dissenting: I respectfully disagree with the majority opinion. In applying the provisions of section 107,1 see no reason for the majority’s speculation about the relevancy of duties performed by petitioner, since section 1.107-1 (a) of the Income Tax Regulations, whose validity is not questioned, provides:
In order to qualify for the exclusion, the home or rental allowance must be provided as remuneration for services which, a/re ordinarily the duties of of a minister of the gospel. In general, the rules provided in § 1.1402(c)-5 will be applicable to such determination. [Emphasis supplied.]
Section 1.1402(c)-5 adds that such services include (1) the ministration of sacerdotal functions, (2) the conduct of religious worship, and (3) the direction of organizations within the church.
Fairness and consistency in applying the provisions of section 107 can only be obtained by reference in each case to the particular services rendered and duties performed by the “minister” claiming the benefit of the exclusion.
I firmly believe that this record contains sufficient proof that the petitioner spent his full time during the years 1963 and 1964 performing for the congregation of the Springfield Baptist Church services of all three types. He ministered to the sick. He conducted funeral services. He made the pulpit 'announcements and the opening prayer at the Sunday worship service and, on occasion, he preached and led the congregation in worship. He often conducted the Wednesday night worship service, especially during the year when the church had no regular pastor. He had under his supervision and direction the administration of the educational and service organizations of the Springfield Baptist Church. These included the Sunday School, the Training Union, the Women’s Missionary Organization, the Baptist Brotherhood, and the youth program. Petitioner was trained for the ministry at the Southwestern Baptist Theological Seminary, and he functioned as one of the religious leaders of his church in a real sense.
In my optic the majority has inappropriately withdrawn to the safe harbor of burden of proof. This is not a case where the petitioner has failed to produce credible evidence to support the exclusion and where he has asked this Court to render a decision based upon inference and speculation. The findings of fact made herein establish all elements necessary to support the exclusion.
The undercurrent of the majority opinion seems to be that ordination is the touchstone for qualification under section 107. The only regulatory gloss upon the phrase “minister of the gospel” is found in section 1.1402(c)-5, Income Tax Regs., which substitutes for it “a duly ordained, commissioned, or licensed minister of a church or a member of a religious order.”1
This Court held in Abraham A. Salkov, 46 T.C. 190 (1966), that the words “ordained, commissioned, or licensed” are to be applied in the disjunctive. The question raised in Baikov was not whether the phrase “minister of the gospel” precluded officials in other than the Christian religion from the benefits of section 107. The Commissioner did not so contend, for his announced position at the time was that an ordained rabbi does qualify for the exclusion. Rev. Rul. 58-221, 1958-1 C.B. 53. On the other hand, it was his position that a cantor who was not ordained did not qualify. Rev. Rul. 61-213, 1961-2 C.B. 27. In Baikov we held that a cantor who performed many, but not all, of the functions normally performed by a rabbi and who was commissioned, but not ordained, was for the purposes of section 107 a “minister of the gospel.”
The clear import of the regulations and the Salkov opinion is that a person qualifies for the rental allowance if he performs the required ministerial services in some official capacity. It is sufficient if his church or religious order recognizes him by ordination, commission, or license.
In the face of its finding that the Springfield Baptist Church “is completely autonomous and does not answer to any hierarchial authority” and the petitioner’s deposition that “it is the local church that makes the determining decision whether a person is qualified to be commissioned or ordained,” the majority holds that the resolution of the Springfield Baptist «Church commissioning petitioner was mere “paperwork.” I think this is plainly wrong. When it is found that a person performs the required ministerial services I think it is beyond the province of this Court to examine the motives behind 'the official acts of his religious organization.
In Baikov, we intended, I thought, to give the rather unusual statutory phrase “minister of the gospel” a reasonably expansive, pragmatic meaning. Certainly the interpretation placed on the phrase by the majority here, in light of the facts, strikes me as being out of harmony with the intent and spirit of our Baikov opinion. Whether done consciously or not, tbe majority has weakened the underpinnings of Salkov. Moreover, I view tibe majority opinion as being more narrow and restrictive than the Commissioner’s own rulings. See and compare Rev. Rul. 59-270, 1959-2 C.B. 44; Rev. Rul. 64-326, 1964-2 C.B. 37; Rev. Rul 63-156, 1963-2 C.B. 79; Special Ruling, Sept. 1, 1955, 1968 C.C.H. par. 1103.33.
Accordingly, under these facts and circumstances, I would hold that the petitioner is a recognized, commissioned religious and spiritual official of the Springfield Baptist Church who in 1963 and 1964 performed full-time services which qualified him as a “minister of the gospel” within the spirit, meaning, and intendment of section 107.
Fat, Simpson, and Featheeson, JJ.: agree with this dissenting-opinion.The phrase may well be equated with “regular minister of religion” used in the Selective Service statute, 50 U.S.C. App. sec. 466(g)(2), which means “one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, [religious] sect, or organization as a regular minister.” See Application, of Kanas, 385 F. 2d 506 (C.A. 2, 1967), citing Salkov with approval. See also Dickinson v. United States, 346 U.S. 389 (1953), involving a Jehovah’s Witness; Rowell v. United States, 223 F. 2d 863 (C.A. 5, 1955); and Reutkemeier v. Nolte, 161 N.W. 290, 292-293 (Iowa 1917), holding that ruling elders are “ministers of the gospel” within the meaning of the Presbyterian Confession of Faith. Surely this petitioner would qualify as a “regular minister of religion.”