concurring:
Why is Scientology training different from all other religious training? - We should decline the invitation to answer that question. The sole issue before us is whether the Sklars’ claimed deduction is valid, not whether members of the Church of Scientology have become the IRS’s chosen people.
The majority states that the Church of Scientology’s closing agreement is not relevant because “the Sklars[are] not similarly situated to the members of the Church of Scientology....” That may or may not be true, but it has no bearing on whether the tax code permits the Sklars to deduct the costs of their children’s religious education as a charitable contribution. Whether the Sklars are entitled to the deduction they claim is governed by 26 U.S.C. § 170, Hernandez v. Commissioner, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989), and United States v. American Bar Endowment, 477 U.S. 105, 106 S.Ct. 2426, 91 L.Ed.2d 89 (1986), not by the Church of Scientology closing agreement.
—Section 170 states that quid pro quo donations, for which a taxpayer receives something in return, are not deductible.
—Hernandez holds that § 170 applies to religious quid pro quo donations.
—American Bar Endowment holds that charitable donations are deductible only to the extent that they exceed the fair market value of what is received in exchange.
The Sklars receive something in return for their tuition payments — the education of their children. Thus, they are not entitled to a charitable deduction under § 170, as Judge Reinhardt carefully shows. Hernandez clearly forecloses the argument that § 170 should not apply because the tuition payments are for religious education. Finally, the Sklars have not demonstrated that what they pay for their children’s education exceeds the fair market value of what they receive in return; therefore, they have not shown that they are entitled to a deduction under American Bar Endowment. It is as simple as that.
Accordingly, under both the tax code and Supremé Court precedent, the Sklars are not entitled to the charitable deduction they claimed. The Church of Scientology’s closing agreement is irrelevant, not because the Sklars are not “similarly situated” to Scientologists, but because the closing agreement does not enter into the equation by which the deductibility of the Sklars’ payments is determined. An IRS closing agreement cannot overrule Congress and the Supreme Court.
*623If the IRS does, in fact, give preferential treatment to members of the Church of Scientology' — allowing them a special right to claim deductions that are contrary to law and rightly disallowed to everybody else — then the proper course of action is a lawsuit to stop to that policy.1 The remedy is not to require the IRS to let others claim the improper deduction, too.
. See Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (allowing a taxpayer group to challenge the constitutionality of the Adolescent Family Life Act under the Establishment Clause); School Dist. of City of Grand Rapids v. Ball, 473 U.S. 373, 380 n. 5, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985) (noting and affirming "the numerous cases in which we have adjudicated Establishment Clause challenges by state taxpayers to programs for aiding nonpublic schools.”), rev’d on other grounds, Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).