Separation of Church and State Law

Home » God Betrayed/Separation of Church and State: The Biblical Principles and the American Application » F. God Betrayed/Union of Church and State in America » Spurious rationale for church Incorporation: limited liability/Incorporation Increases liability of church members

Spurious rationale for church Incorporation: limited liability/Incorporation Increases liability of church members

Jerald Finney
Copyright © December 10, 2012
Revised April 15, 2014

 This is a modified version of Section VI, Chapter 6 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application.

Contents:

I. Preface
II. Introduction
III. Protection from liability for the debts of the corporation
IV. Protection against torts and criminal acts
V. Protection for liability due to contract violations
VI. Conclusion
VII. Links to article on Internal Revenue Code laws as well as direct links to those laws

I. Preface

The author is thankful that the church he is a member of, Old Paths Baptist Church, is a spiritual entity, not a legal entity such as a non-profit corporation with Internal Revenue Code Section 501(c)(3) status. His pastor, Jason Cooley, and the other members of Old Paths hold the marriage relationship of Christ and His church on a high level, just as they have honored their earthly marriage relationships. They refuse to compromise that relationship.

To totally understand all the issues and sub-issues involved with church incorporation, one must not only have extensive knowledge of Biblical principles, but he must also have an understanding of history and law. You see, the issue of the relationship between church and state is very important to God and His Word completely explains His desired relationship. Historically, true Christians understood the importance of this relationship, and they stood up for their relationship even though they suffered greatly for their stand on this issue—they were imprisoned, drowned, beheaded, burned at the stake, hung, tortured, etc. because they loved their Savior and were willing to do all that He asked them to do.

According to the Word of God and the application of the principles concerning church, government, and separation of church and state, church incorporation displeases God. The author has done exhaustive studies of those principles and their application to incorporation and 501(c)(3) tax exemption of churches. The results of those studies are available for free on this website.

II. Introduction

Today, the most common reasons given by churches for incorporating and seeking 501(c)(3) status are (1) limited liability; (2) to allow a church to hold property; (3) civil government recognition of tax exempt status assures church leaders, members, and contributors that the church is recognized as exempt and qualifies for related tax benefits (For example, contributors to a church that has been recognized as tax exempt would know that their contributions generally are tax-deductible); (4) convenience—it is easier to get a tax deduction for tithes and offerings given to an incorporated 501(c)(3) religious organization than for tithes and offerings given to a New Testament church; (5) one’s convictions; and (6) winning souls is  more important than loving God.

This article will deal with the first reason, limited liability. Other articles cover the last five reasons (reasons 3 and 4 above are covered in the second article below):  

  1. Spurious rationale for incorporating: to hold property (Section VI, Chapter 7 of God Betrayed; Chapter 7 of Separation of Church and State)
  2. Spurious rationale for church corporate-501(c)(3) status: tax exemption and tax deductions for contributions OR Tax reasons given for church corporate 501(c)(3) status: a biblical and legal analysis (Section VI, Chapter 8 of God Betrayed; Chapter 8 of Separation of Church and State)(This article covers reasons 3 and 4 above).
  3. Spurious rationale for church corporate-501(c)(3) status: one’s convictions (Not included in God Betrayed or Separation of Church and State)
  4. Spurious rationale for church corporate-501(c)(3) status: winning souls is more important than loving God/The Most Important Thing: Loving God and/or Winning Souls

Many incorrectly argue that a church should incorporate to protect personal assets from liability (1) for the debts of the corporation, (2) for the torts and criminal acts of the corporation, and (3) for breach of contract by the corporation. Each of these arguments will be considered in light of biblical principle. A careful consideration of the facts will reveal that not only do churches violate principles in the Word  of God and grieve our Lord when they incorporate, they also increase the exposure of their churches and church members to liability.

Remember that although a New Testament church in America may still utilize property (real and personal) in conformity to Biblical principles, she is not a legal entity who can sue and be sued. A New Testament church owns no property and operates strictly according to principles in the New Testament. The New Testament church, unlike the incorporated state church, retains her First Amendment protections as well as other protections under the constitutions and statutes of the state. The incorporated church no longer has the full protection of the First Amendment, since she now is a legal person created under the laws of her new and additional sovereign. Corporate churches, unlike New Testament churches, can even be charged with certain crimes. When a church incorporates, additional exposure is taken on—the state can, at times, charge not only individuals, but also the corporation, with crimes. The purpose of the Biblical Law Center is to help churches organize solely under  the principles of God as laid out in His Word.

The author includes citations from various legal sources. Although many will not understand the meaning of those citations, the reader more familiar with the legal system will be able to check the veracity of the supported statements. Rest assured that legal assertions made herein are backed up by the law.

III. Protection from liability for the debts of the corporation

One may argue first that incorporating a church protects his personal assets from liability for the debts of the corporation. “One of the major attributes of the corporate form of organization is that it insulates shareholders from personal liability for the debts of the corporation…. As a general rule, and in the absence of a charter, constitutional, or statutory provision to the contrary, stockholders are not liable as such for any of the obligations of a corporation. Because a corporation is an entity, separate and distinct from its officers and stockholders, its debts are not the individual indebtedness of its stockholders” (18A AM. JUR. 2D Corporations § 724).

However, limited liability is not absolute:

  • “The general rule that shareholders are not liable for corporate obligations or conduct is subject to numerous exceptions. Shareholders may be held individually liable to prevent or redress fraud, to achieve equity, or to prevent the avoidance of a legal obligation or duty.
  • “If the corporation is a mere instrumentality or alter ego of the shareholder, the corporate entity will be disregarded, and the individuals owning the stock and the corporation treated as identical, with the result that such individuals will be personally liable for the acts and obligations of the purported corporation. The limitation of liability to the corporate assets must give way to imposition of personal liability if the actions of those in control of the corporation denigrate the purpose of limited liability, which is to encourage investment of risk capital. The fact that a corporation is undercapitalized is not sufficient in itself to establish personal liability of the shareholders.
  • “Corporate creditors may reach unpaid stock subscriptions, and if a corporation is liquidated, the shareholders are liable if, otherwise, they would be unjustly enriched by retaining assets of the corporation free from the debts of the corporation” (Ibid., § 728).

Courts look at the “independent operations” to see whether to set aside the corporate form and go to individuals within the corporation for liability. “Independent operations prong of test for determining if corporate form may be disregarded looks at such things as (1) whether corporation is operated as separate entity, (2) commingling of funds and other assets, (3) failure to maintain adequate records or minutes, (4) nature of corporation’s ownership and control, (5) absence of corporate assets and undercapitalization, (6) use of corporation as mere shell, instrumentality, or conduit of individual or another corporation, (7) disregard of legal formalities and failure to maintain arms–length relationship among related entities, and (8) diversion of corporation’s funds or assets to noncorporate uses” (InterGen N.V. v. Grina, 344 F.3d 134 (1st Cir. 2003) cited in 46 A.L.R.3d 428).…

“Piercing the corporate veil is tool that courts use to prevent shareholders, who are not normally liable for corporate debts or liabilities, from hiding behind corporate shield when corporation is under their direct control; in such cases, court will disregard corporation’s identity and hold shareholder liable for corporation’s debt only where corporation has been used to commit fraud, violate a legal duty, or perpetrate a dishonest or unjust act in contravention of rights of another” (Huffman v. Poore, 6 Neb. App. 43, 569 N.W.2d 549 (1997) cited in 46 A.L.R.3d 428).

Also, most lenders require sureties to  the loan. The assets of those sureties are at risk in the event of default. When a church takes a loan, every member should consider themselves as guarantors, since a church is defined by God as a body made up of all the members.

Not only is limited liability for corporations (including non-profit corporations such as churches who choose to become religious organizations under state laws of incorporation) not absolute under the laws of their state sovereign, God holds churches to a high standard. What does the Bible say about debt and repayment of debts? First, neither a Christian nor a church should go into debt. “Owe no man anything, but to love one another: for he that loveth another hath fulfilled the law. For this, Thou shalt not commit adultery, Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness, Thou shalt not covet; and if there be any other commandment, it is briefly comprehended in this saying, namely, Thou shalt love thy neighbour as thyself. Love worketh no ill to his neighbour: therefore love is the fulfilling of the law” (Ro. 13.8-10).

The Bible does not say “owe no man any thing unless you have to borrow money to build bigger church buildings, gyms, bingo halls, sports fields and facilities, cafeterias, fellowship halls, and/or any other type structures for the church.” Notice that the commandment not to covet is also included. Most importantly, notice the importance placed on love. Will a Christian who loves his neighbor seek to protect himself from debts he owes to others; debts which the Word of God instructed him not to enter into?

“He that is faithful in that which is least is faithful also in much: and he that is unjust in the least is unjust also in much. If therefore ye have not been faithful in the unrighteous mammon, who will commit to your trust the true riches? And if ye have not been faithful in that which is another man’s, who shall give you that which is your own? No servant can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon” (Lu. 16.10-13). “Mammon” means: “Riches, wealth; or the god of riches. Ye cannot serve God and mammon. Matt. vi” (AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, NOAH WEBSTER (1828), definition of “MAMMON”)

Thus, churches which go into debt for buildings or anything else distort themselves and become servants of the lender and money, not servants of God. “The rich ruleth over the poor, and the borrower is servant to the lender” (Pr. 22.7). Pastors of churches who are serving mammon will find that they fear to preach everything God has laid on their hearts because they might offend some, especially rich Pharisees, who might either leave the church and/or cause problems within the church. Failure to preach the whole gospel is displeasing to the Lord.

Christians and churches are to seek godliness, not worldly riches:

“Perverse disputings of men of corrupt minds, and destitute of the truth, supposing that gain is godliness: from such withdraw thyself.  But godliness with contentment is great gain. For we brought nothing into this world, and it is certain we can carry nothing out. And having food and raiment let us be therewith content. But they that will be rich fall into temptation and a snare, and into many foolish and hurtful lusts, which drown men in destruction and perdition. For the love of money is the root of all evil: which while some coveted after, they have erred from the faith, and pierced themselves through with many sorrows.  But thou, O man of God, flee these things; and follow after righteousness, godliness, faith, love, patience, meekness. Fight the good fight of faith, lay hold on eternal life, whereunto thou art also called, and hast professed a good profession before many witnesses. I give thee charge in the sight of God, who quickeneth all things, and before Christ Jesus, who before Pontius Pilate witnessed a good confession; That thou keep this commandment without spot, unrebukeable, until the appearing of our Lord Jesus Christ: Which in his times he shall shew, who is the blessed and only Potentate, the King of kings, and Lord of lords; Who only hath immortality, dwelling in the light which no man can approach unto; whom no man hath seen, nor can see: to whom be honour and power everlasting. Amen. Charge them that are rich in this world, that they be not highminded, nor trust in uncertain riches, but in the living God, who giveth us richly all things to enjoy; That they do good, that they be rich in good works, ready to distribute, willing to communicate;  Laying up in store for themselves a good foundation against the time to come, that they may lay hold on eternal life” (I Ti. 6.5-19).

The above verses speak to the saved person who is the temple of God, and, along with other believers, constitute a church body. Nowhere in the New Testament can one find a single verse condoning a church seeking riches and real or personal property. Rather, Christians are to be content with what they have. They are not to go into debt. If they will do the jobs God has given them, lusting after real property and other worldly things will vanish from their hearts and minds. “Let your conversation be without covetousness; and be content with such things as ye have: for he hath said, I will never leave thee, nor forsake thee. So that we may boldly say, The Lord is my helper, and I will not fear what man shall do unto me” (He. 13.5-6).

And as long as a church maintains her New Testament status and remains under Christ alone, she can own nothing since she is a spiritual entity. As will be shown, a church can utilize property in ways which conform to biblical principles.

The apostles, and true Christians in their church body down through the ages, have been careful not to seek worldly riches; and they preached the whole counsel of God no matter who was offended. Nothing was ever mentioned in the Word of God about the early church seeking real or personal property. Churches assembled on property, but churches did not own property. The goals of churches and individual Christians were spiritual, not earthly. Individual Christians, at times, even went further than required by biblical principles. “And all that believed were together, and had all things common; And sold their possessions and goods, and parted them to all men, as every man had need. And they, continuing daily with one accord in the temple, and breaking bread from house to house, did eat their meat with gladness and singleness of heart, Praising God, and having favour with all the people. And the Lord added to the church daily such as should be saved” (Ac. 2.44-47).

Thus, a New Testament church should not go into debt and should occupy property in a manner consistent with biblical principles. If a church does go into debt, God desires that she pay that debt back. Since the members made the debt, they are responsible for honoring God and man and paying the debt as agreed.

IV. Protection against torts and criminal acts

As to torts and criminal acts, anyone—no matter the kind of church he is a member of—is liable for his own tort or crime or for any tort or crime in which he participated or encouraged. In other words, should a member of either type church be directly connected to criminal or tortuous acts, that member is not insulated.

  • “Stockholders are not ordinarily liable for the tortious acts of a corporation unless they participate in or aid the commission of such acts. An individual’s liability for the tortious conduct of corporation depends upon that individual’s acts, and not upon any theory of vicarious liability based upon the individual’s status as an owner. For example, a stockholder is individually liable for constructive fraud committed by a corporation only if he or she had knowledge of and instigated the fraud.
  • “Caution: The rule shielding shareholders from liability for a corporation’s torts do not shield shareholders from personal liability in tort for their own misfeasance or nonfeasance, including liability for negligence; a shareholder may be liable if he or she is the central figure in a corporation’s tortious conduct. For example, a shareholder may be held personally liable for negligent acts in managing and supervising the employees of corporation, if those acts are a contributing factor in causing an injury” (18A AM. JUR. 2DCorporations § 726 (2007)).

A New Testament church cannot be and is not liable for the tort or crime of a member or members since she is not a legal entity. People in a New Testament church may commit and be held accountable for torts or crimes, but the church herself cannot commit a tort or crime. If only one or more in a New Testament church commit a crime or tort, the entire church cannot be charged or sued unless everyone in the church was involved. A Christian is not exempt from being falsely accused of a tort and/or a crime; and a Christian can walk in the flesh and commit or participate in a tort and/or a crime if he so chooses.

“It has been held that shareholders [or members] are not liable for a corporation’s violations of state or local statutes, ordinances, or regulations in the absence of proof of active participation in the management of the corporation or the wrongs. However, it has also been held that the purpose behind incorporating is not to protect those who control a corporation from answering for its criminal actions” (Ibid., § 727). Furthermore, not only individuals within a corporate church, but also the corporation itself is subject to state penal laws criminalizing certain acts of corporations, including non-profits:

“The view taken in the early cases that a corporation is not indictable for a criminal offense has long been abandoned, and it is now almost universally recognized that a corporation is not per se exempt from criminal prosecution. Courts and legislative bodies tend to impose the same standards of criminal responsibility upon corporations as upon natural persons…. a corporation cannot be sent to jail; the discharge of its liabilities, whether criminal or civil, can be effected only by the payment of money. Thus, it has been held in a number of cases that where an offense is one which can be committed by a corporation, and where the penalty provided is a fine, the corporation is liable to criminal prosecution…. The proposition that a corporation is amenable to criminal prosecution for offenses punishable by fine is also supported by cases holding that a corporation may be prosecuted for offenses punishable by fine and imprisonment … or by fine or imprisonment, or both…. It is also implicitly supported by myriads of cases in which corporations have been fined.” (80 A.L.R.3d 1220).

A New Testament church has safeguards, in addition to her supernatural and legal protections: she will not be involved with all the worldly matters with which an incorporated “church” and its members are involved and which give the incorporated church and its members and officers opportunities and temptations for wrongdoing. The member of a church who loves the Lord and has his eyes on spiritual, as opposed to material, matters will be more likely to love his neighbor and to behave in a pious manner. The member of any church should understand that not only the state, but also—and primarily—God, desires him to be liable for and make restitution for damages to another caused by his tort or crime or for any tort or crime with which he knowingly, intentionally, recklessly, or with negligence participates.

V. Protection for liability due to contract violations

A person is not ordinarily liable on contracts entered into by a corporation in which he or she owns stock. However, if a stockholder makes a contract as an individual, he or she is liable (18A AM. JUR. 2D Corporations, § 725).

“A shareholder may expressly guarantee a corporate obligation. A shareholder’s contract unconditionally guaranteeing payment of the corporation’s debts is not abrogated by negligence of the creditor that results in the debt not being discharged in bankruptcy. Whether a shareholder has guaranteed the credit of the corporation so as to become personally liable on its obligations in a particular case is a question of fact for the jury” (Ibid., § 730).

A New Testament church, being a spiritual entity, will not and cannot enter into any type of contract. Contract is an enlightenment principle which is antithetical to biblical principle. The author explains this principle in his writings and audio teachings (Go to, e.g., the following links: “Separation of Church and State Law Blog” (click the following link, “Union of Church and State in America, and scroll down and click on the audio teaching “6. Incorporation of Churches;” or click the following link, “Radio Broadcast,” and scroll down and click on the audio teaching segments under Section VI, Chapter 2, “Incorporation of Churches.” You will also find the teaching on this principle in Section VI, Chapter 2 of God Betrayed/Separation of Church and State: The Biblical Principles and the American Application and Chapter 3 of Separation of Church and State: God’s Churches: Spiritual or Legal Entities for which ordering information is available by clicking the following link: “Order Information for Books by Jerald Finney.”).

Should a church violate God’s principles by incorporating and entering into contracts, the Lord expects that church to honor those contracts at all costs (See Section III above).

VI. Conclusion

In conclusion, churches who incorporate dishonor the Lord and His principles concerning His desired relationship between church and state. Christians are responsible to God to study His Word and make the practical application of His Word to real life. The relationship between Christ and His churches is very important to Him.

“Husbands, love your wives, even as Christ also loved the church, and gave himself for it; That he might sanctify and cleanse it with the washing of water by the word, That he might present it to himself a glorious church, not having spot, or wrinkle, or any such thing; but that it should be holy and without blemish” (Ep. 5.25-27).

That relationship has been so important to Christians since the beginning of the Church that they have been willing to die rather than to dishonor it by becoming members of the established Catholic and Protestant churches or other state-church combinations. How important is that relationship to you and your church?

VII. Links to Internal Revenue Code Laws

You can read portions of the following Internal Revenue Code laws which pertain to churches and pastors by going to the following site: “Laws Protecting New Testament Churches in the United States: Read Them for Yourself”; or you may read an entire law online by clicking the following links:

  1.  § 501(c)(3). Exemption from tax on corporations, certain trusts, etc.
  2. § 508. Special rules with respect to section 501(c)(3) organizations
  3. § 7611. Restrictions on church tax inquiries and examinations
  4. § 1402. [Dealing with taxes on income of pastors]
  5. § 107. Rental value of parsonages
  6. § 102. Gifts and inheritances (Tithes and offerings are gifts and, therefore, according to the Internal Revenue Code § 102, not income)
  7. § 2503. Taxable gifts
  8. § 170. Charitable, etc., contributions and gifts

END

 


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