avoid the clamor for their suspension that may arise out of temporary emergencies. Church leaders should periodically have their bylaws reviewed by legal counsel.

Ten

Suspending the bylaws, when not authorized, will result in a “cloud” over the integrity and legitimacy of whatever action is taken while the bylaws are suspended.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Church Employee Privacy: Legal Boundaries for Phones, Emails, and Computers

Churches must navigate complex legal and ethical issues when accessing employee phone calls, emails, and computer files. Learn how federal laws like the Wiretap Act, state privacy laws, and best practices affect workplace monitoring in ministry settings.

Last Reviewed: January 29, 2025

A difficult situation can arise when church staff members misuse electronic devices provided by the church.
Consider this real-world scenario:

Case:
Pastor Corey, a youth pastor, was overheard by a secretary having a “romantic” phone conversation with a woman who was not his wife.
The senior pastor, upon learning this, accessed Pastor Corey’s work computer and discovered incriminating emails and downloaded pornography.
The church board voted to dismiss Pastor Corey.
When informed, he claimed his privacy rights had been violated.

This situation raises critical questions for churches:

  • Do churches have the right to access employee computers and telephone calls?
  • What are the risks if they do?

The Reality of the “Electronic Workplace”

Many youth pastors work in an electronic environment, using church-provided:

  • Computers (often with internet access)
  • Cell phones

This raises important privacy issues.
Can senior pastors or staff access a youth pastor’s church-provided computer or telephone without notice or consent?

Let’s look at two real-world examples:


Example 1: Unauthorized Computer Access

  • Pastor Dave, a youth pastor, leaves for vacation.
  • The senior pastor, looking for a letter, accesses Pastor Dave’s computer and finds pornographic images.
  • The board terminates Pastor Dave’s employment.
  • Pastor Dave claims his privacy rights were violated by the unauthorized search.

Example 2: Overhearing a Phone Call

  • Pastor Scott, a youth pastor, is overheard on a church telephone by a secretary.
  • The secretary hears him engaged in a “romantic” conversation with someone other than his wife.
  • Pastor Scott admits the conversation occurred but claims his privacy was violated.

What Privacy Rights Exist?

Can a church dismiss an employee for what they discover on a church-provided device or phone?
The answer lies in several important federal laws—and how carefully the church operates within them.


The Electronic Communications Privacy Act (Wiretap Act)

The Wiretap Act prohibits the intentional interception of:

  • Wire communications (like telephone calls)
  • Oral or electronic communications

However, there’s an important “business extension” exemption.
Churches may legally intercept calls if:

  1. The telephone equipment was provided by a communications provider or properly connected.
  2. The device was used in the ordinary course of business.

Why “Ordinary Course of Business” Matters

  • If the call is business-related, monitoring may be legal.
  • If the call is personal, monitoring is probably not legal.

Key Problem for Churches:
Most churches allow occasional personal calls, even when policies discourage them.
If personal calls are allowed, claiming calls are always “business” becomes much harder.

Bottom line:
If a church staff member picks up a phone and hears a personal call, they must immediately hang up.
Continuing to listen could expose both the individual—and the church—to criminal and civil liability.


How Courts Have Interpreted the Wiretap Act

Court Example 1: Listening to a Personal Call

  • A supervisor overheard an employee discussing a job interview.
  • The court ruled the monitoring violated the Wiretap Act.
  • Employers must stop listening as soon as they realize a call is personal.

Court Example 2: Recording Employee Phone Calls

  • A business owner recorded 22 hours of an employee’s calls to catch theft.
  • The court ruled this exceeded the “ordinary course of business.”
  • Even if suspicions are legitimate, over-monitoring violates employee privacy rights.

Consent: A Key Defense for Churches

The Wiretap Act allows interception of communications with employee consent.
Churches can protect themselves by:

  1. Adopting a written policy informing employees that calls may be monitored.
  2. Explaining the policy to new hires.
  3. Obtaining signed consent from employees.
  4. Posting reminders on phone directories and telephones.

Important:
For current employees, a consent policy may not bind unless they receive something of value (like a raise) in exchange for agreeing.
Consult a local attorney for proper implementation.


The Stored Communications Act

The Stored Communications Act prohibits unauthorized access to:

  • Electronic communications while in storage (such as email stored on external servers like Hotmail).

Key Point for Churches:
Accessing emails stored locally (on a church computer) typically does not violate the Act.
However, accessing an employee’s personal email account without consent could violate the Act—and may also trigger invasion of privacy claims.

Best practice:
Consult an attorney before accessing employee emails.


Don’t Forget About State Privacy Laws

Many states have their own electronic privacy laws that:

  • Prohibit or limit monitoring calls or accessing electronic communications.
  • May impose stricter rules than federal law.

Church leaders must check both state and federal laws before monitoring employees.


Invasion of Privacy: Another Legal Risk

Invasion of privacy is a separate legal concept from the Wiretap or Stored Communications Acts.

It occurs when:

  • Someone intrudes on private matters.
  • The intrusion is highly offensive to a reasonable person.

Examples of intrusion:

  • Eavesdropping on private calls
  • Searching private emails
  • Accessing private files (such as bank statements or personal mail)

Even if no federal or state law is technically broken, churches could still be sued for invasion of privacy.


Final Takeaways for Church Leaders

Before accessing an employee’s phone calls, computer files, or emails:

  • Ensure you have legal justification.
  • Obtain employee consent in writing whenever possible.
  • Hang up immediately if you overhear a personal conversation.
  • Consult legal counsel before taking any action that could expose the church to liability.

Navigating employee privacy issues carefully will protect your church—and ensure that any discipline taken is both fair and legally sound.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Church Liability and ‘Negligent Selection’

Is a church leader liable for not screening someone they know?

Last Reviewed: February 13, 2025

Q: If a pastor does no screening for persons he knows personally, has he exposed the church to a risk of liability?


Negligent selection

When hiring anyone, you should be familiar with the legal principle of negligent selection. The term negligence means carelessness or a failure to exercise reasonable care. Negligent selection, then, means carelessness or a failure to exercise reasonable care in the selection of a worker. Consider the following examples:

Example. A church allows Bob to serve as a Sunday School teacher in a 3rd grade class despite its knowledge that Bob engaged in inappropriate sexual relations with a child in another church. The senior pastor wants to give Bob a “second chance.” Six months after being hired, a parent alleges that Bob molested her adolescent daughter. The church is later sued by the victim and her mother, who allege that the church is responsible for Bob’s misconduct on the basis of negligent selection.

Example. A youth pastor asks a church member if she would drive several members of the church youth group to an activity. The member agrees to do so. While driving to the activity, the member is involved in an accident while driving at an excessive rate of speed. Some of the children are injured. Parents later learn that the driver had a suspended driver’s license as a result of numerous traffic violations. No one at the church was aware of the member’s driving history, and no one ever attempted to find out. The church is later sued by two of the families, who allege that the church is responsible for the driver’s actions on the basis of negligent selection.

These examples illustrate how a church’s negligence in the selection of a worker can lead to liability. It is important to recognize that churches are not automatically liable for every injury that occurs on their premises or in the course of their activities. Generally, they are responsible only for those injuries that result from their negligence. It is therefore essential for churches to exercise reasonable care in the selection of workers to reduce the risk of liability based on negligent selection. Here are some practical ways that this risk can be managed:

Reasonable care

Churches must exercise reasonable care in the selection of youth and children’s workers in order to avoid potential liability based on negligent selection. Churches can significantly reduce the risk of such incidents by taking a few simple precautions, including the following:

Every applicant for youth or children’s work completes a written application form.

At a minimum, the application should ask for the applicant’s name and address, the names of other youth-serving organizations in which the applicant has worked as an employee or volunteer, a full explanation of any prior criminal convictions, and the names of two or more references.

If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver’s license). Child molesters often use pseudonyms.

Obtain a reference from each organization in which the applicant previously worked with minors (other churches, Boy Scouts, coaching, private schools, etc.).

If you do not receive back the written reference forms, then contact the references by telephone and prepare a written memorandum noting the questions asked and the reference’s responses.

Conduct a criminal records check.

There are many kinds available (county, state, and national). For persons who have lived and worked in your state for many years, a state check may be appropriate. For those who have lived in more than one state over the past few years, a national check (or multiple state checks) may be indicated. Many states have online “sex offender registries” that can be checked by anyone at little or no cost. These should always be checked. You may need an attorney to assist you in evaluating the relevance of certain crimes that are disclosed during a records check.

Applicants should be interviewed.

This will provide the church with an opportunity to inquire into each applicant’s background and make a determination as to each person’s suitability for the position under consideration.

Church leaders often “err on the side of mercy” when making employment decisions. This attitude can contribute to a negligent selection claim—if a church gives an applicant a “second chance” despite knowledge of prior sexual misconduct, and the conduct is repeated. What the church views as mercy may be viewed as negligence by a jury.

Drivers

Negligent selection claims are not limited to cases involving sexual misconduct. They can arise anytime that a church’s failure to exercise reasonable care in the selection of an employee or volunteer leads to a foreseeable injury.

A common example is the selection of persons as drivers to transport children or youth.

For example, if a church uses a driver with a suspended drivers license, or with a history of traffic offenses, then it may be responsible on the basis of negligent selection for injuries caused by the driver’s negligence.

To reduce the risk of liability in this context, churches should refrain from using any driver without taking the following steps:

Obtain driver information

Have each prospective driver complete an application form that asks for the person’s driver’s license number, type of driver’s license and expiration date, a description of any driving restrictions, and a history of traffic accidents and moving violations.

Check driving records

Ask the church’s liability insurance carrier to check on the individual’s driving record. Often, insurance companies will perform this task if requested, at no charge. The insurance company should be asked to update its research on all drivers of church vehicles periodically, to screen out persons with a recent history of unsafe driving.

Cull unsafe, negligent drivers

Discontinue using any driver if reports are received that he or she is operating a church vehicle in a negligent manner. Fully investigate such reports, and do not use the individual again unless the investigation clearly demonstrates that the complaints were without merit.

If the prospective driver is a new member, then ask for the names and addresses of other churches in which he or she has worked as a driver. Contact those churches and ask if they are aware of facts that would indicate the individual should not be used as a driver. Make a written record of such contacts.

Periodically invite a local law enforcement officer to speak to all drivers concerning safety issues.

Require all drivers to immediately inform the church of any traffic convictions.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Polygraph Testing and Church Employees: Understanding Legal Restrictions

Church leaders may consider polygraph testing when dealing with staff misconduct, but federal law imposes strict limits. Learn how the Employee Polygraph Protection Act applies to churches, key exemptions, and legal best practices.

Last Reviewed: January 29, 2025

Church leaders should be familiar with the main provisions of the federal Employee Polygraph Protection Act, since this law may impact churches in some situations. Consider the following:

Application.

The Act applies to every employer engaged in interstate commerce (regardless of the number of employees). The Act contains no special rules or exceptions for religious organizations.

Definitions.

A lie detector includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual.A polygraph means an instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.

Prohibitions.

An employer shall not:

  • Require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test.
  • Use, accept, refer to, or inquire about the results of any lie detector test of an employee or prospective employee.
  • Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding or for exercising any rights afforded by the Act.

Exemptions.

Most government agencies are exempted from the Act. The Act also contains limited exemptions where polygraph tests (but no other lie detector tests) may be administered in the private sector, subject to certain restrictions. These include polygraph tests given to employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation.

Key point. Under the exemption for ongoing investigations of work place incidents involving economic loss, a written or verbal statement must be provided to the employee prior to the polygraph test which explains the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion that the employee was involved in such incident or activity.

Posters.

Federal regulations specify that “every employer subject to the [Act] shall post and keep posted on its premises a notice explaining the Act …. Such notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.” A free copy of the required notice can be obtained from the nearest office of the U.S. Department of Labor, Wage and Hour Division, or by visiting the DOL website (www.dol.gov/esa).

The official poster states, in part:

The Employee Polygraph Protection Act prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment.

PROHIBITIONS

Employers are generally prohibited from requiring or requesting any employee or job applicant to take a lie detector test, and from discharging, disciplining, or discriminating against an employee or prospective employee for refusing to take a test or for exercising other rights under the Act.

EXEMPTIONS

The Act permits polygraph testing, subject to restrictions, of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in economic loss to the employer.

EXAMINEE RIGHTS

Where polygraph tests are permitted, they are subject to numerous strict standards concerning the conduct and length of the test. Examinees have a number of specific rights, including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.

Key point. The Employee Polygraph Protection Act contains no special rules or exceptions for religious organizations, and so the official poster can be used without modification. However, the courts have not addressed the question of whether the Act applies to ministers. For this reason, churches may want to add the following wording to the official poster: “This poster does not take into account the special rules that may apply to ministers.”

Qualifications of examiners.

A polygraph examiner is required to have a valid, current license if the state requires it. The examiner must maintain a minimum of $50,000 bond or professional liability coverage.

Key point. Where polygraph examinations are permitted under the Act, they are subject to strict standards concerning the conduct of the test, including the pre-test, testing and post-test phases of the examination.

Employee rights.

Civil actions may be brought by an employee or prospective employee in federal or state court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment of lost wages and benefits. The action must be brought within three years of the date of the alleged violation.

Conclusion.

Many church leaders have been confronted with accusations of serious wrongdoing by a staff member. When the staff member denies any wrongdoing, church leaders may be tempted to suggest a polygraph. Such a suggestion should never be made without first obtaining legal counsel. This is because the suggestion that a staff member prove his or her innocence via polygraph examination violates the Act. And violating the act exposes the church to potential liability, unless an exemption clearly applies.

This article first appeared in Church Finance Today, April 2008.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

A Part-Time Pastor Wants His Entire Salary Designated as a Housing Allowance

Understand the IRS rules for housing allowances and W-2 forms for part-time pastors with fully designated salaries.

Last Reviewed: January 20, 2025

Q: We have a part-time associate pastor who has asked the church to designate his entire salary as a housing allowance. Do we need to issue him a W-2 form at the end of the year reporting no income?


Understanding Housing Allowances for Part-Time Pastors

This is a surprisingly complex question. The issue stems from amendments to section 6051 of the federal tax code and how it applies to churches. Historically, churches were not required to issue W-2 forms to pastors because their wages are exempt from tax withholding. However, in 1974, Congress enacted the Employee Retirement Income Security Act (ERISA), which introduced new reporting requirements that apply to churches and their employees.

IRS Requirements for Housing Allowance Designations

The 1974 amendment to section 6051 of the tax code states: “Every employer engaged in a trade or business who pays remuneration for services performed by an employee, including noncash payments, must file a Form W-2 for each employee.” This language implies that churches must issue W-2 forms to ministers, even if all of their income is designated as a housing allowance and no taxes are withheld.

However, this requirement raises a practical question: What purpose does it serve to issue a blank W-2 form with no wages or withholdings reported? The W-2 form’s primary purpose is to report wages and withholdings to ensure accurate tax reporting. Submitting a blank form may not align with this purpose, but it does not necessarily relieve churches of the obligation to issue one.

IRS Guidance: Revenue Ruling 2000-6

In 2000, the IRS addressed a similar issue involving election workers. Election workers typically receive small fees for their services, and the IRS concluded that section 6051 does not require reporting compensation that is not subject to withholding for income tax or FICA taxes. The ruling stated:

“Section 6051 requires reporting of compensation subject to either FICA tax or income tax withholding. No reporting is required for items of income that are not subject to withholding of FICA tax or income tax.”

This ruling suggests that a church may not be required to issue a W-2 form to a part-time pastor whose entire income is designated as a housing allowance.

Best Practices for Churches

To ensure compliance and avoid confusion, churches should consider the following steps:

  • Consult a tax professional or attorney familiar with clergy tax laws to confirm whether a W-2 form is necessary for a pastor with no taxable income.
  • If issuing a W-2 form, include the pastor’s name and Social Security number but leave boxes for income and withholdings blank if the entire salary is designated as a housing allowance.
  • Maintain clear documentation of the housing allowance designation in board minutes or a formal resolution.
  • Contact the IRS for clarification on reporting requirements using their centralized call site at 1-866-455-7438, available Monday through Friday, 8:30 a.m. to 4:30 p.m. Eastern Time.

FAQ: Housing Allowances for Part-Time Pastors

1. Can a pastor’s entire salary be designated as a housing allowance?

Yes, as long as the designated amount does not exceed the pastor’s actual housing expenses or the fair rental value of the home, including utilities and furnishings.

2. Do churches need to issue a W-2 form if a pastor’s entire salary is a housing allowance?

The IRS may not require a W-2 form in this scenario, based on Revenue Ruling 2000-6. However, it’s advisable to consult with a tax professional to confirm.

3. What documentation should the church maintain for housing allowances?

Churches should record housing allowance designations in board meeting minutes or a formal resolution before the allowance is paid.

4. What happens if the pastor’s housing allowance exceeds actual expenses?

Any portion of the housing allowance that exceeds the pastor’s actual housing expenses must be reported as taxable income on their personal tax return.

For more information, visit IRS.gov or consult a tax advisor experienced in clergy tax matters.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.
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