Application of The CHURCH OF SCIENTOLOGY OF NEW YORK, Petitioner,



              For A Judgment Pursuant to Article 78 of the C.P.L.R.



                                       v.



             The TAX COMMISSION OF the CITY OF NEW YORK, Respondent.



                          Supreme Court, Special Term,



                            New York County, Part I.



                                  May 14, 1984.



  Purported religious organization brought Article 78 proceeding seeking



 judgment vacating denial of real estate tax exemption for certain property it



 owned.  The Supreme Court at Special Term, New York County, Richard Lee Price,



 J., held that:  (1) tax commission was required to articulate standards which



 distinguished organizations which are bona fide religious groups from those



 which are not and to state manner in which petitioner failed to meet those



 tests, and (2) findings that organization's beliefs were not generally known,



 that organization permitted members to continue as Jews or Christians, that



 organization's founder allegedly described religion as road to huge profits,



 and that founder's son was engaged in litigation involving founder's finances,



 did not support denial of exemption;  questions existed as to whether



 organization used coercion or was organized for profit.



  Petition granted;  case remanded for rehearing.







 [1] JUDGMENT



 Prior decisions involving purported religious organization as to its status as



 religion did not have res judicata or collateral estoppel effect on tax



 commissioner's determination as to organization's entitlement to exemption from



 real estate taxes, as decisions involved other church chapters, which may



 differ in their operations, contents of various cases were different, and city



 tax commission was not party to cases which were determined in organization's



 favor.







 [2] TAXATION



 Pursuit of particular approach to life is not purpose giving rise to real



 property tax exemption granted to religious organizations.







 [3] TAXATION



 Constitution does not require taxing authority to grant exemptions to any



 organization, but once government chooses to grant such exemptions, it must do



 so in manner which is not discriminatory, arbitrary, or capricious.







 [4] TAXATION



 In determining whether to grant tax exemption to group, taxing authority cannot



 inquire into soundness or validity of dogma espoused by group.







 [5] TAXATION



 To be entitled to tax exemption, religious organization must be organized for



 religious purposes, property for which exemption is sought must be used



 primarily in furtherance of that purpose, and no pecuniary benefit may inure to



 benefit of any of its officers, members, or employees, nor may property be used



 as guise for profit-making operations.







 [6] TAXATION



 Where primary purpose of organization is religious, organization's incidental



 use of property, for which real property tax exemption is sought, for nonexempt



 purpose will not destroy exemption.







 [7] TAXATION



 Mere fact that organization makes profit from its operations does not make it



 commercial enterprise for purpose of exemption from real property taxation, as



 long as all profits are devoted to permitted purpose.







 [8] TAXATION



 In denying purported religious organization exemption from real property taxes,



 tax commissioner improperly failed to articulate standards for distinguishing



 bona fide religious organizations from those which are not or to state manner



 in which organization failed to meet those tests.







 [9] CONSTITUTIONAL LAW



 First Amendment is designed to prevent taxing authority from arbitrarily



 denying tax exemption to particular religious organization or to new



 organization merely on grounds that its system of belief differs from those of



 more established or traditional religions.  U.S.C.A. Const.Amend. 1.







 [10] TAXATION



 Religious organization is not required to exclude all other religions or belief



 systems in order to constitute bona fide religious organization for purpose of



 exemption from real property taxation.







 [11] TAXATION



 Findings that purported religious organization's tenets and beliefs were not



 generally known, that it permitted its members to continue as Jews or







 Christians, that its founder allegedly described religion as road to huge



 profits, and that founder's son was engaged in litigation involving founder's



 finances, did not support denial of exemption for real property taxation.







 [12] TAXATION



 For purpose of exemption from real property taxation, bona fide "religious



 organization" does not use coercion;  members who wish to leave church are not



 subject to blackmail, and bona fide "church" does not threaten its



 opponents with baseless defamation suits, financial reprisals or



 physical violence.



 See publication Words and Phrases for other judicial constructions and



 definitions.







 [13] TAXATION



 For purpose of exemption from real property taxation, bona fide "church" is not



 run in same manner as high pressure sales organization;  employees are not



 recruited through promises of huge profits and commissions and followers are



 not threatened with punishment for failure to meet sales quota.







 [14] TAXATION



 On purported religious organization's application for real estate tax exemption



 for certain property owned by it, questions existed as to whether organization



 used coercion to retain membership and as to whether organization was run for



 purpose of making profit, requiring remand for rehearing, which was to be based



 at least in part on direct testimony.



  **265 *720 Michael B. Standard, Rabinowitz, Boudin, Standard, Krinsky,



 Lieberman, New York City, for petitioner.



  F.A.O. Schwartz, Jr., Corporation Counsel of the City of New York, Tax



 Commission of the City of New York, Office of the General Counsel, New York



 City, for respondent.







  RICHARD LEE PRICE, Justice:



  This Article 78 proceeding seeks a judgment vacating the determination of



 respondent which denied the Church of Scientology a real estate tax exemption



 for certain property owned by the church.



  It has been said that "One religion is as true as another," [FN*] but this



 statement begs the question:  "What is a religion?"







      FN* Robert Burton, Anatomy of Melancholy.







  The Church of Scientology was founded more than 20 years ago by L. Ron



 Hubbard.  Church doctrine apparently includes a concept of a supreme being



 (Theta).  An integral part of the work of the church is a process known as



 *721 auditing.  In auditing, a church member is attached to an electronic







 device, known as an "E-meter", which is similar to the skin galvanometer used



 in lie detector tests.  The subject is asked to discuss the most disturbing



 aspects of his life and past experiences, and his stress reactions are



 recorded.  Auditing is purported to be a form of "therapy" in which the subject



 is able to come to terms with life.  Followers often pay the church thousands



 of dollars during the auditing process.  The church also publishes books and/or



 manuals which set forth rituals for weddings, funerals and the like.



  [1] The Church of Scientology has been involved in extensive litigation,



 through the world, in which its status as a religion has been in issue.



 Decisions in various jurisdictions have gone both ways.  However, none of those



 decisions have a res judicata or collateral estoppel effect in the instant



 proceeding (the various church chapters may differ in their operations, the



 contents of the various cases have been different, and the New York City Tax



 Commission was not a party to those cases which were determined in petitioner's



 favor).



  In June, 1978, the Tax Commission held a hearing regarding the claim for the



 tax exemption.  The Rev. Ron Haugen, president of the church, was the only



 witness.



  In January, 1983, after several years of investigations and procedures, the



 Tax Commission issued a decision denying a tax exemption.  The decision stated



 the following:



  (1) Scientology is not a religion whose tenets, doctrines and policies are



 generally known.



  (2) Rev. Haugen, at the hearing, testified that 31 percent of the weekly



 donations were used to pay salaries and benefits, but in a letter submitted



 after the hearing drastically reduced the estimate to 17 percent.  From this,



 the Tax Commission concludes that the church is operated for profit.



  **266 (3) The organization is a self-help group which emphasizes the mental



 well-being of its members through a philosophy known as Dianetics.



  [2] The pursuit of a particular approach to life is not a purpose giving



 rise to a tax exemption.  Thus, respondent *722 erred in stating that "The



 courts have regarded a particular approach to life as a religious approach if



 the practice of the approach holds the same position and force in its



 followers' lives as a traditional religion holds in the lives of its



 followers".



  (4) The church permits people to be Scientologists without abandoning their



 Jewish, Christian or other beliefs.



  (5) L. Ron Hubbard, the church founder, was quoted in the St. Petersburg



 Times, December 17, 1979, as stating that a man who wanted to make a million



 dollars ought to start his own religion.



  (6) L. Ron Hubbard's son has commenced litigation to recover assets on the



 father's behalf.



  Petitioner maintains that Rev. Haugen's testimony regarding the payment of



 salaries to church officials was not contradictory, in that salaries varied in



 particular years (from as little as 17 percent to as much as 31 percent of



 church revenues) depending upon the success of the church.  Petitioner further



 contends that the statement attributed to L. Ron Hubbard in the St. Petersburg



 Times article was actually made years before by writer George Orwell.



  Respondent's papers submitted in opposition to this petition contain many



 statements and exhibits which were neither considered at the hearing nor



 mentioned in the decision.  Specifically, newspaper accounts indicate that the



 church employs aggressive marketing tactics, recruits persons as (in effect)



 sales agents with promises of huge profits or commission and has punished



 followers who have failed to meet their sales quotas.  The articles further



 charge that the church has used terror tactics against followers who wish to



 leave the church or outsiders who dare to oppose the church.  Errant church



 members are allegedly threatened with public disclosure of highly confidential



 matter obtained during the auditing process.  It has also been alleged that the



 church has brought baseless defamation suits in order to wear down and silence



 critics of the organization.



  [3] There is nothing in the constitution which requires the taxing authority



 to grant exemptions to any organization.  *723 However, once the government



 chooses to grant such exemptions, it must do so in a manner which is not



 discriminatory, arbitrary or capricious.



  [4] In determining whether or not to grant an exemption, the taxing



 authority cannot inquire into the soundness or validity of the dogma espoused



 by the group (Holy Spirit Association for the Unification of World



 Christianity v. Tax Commission, 55 N.Y.2d 512, 450 N.Y.S.2d 292, 435 N.E.2d



 662).  The successful definition of a religion is a very difficult task.



 However, Judge Adams, writing a concurring opinion in Malnak v. Yogi, 592



 F.2d 197 (3d Cir.1979), set down some guidelines.  Religion is said to be the



 "sum and essence of one's basic attitudes towards the fundamental problems of



 human existence (592 F.2d at p. 208)".  Religious organizations generally



 combine theories into a comprehensive system of beliefs.  In addition, there



 are generally a clergy, formal services and ceremonial functions.  None of



 these standards, of course, are absolute or inflexible.



  [5][6][7] In order to be entitled to a tax exemption a religious



 organization must meet three tests:  (1) the group must be organized for



 religious purposes;  (2) the property must be used primarily in furtherance of



 that purpose;  (3) no pecuniary benefit may inure to the benefit of any of its



 officers, members or employees, nor may it be used as a guise for profit-making



 operations.  (Gospel Volunteers v. Village of Speculator, 33 A.D.2d 407, 308



 N.Y.S.2d 785, aff'd 29 N.Y.2d 622, 324 N.Y.S.2d 412, 273 N.E.2d 139).  Where



 the primary purpose is a religious one, incidental use of the **267 property



 for a nonexempt purpose will not destroy the exemption.  The mere fact that an



 organization makes a profit from its operations does not make it a commercial



 enterprise so long as all profits are devoted to the permitted purpose



 (Gospel Volunteers v. Village of Speculator, supra).



  [8] In the instant case, after only a brief hearing, respondent concluded



 that the Church of Scientology was not a bona fide religion entitled to tax



 exemptions.  However, respondent failed to articulate the standards for



 distinguishing those organizations which are bona fide religious groups from



 those that are not or to state the manner in which petitioner failed to meet



 those tests.



  [9] The statement that Scientology is not a religion whose tenets and



 beliefs are "generally known", is meaningless.  *724 The mere fact that the



 system of beliefs differs from those of more established or traditional



 religions is not a reason for denial of tax exemptions.  To permit the Tax



 Commission to evaluate the beliefs themselves would be to set a dangerous



 precedent.  A taxing authority with unlimited power could arbitrarily deny tax



 exemptions to Protestants, Catholics or Jews, or deny an exemption to a new



 group merely because it fails to fit within the traditional Judeo-Christian



 mold.  The First Amendment is designed to prevent such a result.



  The Tax Commission considered the apparent inconsistency of Rev. Haugen, in



 setting forth financial figures, to be significant.  However, respondent did



 not set forth any objective standards as to how high a percentage of revenues



 devoted to salaries can be before it is considered excessive.  A struggling



 Jewish or Protestant congregation, for example, may have to pay much of its



 meager earnings to a rabbi or minister and still be a bona fide religious



 group.



  [10][11] The mere fact that Scientology permits members to continue as Jews



 or Christians does not destroy its character as a religion.  Nothing requires a



 religion to exclude all other religions or belief systems.  Hindus and



 Buddhists, for example, borrow greatly from other religions.  Jews and



 Christians have learned much from each other and share the Old Testament as a



 common heritage.



  The respondent referred to Hubbard's alleged description of religion as a road



 to huge profits (St. Petersburg Times) but did not describe the context in



 which the statement was made (it has not been shown that Hubbard was referring



 to his own church).



  The mere fact that L. Ron Hubbard's son is engaged in litigation involving the



 father's finances does not mean that the church is run for profit or that the



 Hubbards have misused church funds.



  [12][13][14] The Tax Commission gave considerable weight to newspaper



 articles and other items outside the record in an effort to demonstrate that



 Scientology is not a bona fide religion.  The matters contained in these



 articles may well be relevant, but the respondent's determination must be



 based, at least in part, on direct testimony.  Assuming, *725 arguendo, that



 the charges contained in the articles are true, there are at least two ways in



 which Scientology can be distinguished from bona fide religious groups.  First,



 a bona fide religious organization does not use coercion.  Members who wish to



 leave the church are not subject to blackmail (the alleged disclosure of



 confidential matter obtained during the auditing process may well violate the



 clergyman-penitent privilege).  A bona fide church does not threaten its



 opponents with baseless defamation suits, financial reprisals or physical



 violence.  Second, a bona fide church is not run in the same manner as a high



 pressure sales organization.  Employees are not recruited through promises of



 huge profits and commissions and are not threatened with punishment for failure



 to meet "sales quota".  These and other allegations related to the operation of



 the church should be explored at a new hearing.



  Accordingly, the petition is granted to the extent that the case is remanded



 to the Tax Commission for a rehearing, based at **268 least in part upon



 direct testimony, regarding the character of the Church of Scientology.



 Respondent shall consider the alleged profit making character of the church and



 the alleged use of coercion, and any other matter which, in the opinion of the



 respondent, is relevant to the tax exemption question.  The tax commission, in



 its decision shall set forth the objective tests used to determine whether or



 not the Church of Scientology is a bona fide religion and shall determine



 either that the church meets those standards or shall set forth the manner in



 which the church has failed to meet the standards.