The Church Audit Procedures Act
Key point 6-03.05. The Church Audit Procedures Act provides churches with a number of important protections in the event of an IRS inquiry or examination. However, there are some exceptions.
Section 7602 of the tax code gives the IRS broad authority to examine or subpoena the books and records of any person or organization for the purposes of (1) ascertaining the correctness of any federal tax return, (2) making a return where none has been filed, (3) determining the liability of any person or organization for any federal tax, or (4) collecting any federal tax. This authority has been held to apply to churches.[124] See, e.g., United States v. Coates, 692 F.2d 629 (9th Cir. 1982); United States v. Dykema, 666 F.2d 1096 (7th Cir. 1981); United States v. Freedom Church, 613 F.2d 316 (1st Cir. 1979).
In 1984 Congress enacted the Church Audit Procedures Act to provide churches with important protections when faced with an IRS audit. The Act's protections are contained in section 7611 of the tax code. Section 7611 imposes detailed limitations on IRS examinations of churches. The limitations can be summarized as follows:
1. Church tax inquiries. Section 7611 refers to church tax inquiries and church tax examinations instead of "audits." A church tax inquiry is defined as any IRS inquiry to a church (with exceptions noted below) for the purpose of determining whether the organization qualifies for tax exemption as a church or whether it is carrying on an unrelated trade or business or is otherwise engaged in activities subject to tax. An inquiry is considered to commence when the IRS requests information or materials from a church of a type contained in church records.
The IRS may begin a church tax inquiry only if
- an appropriate high-level Treasury official (a regional IRS commissioner, or higher Treasury official) reasonably believes on the basis of written evidence that the church is not exempt (by reason of its status as a church), may be carrying on an unrelated trade or business, or is otherwise engaged in activities subject to taxation; and
- the IRS sends the church written inquiry notice containing an explanation of the following: (1) the specific concerns which gave rise to the inquiry, (2) the general subject matter of the inquiry, and (3) the provisions of the tax code that authorize the inquiry and the applicable administrative and constitutional provisions, including the right to an informal conference with the IRS before any examination of church records, and the First Amendment principle of separation of church and state.
Key point. In 2009 a federal court in Minnesota ruled that the IRS Director of Exempt Organizations (Examinations) was not a "high-level Treasury official" and therefore was not authorized to initiate a church tax inquiry on the basis of a reasonable belief determination that sufficient written evidence existed to warrant a church tax inquiry.[125] U.S. v. Living Word Christian Center, 2009 WL 250049 (D. Minn. 2009). The court concluded that only a regional IRS commissioner, or higher Treasury official, qualified as a "high-level Treasury official" as required by the Church Audit Procedures Act. It rejected the IRS's argument that certain lower-level officials were better qualified to make this determination. This ruling basically shut down IRS efforts to enforce the campaign prohibition by churches.
In 2012 the Freedom From Religion Foundation (FFRF) sued the IRS to compel it to enforce the ban on campaign intervention by churches. It asked the court to authorize a high-ranking official within the IRS to approve and initiate enforcement of the restrictions of section 501(c)(3) against churches and religious organizations, including the electioneering restrictions, as required by law. In 2014 the parties reached a settlement of the case that was approved by the court. The court's order reads, in part: "The reason the parties seek the dismissal is that the FFRF is satisfied that the IRS does not have a policy at this time of non-enforcement specific to churches and religious institutions." The FFRF brief in support of the settlement and its motion to dismiss the lawsuit states: "Information received from the Department of Justice … indicated that the IRS has a procedure in place for signature authority to initiate church tax investigations/examinations."
2. Church tax examinations. The church is allowed a reasonable period in which to respond to the concerns expressed by the IRS in its church tax inquiry. If the church fails to respond within the required time, or if its response is not sufficient to alleviate IRS concerns, the IRS may, generally within 90 days, issue a second notice, informing the church of the need to examine its books and records.
After the issuance of a second notice, but before the commencement of an examination of its books and records, the church may request a conference with an IRS official to discuss IRS concerns. The second notice will contain a copy of all documents collected or prepared by the IRS for use in the examination.
The IRS may begin a church tax examination of a church's records or religious activities only under the following conditions: (1) the requirements of a church tax inquiry have been met; and (2) an examination notice is sent by the IRS to the church at least 15 days after the day on which the inquiry notice was sent, and at least 15 days before the beginning of such an examination, containing the following information: (a) a copy of the inquiry notice, (b) a specific description of the church records and religious activities which the IRS seeks to examine, (c) an offer to conduct an informal conference with the church to discuss and possibly resolve the concerns giving rise to the examination, and (d) a copy of all documents collected or prepared by the IRS for use in the examination, and the disclosure of which is required by the Freedom of Information Act.
Key point. If at any time during the inquiry process the church supplies information sufficient to alleviate the concerns of the IRS, the matter will be closed without examination of the church's books and records.
3. Church records. Church records (defined as all corporate and financial records regularly kept by a church, including corporate minute books and lists of members and contributors) may be examined only to the extent necessary to determine the liability for and amount of any income, employment, or excise tax.
Case study. A federal district court in South Carolina rejected an attempt by a religious corporation to block IRS summonses seeking the production of the corporation's bank records at eight banks. In rejecting the church's argument, the court observed:
Third-party summonses are governed by section 7609, not section 7611, even when the summons is issued in connection with a church tax inquiry. … Legislative history confirms that section 7611 is inapplicable to third-party summonses. … The House Conference report [in connection with section 7609] stated the "church audit procedures" did not apply to examination of the types of third-party records sought here, explaining as follows: "Records held by third parties (e.g., cancelled checks or other records in the possession of a bank) are not considered church records for purposes of the conference agreement. Thus … the IRS is permitted access to such records without regard to the requirements of the church audit procedures.
The court added that "occasional correspondence from the IRS that did not constitute church tax inquiries does not count" in applying the Church Audit Procedures Act's prohibition of repeat inquiries addressing the same issue within a 5-year period. Bible Study Time v. United States, 2017 WL 897818 (D.S.C. 2017).
4. Religious activities. Religious activities may be examined only to the extent necessary to determine whether an organization claiming to be a church is, in fact, a church.
5. Deadline for completing church tax inquiries. Church tax inquiries not followed by an examination notice must be completed not later than 90 days after the inquiry notice date. Church tax inquiries and church tax examinations must be completed not later than two years after the examination notice date. The two-year limitation can be suspended (1) if the church brings a judicial proceeding against the IRS; (2) if the IRS brings a judicial proceeding to compel compliance by the church with any reasonable request for examination of church records or religious activities; (3) for any period in excess of 20 days (but not more than six months) in which the church fails to comply with any reasonable request by the IRS for church records; or (4) if the IRS and church mutually agree.
Key point. A federal appeals court ruled that the revocation of a church's tax-exempt status by the IRS could not be challenged on the ground that the IRS's examination of the church exceeded the two-year limit imposed by the Church Audit Procedures Act.[126] Music Square Church v. United States, 2000-2 USTC ¶50,578 (Fed. Cir. 2000). The court noted that the Act specifies that "no suit may be maintained, and no defense may be raised in any proceeding … by reason of any noncompliance by the [IRS] with the requirements of this section."
6. Written opinion of IRS legal counsel. The IRS can make a determination, based on a church tax inquiry or church tax examination, that an organization is not a church that is exempt from federal income taxation, or that is qualified to receive tax-deductible contributions, or that otherwise owes any income, employment, or excise tax (including the unrelated business income tax), only if the appropriate regional legal counsel of the IRS determines in writing that there has been substantial compliance with the limitations imposed under section 7611 and approves in writing of such revocation of exemption or assessment of tax.
7. Statute of limitations. Church tax examinations involving tax-exempt status or the liability for any tax other than the unrelated business income tax may be begun only for any one or more of the three most recent taxable years ending before the examination notice date. For examinations involving unrelated business taxable income, or if a church is proven not to be exempt for any of the preceding three years, the IRS may examine relevant records and assess tax as part of the same audit for a total of six years preceding the examination notice date. For examinations involving issues other than revocation of exempt status or unrelated business taxable income (such as examinations pertaining to employment taxes), no limitation period applies if no return has been filed.
8. Limitation on repeat inquiries and examinations. If any church tax inquiry or church tax examination is completed and does not result in a revocation of exemption or assessment of taxes, then no other church tax inquiry or church tax examination may begin with respect to such church during the five-year period beginning on the examination notice date (or the inquiry notice date if no examination notice was sent) unless such inquiry or examination is (1) approved in writing by the Assistant Commissioner of Employee Plans and Exempt Organizations of the IRS, or (2) does not involve the same or similar issues involved in the prior inquiry or examination. The five-year period is suspended if the two-year limitation on the completion of an examination is suspended.
Case study. A federal district court in South Carolina ruled that "occasional correspondence from the IRS that does not constitute church tax inquiries does not count" in applying the Church Audit Procedures Act's prohibition of repeat inquiries addressing the same issue within a 5-year period. Bible Study Time v. United States, 2017 WL 897818 (D.S.C. 2017).
9. Exceptions. The limitations on church tax inquiries and church tax examinations do not apply to
- inquiries or examinations pertaining to organizations other than churches (the term church is defined by section 7611 as any organization claiming to be a church, and any convention or association of churches; the term does not include separately incorporated church-affiliated schools or other separately incorporated church-affiliated organizations).
- any case involving a knowing failure to file a tax return or a willful attempt to defeat or evade taxes.
- criminal investigations.
- the tax liability of a contributor to a church, or inquiries regarding assignment of income to a church or a vow of poverty by an individual followed by a transfer of property.[127] See, e.g., St. German of Alaska Eastern Orthodox Catholic Church v. Commissioner, 840 F.2d 1087 (2nd Cir. 1988); United States v. Coates, 692 F.2d 629 (9th Cir. 1982); United States v. Life Science Church of America, 636 F.2d 221 (8th Cir. 1980); United States v. Holmes, 614 F.2d 895 (5th Cir. 1980); United States v. Freedom Church, 613 F.2d 316 (1st Cir. 1979).
- the tax liability of pastors and other church staff members.[128] See, e.g., Thomas F. v. Commissioner, 101 T.C.M. 1550 (2011); Pennington v. U.S. 2010 WL 417410 (W.D. Tex. 2010).
- routine IRS inquiries, including (1) the filing or failure to file any tax return or information return by the church; (2) compliance with income tax or FICA tax withholding; (3) supplemental information needed to complete the mechanical processing of any incomplete or incorrect return filed by a church; (4) information necessary to process applications for exempt status, letter ruling requests, or employment tax exempt requests; or (5) confirmation that a specific business is or is not owned by a church.
10. Extension of audit protections to church payroll compliance. In the past, the IRS did not apply the protections of section 7611 to employment tax inquiries in which it sought to determine a church's compliance with payroll tax reporting requirements. The current copy of the IRS Internal Revenue Manual specifies: "Section 7611 procedures do not apply to employment tax inquiries."
However, on December 17, 2015, the IRS issued an internal memorandum "to provide clarification for and updates to [IRS examiners'] responsibilities regarding employment tax examinations of churches." The IRS memo notes that "prior to this guidance memo [IRS agents] were instructed that section 7611 procedures do not apply to employment tax inquiries." The IRS memo amends the Internal Revenue Manual with the insertion of the following new section 4.23.2.13(2): "Section 7611 procedures apply to employment tax inquiries. Examiners should not initiate any examinations on a church. If for some reason an employment tax examiner encounters a church employment tax issue, the examiner should immediately contact the Program Manager, Exam, Programs and Review (EPR) in TE/GE Exempt Organizations Examinations."
The amendment is effective immediately and will be incorporated into the next revision of the Internal Revenue Manual.
11. Application to excess benefit transactions. For many years, the IRS asked Congress to provide a remedy other than outright revocation of exemption that it could use to combat excessive compensation paid by exempt organizations. In 1996 Congress responded by enacting section 4958 of the tax code. Section 4958 empowers the IRS to assess intermediate sanctions in the form of substantial excise taxes against insiders (called "disqualified persons") who benefit from an excess benefit transaction.
Section 4958 also allows the IRS to assess excise taxes against a charity's board members who approved an excess benefit transaction. These excise taxes are called "intermediate sanctions" because they represent a remedy the IRS can apply short of revocation of a charity's exempt status. While revocation of exempt status remains an option whenever a tax-exempt organization enters into an excess benefit transaction with a disqualified person, it is less likely that the IRS will pursue this remedy now that intermediate sanctions are available.
The tax regulations specify that
the procedures of section 7611 will be used in initiating and conducting any inquiry or examination into whether an excess benefit transaction has occurred between a church and a disqualified person. For purposes of this rule, the reasonable belief required to initiate a church tax inquiry is satisfied if there is a reasonable belief that a section 4958 tax is due from a disqualified person with respect to a transaction involving a church. [129] Treas. Reg. 53.4958-8(b).
12. Remedy for IRS violations. If the IRS has not complied substantially with (1) the notice requirements, (2) the requirement that an appropriate high-level Treasury official approve the commencement of a church tax inquiry, or (3) the requirement of informing the church of its right to an informal conference, the church's exclusive remedy is a stay of the inquiry or examination until such requirements are satisfied.
The fact that the IRS has authority to examine church records and the religious activities of a church or religious denomination does not necessarily establish its right to do so. The courts have held that an IRS summons or subpoena directed at church records must satisfy the following conditions to be enforceable.
13. Issued in good faith. Good faith in this context means that (1) the investigation will be conducted pursuant to a legitimate purpose; (2) the inquiry is necessary to that purpose; (3) the information sought is not already within the IRS's possession; and (4) the proper administrative steps have been followed. In United States v. Powell, 379 U.S. 48 (1964), the United States Supreme Court held that in order to obtain judicial enforcement of a summons or subpoena, the IRS must prove "that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already in the Commissioner's possession, and that the administrative steps required by the tax code have been followed." Powell did not involve an IRS examination of church records. In United States v. Holmes, 614 F.2d 985 (5th Cir. 1980), a federal appeals court held that section 7605(c) narrowed the scope of the second part of the Powell test from mere relevancy to necessity in the context of church records, since it required that an examination of church records be limited "to the extent necessary." The "necessity test" should apply to church inquiries or examinations conducted under section 7611, since the same language is employed.[130] United States v. Church of Scientology, 90-2 U.S.T.C. ¶ 50,349 (D. Mass. 1990).
14. No violation of the church's First Amendment right to freely exercise its religion. An IRS subpoena will not violate a church's First Amendment rights unless it substantially burdens a legitimate and sincerely held religious belief and is not supported by a compelling governmental interest that cannot be accomplished by less restrictive means. This is a difficult test to satisfy, not only because few churches can successfully demonstrate that enforcement of an IRS summons or subpoena substantially burdens an actual religious tenet, but also because the courts have ruled that maintenance of the integrity of the government's fiscal policies constitutes a compelling governmental interest that overrides religious beliefs to the contrary.[131] See, e.g., St. German of Alaska Eastern Orthodox Catholic Church v. Commissioner, 840 F.2d 1087 (2nd Cir. 1988); United States v. Coates, 692 F.2d 629 (9th Cir. 1982); United States v. Life Science Church of America, 636 F.2d 221 (8th Cir. 1980); United States v. Holmes, 614 F.2d 895 (5th Cir. 1980); United States v. Freedom Church, 613 F.2d 316 (1st Cir. 1979).
15. No impermissible entanglement of church and state. [132] See generally United States v. Coates, 692 F.2d 629 (9th Cir. 1982); United States v. Grayson County State Bank, 656 F.2d 1070 (5th Cir. 1981); EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981) (application of 1964 Civil Rights Act's reporting requirements to seminary did not violate First Amendment). Federal law provides that if the IRS wants to retroactively revoke the tax-exempt status of a church, it must show either that the church "omitted or misstated a material fact" in its original exemption application or that the church has been "operated in a manner materially different from that originally represented."[133] Treas. Reg. 601.201(n)(6)(i).
Although IRS authority to examine and subpoena church records is broad, it has limits. To illustrate, one subpoena was issued against all documents relating to the organizational structure of a church since its inception; all correspondence files for a three-year period; the minutes of the officers, directors, trustees, and ministers for the same three-year period; and a sample of every piece of literature pertaining to the church.[134] United States v. Holmes, 614 F.2d 985 (5th Cir. 1980). See also United States v. Trader's State Bank, 695 F.2d 1132 (9th Cir. 1983) (IRS summons seeking production of all of a church's bank statements, correspondence, and records relating to bank accounts, safe deposit boxes, and loans held to be overly broad). A court concluded that this subpoena was "too far reaching" and declared it invalid. It noted, however, that a "properly narrowed" subpoena would not violate the First Amendment. Another federal court that refused to enforce an IRS subpoena directed at a church emphasized that "the unique status afforded churches by Congress requires that the IRS strictly adhere to its own procedures when delving into church activities."[135] United States v. Church of Scientology of Boston, 739 F. Supp. 46 (D. Mass. 1990). The court also stressed that the safeguards afforded churches under federal law prevent the IRS from "going on a fishing expedition into church books and records."
Table of Contents
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1Definitions and Status
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§ 1.01Distinctions Between the Terms Pastor, Clergy, Minister
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§ 1.02Definition of the Terms Pastor, Clergy, Minister — In General
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§ 1.03Status—Employee or Self Employed
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§ 1.03.01Social Security
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§ 1.03.02Income Taxes
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§ 1.03.03Retirement Plans
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§ 1.03.04Legal Liability
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§ 1.03.05Miscellaneous Federal and State Statutes
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§ 1.04Status—Ordained, Commissioned, or Licensed
2The Pastor-Church Relationship
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§ 2.01Initiating the Relationship—In General
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§ 2.01.01Congregational Churches
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§ 2.01.02Hierarchical Churches
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§ 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister
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§ 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention
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§ 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
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§ 2.01.06Negligent Selection
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§ 2.02The Contract
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§ 2.03Compensation
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§ 2.04Termination
3Authority, Rights, and Privileges
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§ 3.01General Scope of a Minister's Authority
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§ 3.02Officer of the Church Corporation
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§ 3.03Property Matters
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§ 3.04Performance of Marriage Ceremonies
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§ 3.05Exemption from Military Duty
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§ 3.06Exemption From Jury Duty
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§ 3.07The Clergy-Penitent Privilege—In General
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§ 3.07.01A "Communication"
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§ 3.07.02Made in Confidence
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§ 3.07.03To a Minister
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§ 3.07.04Acting in a Professional Capacity as a Spiritual Adviser
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§ 3.07.05In the Course of Discipline
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§ 3.08The Clergy-Penitent Privilege—Miscellaneous Issues
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§ 3.08.01Clergy-Parishioner Relationship
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§ 3.08.02Marriage Counseling
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§ 3.08.03Who May Assert the Privilege
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§ 3.08.04When to Assert the Privilege
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§ 3.08.05Waiver of the Privilege
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§ 3.08.06The Privilege in Federal Courts
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§ 3.08.07Constitutionality of the Privilege
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§ 3.08.08Child Abuse Reporting
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§ 3.08.09Confidentiality
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§ 3.08.10Disclosure to Civil Authorities
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§ 3.08.11Church Records
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§ 3.08.12Death of the Counselee
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§ 3.09Visiting Privileges at Penal Institutions
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§ 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations
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§ 3.11Miscellaneous Benefits
4Liabilities, Limitations, and Restrictions
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§ 4.01Negligence
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§ 4.02Defamation—In General
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§ 4.02.01Pastors Who Are Sued for Making Defamatory Statements
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§ 4.02.02Pastors Who Are Victims of Defamation
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§ 4.02.03Defenses
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§ 4.03Undue Influence
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§ 4.04Invasion of Privacy
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§ 4.05Clergy Malpractice
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§ 4.06Contract Liability
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§ 4.07Securities Law Violations
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§ 4.08Failure to Report Child Abuse
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§ 4.09Diversion of Church Funds
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§ 4.10State Regulation of Psychologists and Counselors
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§ 4.11Sexual Misconduct
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§ 4.11.01Theories of Liability
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§ 4.11.02Defenses to Liability
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5Definitions
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§ 5.01Tax Legislation—Federal
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§ 5.01.01Churches
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§ 5.01.02Mail Order Churches
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§ 5.01.03Other Religious Organizations
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§ 5.01.04Tax Legislation—State
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§ 5.02Zoning Law
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§ 5.02.01Churches
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§ 5.02.02Accessory Uses
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6Organization and Administration
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§ 6.01Unincorporated Associations
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§ 6.01.01Characteristics
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§ 6.01.02Personal Liability of Members
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§ 6.01.03Creation and Administration
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§ 6.02Corporations
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§ 6.02.01The Incorporation Process
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§ 6.02.02Charters, Constitutions, Bylaws, and Resolutions
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§ 6.03Church Records
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§ 6.03.01Inspection
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§ 6.03.02“Accountings” of Church Funds
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§ 6.03.03Public Inspection of Tax-Exemption Applications
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§ 6.03.04Government Inspection of Donor and Membership Lists
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§ 6.03.05The Church Audit Procedures Act
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§ 6.03.06Who Owns a Church’s Accounting Records?
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§ 6.04Reporting Requirements
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§ 6.04.01State Law
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§ 6.04.02Federal Law
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§ 6.05Church Names
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§ 6.06Officers, Directors, and Trustees—In General
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§ 6.06.01Election or Appointment
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§ 6.06.02Authority
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§ 6.06.03Meetings
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§ 6.06.04Removal
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§ 6.07Officers, Directors, and Trustees—Personal Liability
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§ 6.07.01Tort Liability
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§ 6.07.02Contract Liability
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§ 6.07.03Breach of the Fiduciary Duty of Care
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§ 6.07.04Breach of the Fiduciary Duty of Loyalty
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§ 6.07.05Violation of Trust Terms
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§ 6.07.06Securities Law
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§ 6.07.07Wrongful Discharge of an Employee
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§ 6.07.08Willful Failure to Withhold Taxes
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§ 6.07.09Exceeding the Authority of the Board
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§ 6.07.10Loans to Directors
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§ 6.08Immunity Statutes
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§ 6.08.01Directors and Officers Insurance
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§ 6.09Members—In General
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§ 6.09.01Selection and Qualifications
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§ 6.09.02Authority
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§ 6.10Members—Discipline and Dismissal
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§ 6.10.01Judicial Nonintervention
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§ 6.10.02“Marginal” Civil Court Review
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§ 6.10.03Preconditions to Civil Court Review
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§ 6.10.04Remedies for Improper Discipline or Dismissal
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§ 6.11Members—Personal Liability
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§ 6.12Meetings of Members
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§ 6.12.01Procedural Requirements
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§ 6.12.02Minutes
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§ 6.12.03Parliamentary Procedure
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§ 6.12.04Effect of Procedural Irregularities
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§ 6.12.05Judicial Supervision of Church Elections
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§ 6.12.06Who May Attend
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§ 6.13Powers of a Local Church
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§ 6.14Merger and Consolidation
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§ 6.15Dissolution
7Church Property
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§ 7.01Church Property Disputes—In General
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§ 7.02Church Property Disputes—Supreme Court Rulings
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§ 7.03State and Lower Federal Court Rulings
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§ 7.04Church Property Disputes—Dispute Resolution Procedures
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§ 7.05Transferring Church Property
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§ 7.06Zoning Law
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§ 7.07Restricting Certain Activities Near Church Property
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§ 7.08Building Codes
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§ 7.08.01Lead Paint on Church Property
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§ 7.09Nuisance
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§ 7.10Landmarking
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§ 7.11Eminent Domain
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§ 7.12Defacing Church Property
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§ 7.13Restrictive Covenants
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§ 7.14Reversion of Church Property to the Prior Owner
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§ 7.15Materialmen’s Liens
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§ 7.16Religious Discrimination in the Sale or Rental of Church Property
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§ 7.17Removing Disruptive Individuals
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§ 7.18Adverse Possession
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§ 7.19Accounting for Depreciation
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§ 7.20Premises Liability
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§ 7.20.01Liability Based on Status as Invitee, Licensee, or Trespasser
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§ 7.20.02Defenses to Premises Liability
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§ 7.20.03Use of Church Property by Outside Groups
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§ 7.20.04Assaults on Church Property
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§ 7.20.05Skate Ramps
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§ 7.20.06Sound Rooms
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§ 7.21Embezzlement
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§ 7.22Places of Public Accommodation
8Employment Law
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§ 8.01Introduction: Selection of Employees
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§ 8.02New Hire Reporting
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§ 8.03Employment Eligibility Verification
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§ 8.04Immigration
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§ 8.05Negligent Selection
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§ 8.06Introduction: Compensation and Benefits
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§ 8.07Workers Compensation
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§ 8.08Fair Labor Standards Act
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§ 8.08.01Enterprises
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§ 8.08.02Individual Coverage
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§ 8.08.03Federal Court Rulings
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§ 8.08.04Department of Labor Opinion Letters
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§ 8.08.05Exemptions
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§ 8.08.06Ministers
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§ 8.08.07State Laws
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§ 8.08.08Case Studies
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§ 8.09Introduction to Federal Employment and Civil Rights Laws—The “Commerce” Requirement
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§ 8.09.01Counting Employees
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§ 8.10The “Ministerial Exception” under State and Federal Employment Laws
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§ 8.11Procedure for Establishing a Discrimination Claim
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§ 8.12Title VII of the Civil Rights Act of 1964
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§ 8.12.01Application to Religious Organizations
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§ 8.12.02Application to Religious Educational Institutions
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§ 8.12.03Religion as a "Bona Fide Occupational Qualification"
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§ 8.12.04Discrimination Based on Religion or Morals
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§ 8.12.05Sexual Harassment
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§ 8.12.06The Catholic Bishop Case
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§ 8.12.07Failure to Accommodate Employees’ Religious Practices
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§ 8.12.08The Religious Freedom Restoration Act
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§ 8.12.09The Civil Rights Act of 1991
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§ 8.13The Age Discrimination in Employment Act
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§ 8.14The Americans with Disabilities Act
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§ 8.14.01Discrimination in Employment
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§ 8.14.02Discrimination in Public Accommodations
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§ 8.15Family and Medical Leave Act
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§ 8.16Employer “Retaliation” Against Victims of Discrimination
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§ 8.17Discrimination Based on Military Status
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§ 8.18Employee Polygraph Protection Act
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§ 8.19Occupational Safety and Health Act
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§ 8.20Display of Posters
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§ 8.21Discrimination under State Laws
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§ 8.22Termination of Employees
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§ 8.22.01Severance Agreements
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§ 8.23National Labor Relations Act
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§ 8.24Reference Letters
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§ 8.25Employee Evaluations
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§ 8.26Employment Interviews
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§ 8.27Arbitration
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§ 8.28Employee Handbooks
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§ 8.29Employee Privacy
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§ 8.30Insurance
9Government Regulation of Churches
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§ 9.01Introduction
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§ 9.02Regulation of Charitable Solicitations
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§ 9.03Limitations on Charitable Giving
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§ 9.04Federal and State Securities Law
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§ 9.05Copyright Law
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§ 9.05.01Copyright Ownership
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§ 9.05.02Works Made for Hire
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§ 9.05.03Exclusive Rights
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§ 9.05.04Infringement
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§ 9.05.05The "Religious Service" Exemption to Copyright Infringement
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§ 9.05.06Electronic Media
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§ 9.05.10Other Exceptions to Copyright Infringement
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§ 9.06Government Investigations
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§ 9.07Judicial Resolution of Church Disputes
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§ 9.08Political Activities by Churches and Other Religious Organizations
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§ 9.09Bankruptcy Law
10Church Legal Liability
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§ 10.01Negligence as a Basis for Liability—In General
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§ 10.02Vicarious Liability (Respondeat Superior)
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§ 10.02.01The Requirement of Employee Status
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§ 10.02.02Negligent Conduct
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§ 10.02.03Course of Employment
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§ 10.02.04Inapplicability to Nonprofit Organizations
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§ 10.03Negligent Selection of Church Workers—In General
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§ 10.04Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
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§ 10.05Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
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§ 10.05.01Court Decisions Recognizing Negligent Selection Claims
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§ 10.05.02Court Decisions Rejecting Negligent Selection Claims
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§ 10.05.03Risk Management
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§ 10.06Negligent Selection of Church Workers—Other Cases
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§ 10.07Negligent Retention of Church Workers—In General
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§ 10.07.01Court Decisions Recognizing Negligent Retention Claims
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§ 10.07.02Court Decisions Rejecting Negligent Retention Claims
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§ 10.07.03Risk Management
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§ 10.08Negligent Supervision of Church Workers—In General
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§ 10.09Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
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§ 10.09.01Court Decisions Recognizing Negligent Supervision Claims
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§ 10.09.02Court Decisions Rejecting Negligent Supervision Claims
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§ 10.09.03Risk Management
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§ 10.10Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
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§ 10.10.01Court Decisions Recognizing Negligent Supervision Claims
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§ 10.10.02Court Decisions Rejecting Negligent Supervision Claims
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§ 10.10.03Risk Management
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§ 10.11Negligent Supervision of Church Workers—Other Cases
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§ 10.11.01Risk Management
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§ 10.12Counseling—In General
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§ 10.12.01Risk Management
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§ 10.13Breach of a Fiduciary Duty
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§ 10.13.01Court Decisions Recognizing Fiduciary Duty Claims
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§ 10.13.02Court Decisions Rejecting Fiduciary Duty Claims
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§ 10.13.03Risk Management
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§ 10.14Ratification
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§ 10.15Defamation
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§ 10.16Defenses to Liability
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§ 10.16.01Contributory and Comparative Negligence
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§ 10.16.02Assumption of Risk
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§ 10.16.03Intervening Cause
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§ 10.16.04Statutes of Limitations
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§ 10.16.05Charitable Immunity
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§ 10.16.06Release Forms
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§ 10.16.07Insurance
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§ 10.16.08Other Defenses
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§ 10.17Damages—In General
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§ 10.17.01Punitive Damages
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§ 10.17.02Duplicate Verdicts
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§ 10.18Denominational Liability—In General
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§ 10.18.01Court Decisions Recognizing Vicarious Liability
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§ 10.18.02Court Decisions Rejecting Vicarious Liability
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§ 10.18.03Defenses to Liability
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§ 10.18.04Risk Management
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§ 10.18.05The Legal Effect of a Group Exemption Ruling
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§ 10.19Risks Associated with Cell Phones
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§ 10.20Risks Associated with the Use of 15-Passenger Vans
12The Present Meaning of the First Amendment Religion Clauses
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§ 12.01The Establishment Clause
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§ 12.01.01The Lemon Test
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§ 12.02The Free Exercise Clause
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§ 12.02.01The Smith Case
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§ 12.02.02The Religious Freedom Restoration Act
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§ 12.02.03The City of Boerne Case
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§ 12.02.04Conclusions
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13Significant First Amendment Issues
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§ 13.01The Right to Witness
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§ 13.02Prayer on Public Property other than Schools
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§ 13.03Prayer During Public School Activities
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§ 13.04Display of Religious Symbols on Public Property
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§ 13.05Recurring Use of Public Property by Religious Congregations for Religious Services
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§ 13.06Nonrecurring Use of Public Property by Adults for Religious Events and Activities
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§ 13.07Use of Public School Property by Students for Religious Purposes
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§ 13.08Sunday Closing Laws
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§ 13.09The Right to Refuse Medical Treatment
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§ 13.10Definition of "Religion" and "Religious"
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