Family Attorney Fears Tax Decision Smuggles Religion Into Family Law

Emily Parkin

Family law attorney Sue Moss thinks that Judge Emin Toro of the United States Tax Court has done a great disservice to women, particularly Orthodox Jewish women, in his decision in the case of the Estate of Semone Grossman. She fears that this decision of a federal court may smuggle inequitable patriarchal principles into family law. She has written to Commissioner Rettig urging IRS to appeal the decision. She argues:

The Court’s opinion in Grossman, which sets the dangerous precedent stating that a religious divorce can itself civilly dissolve a marriage, misapprehended multiple issues of New York State’s law, and violates the constitutional mandate that there be a separation between church and state. The effects of this decision are monumental.

Background

Semone Grossman, born in Germany in 1930, was a Holocaust survivor. In one of those inspiring rags to riches stories, he became a major player in the parking business in Manhattan and Brooklyn. His gross taxable estate was around $87 million. He left the bulk of it to his third wife Ziona. According to this story in the New York Post by Julia Marsh, he made some provision for each of his six children from the three marriages, while denying anything to an out-of-wedlock child. He left $200,000 to his first wife Hilda.

The dispute with the IRS was over the marital deduction making for a deficiency of over $35 million. The IRS argued that Semone was not actually married to Ziona – two children and 27 years of living as husband and wife to the contrary notwithstanding. To frame the issue we need to review Semone’s marital history as reflected in the Tax Court opinion.

The Marriages Of Semone Grossman

Semone married Hilda, who is also Jewish, in 1955. They has two children. They separated in 1965. A separation agreement spelled out financial arrangements. They never lived together after that.

In 1967 Semone obtained a divorce from Hilda in Mexico. He then married Katia, who is not Jewish, in a civil ceremony in New Jersey. In 1974 Semone and Katia split up. Hilda filed an action in New York and obtained a ruling that the Mexican divorce was invalid making Semone and Katia’s marriage null and void and Hilda Semone’s lawful wife.

In 1986 Semone became engaged to Ziona. Ziona was born in Israel and had dual US-Israeli citizenship. Although a New York resident, she regularly traveled to Israel. Semone also had friends in Israel. So they decided to get married in Israel.

In order to be legally married in Israel, they needed a religious divorce – a get. Although gets are pretty one-sided, Semone asked Hilda to cooperate in the process which she did. All the necessary formalities were attended to and Semone and Ziona were married in Israel in early 1987.

Gotcha !

If anybody had an interest in the marriage to Ziona not being valid it was Hilda, since if she was still his wife she could elect against the will and get one third of the estate. She didn’t do that nor did her executor. And from how things went with Katia, it is clear that she was aware of that possibility.

So a common sense view is that the IRS was playing Gotcha !. Of course Judge Emin Toro, who Lew Taishoff refers to as Eminent, does not put it that way. He makes a determination that under New York law, the question to ask is whether the marriage was valid under the law of the “place of celebration” (Israel). He emphasizes that the ruling is narrow writing that the opinion:

….. addresses only our view on the New York Court of Appeals’ expected recognition of Semone and Ziona’s marriage, celebrated in Israel, uncontested for many years by the previous spouse, and left undisturbed by the New York courts. We make no broad pronouncements on how couples may or may not obtain valid divorces in New York. New York courts of course remain open to hear challenges by an existing spouse who believes that his or her current marriage is adversely affected (or not) by a subsequent marriage. 

The Problem

Ms. Moss thinks that Judge Toro got New York law wrong. Semone and Hilda’s religious divorce had no civil significance in New York. Semone and Ziona could not have gotten married in New York, so New York would not recognize their marriage. To think otherwise would expose women to being denied their rights under New York law to a share in property and support, since the get process is so one-sided in favor of men.

This is all so lawyerly that I figured I needed to bring in heavy guns from my legal brain trust.

The Tax Court Maven

Lew Taishoff covers the Tax Court with an incredible intensity and is a consummate New Yorker. I was surprised that he passed on covering the Grossman opinion, which was issued on May 27, 2021. He wrote me:

Mr Reilly, This opinion was issued back on 5/27/21. I didn’t blog it, as there was the Green Valley Investors case that day, where Judge Christian A (“Speedy”) Weiler surveyed the conservation-scenic easements “improvements out” learning. 

I don’t remember the case, but reading it now, I find Judge Emin (“Eminent”) Toro followed the same NY law that I first learned On The Hill Far Above, from the late great Prof. Rudolph Berthold Schlessinger, one of the finest legal minds I ever encountered. Marriages valid where celebrated are valid in NY, absent overwhelming public policy. There is of course the Mormon polygamy exception, and criminal incestuous relationships. Likewise, the Bet Din (literally the “house of judgment”; cf. I. B. Singer “In My Father’s Court,” 1956) has been recognized as an arbitral forum in NY for many years, and NY State Courts have confirmed the awards thereof per Art. 75 of our Civil Practice Law and Rules. I would expect that such Awards would be confirmed (with similar exceptions, of course) per the Federal Arbitration Act (9 USC§1 et. seq.). 

I don’t understand why this NY family lawyer is getting bent out of shape about Grossman. No NY State court is bound by this opinion. If there’s an appeal, 2 Cir can always certify a question to the NY Court of Appeals, but I cannot think the NY Court of Appeals will deem this a question not well-settled in NY law, and respond with an opinion.

The other three attorneys I consulted are professors expert in church state tax issues.

 Two With Taishoff

Edward Zelinsky, author of Taxing The Church, wrote me:

You prodded me to look at the case again. This lawyer is conflating a legitimate concern about the treatment of orthodox women with NY’s recognition of foreign marriages. She is right that this could be manipulated by unscrupulous orthodox men but it isn’t clear that this is NY’s or the tax court’s problem.

Adam Chodorow, who argued against the parsonage exclusion in the Seventh Circuit, wrote me :

I understand that there may be legal arguments, but to me this is a case where the IRS is trying to play gotcha. Aside from the unilateral Mexican divorce, which feels a bit dodgy, all the parties acted as if the divorce was real. Moreover, the IRS’s position puts the deceased in an impossible position, with conflicting decisions on the termination of the first marriage and the validity of the second. Sometimes the efficient administration of justice requires that the IRS let go. Indeed, this is a clearly stated reason to relieve people of their debts to the IRS. My sense is that the same principle should apply here.

Brunson In Dissent

Samuel Brunson, author of God And The IRS, wrote me:

Reading through the Grossman case, I’m not convinced that it raises church-state issues. I suspect that the Tax Court would not have recognized the marriage between Semone and Ziona had Semone and Hilda received a get and remarried in New York (or California or anywhere else in the U.S.). In the court’s opinion, the question turns on whether New York recognizes the validity of a marriage based on where the couple lives or where they (purportedly) got married. And the Tax Court believes that under New York law the question turns on where they got married. Because Israeli law recognizes a get as a legal divorce, and because they could legally marry in Israel (in spite of the fact that Semone and Hilda were not civilly divorced) the Tax Court says that the Semone-Ziona marriage is valid.

Ultimately, though, I’m skeptical. And here I’m going a little outside of my body of knowledge, but I read the Tax Court as trying too hard to put this outside of the bigamy/polygamy category. I suspect that it is misreading New York precedent, because I suspect that this marriage would be bigamous under New York law. But that’s not a religious issue—that’s a New York civil law issue (and again, it’s one that’s beyond my experience or knowledge).

Sue Moss Is Not Giving Up

Ms. Moss sees this in black and white terms. The failure to get a civil divorce makes the marriage invalid and a federal judge ignoring that is dangerous. She told me that she hopes to get the New York Women’s Bar Association interested in the case and also groups that work on protecting religious women.

My general rule of rooting for the taxpayer does not put my on her side, but I admire her regardless.

Other Coverage

The opinion got quite a bit of coverage when the opinion came out in May.

Thomas Norelli had Tax Court Holds ‘Bigamous’ Estate Can Claim $79 Million Marital Deduction on Wealth Management.

Richard Goulder had Estate Tax Nightmare: Three Weddings, Two Funerals, And A Mexican Divorce on Forbes.com.

Robert Willens had Place of Celebration’ Rule Determines Surviving Spouse on Bloomberg Tax.

https://www.forbes.com/sites/peterjreilly/2021/11/01/family-attorney-fears-tax-decision-smuggles-religion-into-family-law/

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