President, #### University
######, South Carolina ######
Re: Your decision to terminate a student from being a Resident Advisor because of not identifying with a SSN on the basis of her religion.
Dear (Guy in South Carolina),
In certain circumstances, you may be required to solicit an employee/payee to provide you with their Social Security Number (SSN) or Taxpayer Identification Number (TIN). There is a provision in law, Federal Regulations, and Internal Revenue Service publications that provides a waiver to the employer for any obligation they might have to obtain a SSN/TIN. There are reasons why such a waiver must be available in the regulations and law:
There is no law that mandates every United States national or citizen apply for a SSN. The official statement from the Social Security Administration is – "The Social Security Act does not require a person to have a Social Security number to live and work in the United States, nor does it require a Social Security number simply for the purpose of having one."
There are people who have bona fide religious objections to participating in Social Security or identifying with it as a national/global identification number. The Religious Freedom Restoration Act, 42 USC 2000bb provides that Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability…Except that… Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Allowing for the two reasons listed above, the United States Code relating to Income Taxes has a Reasonable Cause waiver provision (26 USC §6724) for those instances where an employer/payor cannot obtain a SSN/TIN from an employee/payee. Cascading downward with that authority comes the Federal Regulation that implements that provision of the tax law, 26 CFR §301.6724-1, Reasonable Cause waiver. Quoting the Federal Register:
“Section 6724(a) provides for a waiver of information reporting penalties under sections 6721 through 6723 if the failure giving rise to such penalties was due to reasonable cause and not willful neglect. Under Sec. 301.6724-1(a) of the regulations, to prove reasonable cause for a failure, the filer must establish either that there are significant mitigating factors with respect to the failure or that the failure arose from an event beyond the filer's control (an impediment). In addition, the filer must have acted in a responsible manner both before and after the failure.
Under Sec. 301.6724-1(d) of the regulations, a filer is considered as acting in a responsible manner if the filer exercises reasonable care, i.e., the care that a reasonably prudent person would use under the circumstances in the course of business in determining filing obligations and in handling account information such as account numbers and balances.
The two reasons of a person either not having a SSN/TIN or having a ‘religious objection’ are reasonably “significant mitigating factors’ and ‘beyond the filer’s control.” Because the IRS filing procedures are highly automated, the employer/payor will most likely receive a notice that there is a missing or incorrect SSN/TIN regarding the particular employee/payee record. IRS Publication 1586, Reasonable Cause Regulations for Missing And Incorrect Names/TINs indicates there are procedures in instances where a SSN/TIN is missing. IRS Publication 1586 says on page 11:
“Employers should not use the receipt of an IRS notice as grounds to terminate the Employee.”
There must be a mechanism to balance the maintenance of liberty and government reasonable interests of efficiency. The Bill of Rights of the United States Constitution and simple justice motivates the Reasonable Cause waiver provision of the tax law and regulations, just as it has motivated the Religious Freedom Restoration Act. Therefore, it is both sinful and tyrannical to not hire someone, or terminate their employment, because they are prohibited from identifying with the national/global identification number on the basis of their religion.
David Alan Carmichael