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November 27, 2014 / 5 Kislev, 5775
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Tax Evasion And Tax Avoidance: Bechorot 34a; Berachot 35b; Sanhedrin 5a; Gittin 81a.


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There is nothing as certain as death and taxes, so the saying goes. Almost equally certain is the phenomenon of the living trying to avoid or evade taxes. In law school they teach you that while tax avoidance is legal, tax evasion is illegal. But the difference between avoidance and evasion is often difficult to define. Witness the recent tax shelters structured by national accounting firms and bolstered by the opinions of venerable law firms, only to be shot down by the IRS. At the end of the day, the only reliable distinction between tax avoidance and tax evasion is what the authorities decide post facto.

The issue is as old as money itself and it is one that every legal system struggles with. Halacha, to the extent it is a legal system – and it is much more than that – struggles with it too.

The Talmud laments the fact that contemporary generations look for ways to escape paying taxes whereas their predecessors looked for ways to pay them. The Talmud illustrates this point in connection with taxes, known as terumot and ma’asarot, or tithes, paid by the people of Israel to the kohanim, the priests. These tithes were only required to be separated and paid to the kohen in respect of crops which were delivered to the crop owner’s storehouse through the main entrance but not in respect of crops delivered through an abnormal route, such as, through a skylight in the roof.

Whereas earlier generations of farmers would have their crops delivered through the main entrance and pay the tithes that such delivery triggered, later generations of farmers would have them delivered through the skylight and thereby avoid the taxes. Although the rabbis ruled this terumah avoidance device legal,  they criticized those who took advantage of it.

Other devices employed to circumvent other obligations were ruled illegal. Such was the case with certain devices designed to free the kohen of the obligation to offer up, as a sacrifice, the bechor behemah tehorah he received from the people of Israel.

Needless to say, the kohen who received the bechor animal would be financially better off if he could have unrestricted personal use of the bechor without having to offer it up as a korban. If there were some way to free the bechor of its hekdesh status and from the obligation to offer it up as a sacrifice, the kohen would benefit.

First of all, he would not have to  take care of the bechor until it was fit for a korban. Second, he would be able to slaughter it anywhere and not be confined to slaughtering it in the Temple. Third, he would be able to feed it to anyone he desired  and not just to his immediate family. Fourth, he would be able to eat it anywhere rather than being confined to eating it in Jerusalem. Fifth, he would be able to sell it to any willing buyer, Jewish or non-Jewish.

If only the kohen could engineer that the bechor develop a moom, a blemish, that would render it unacceptable as a korban, he could solve his problem. The blemish would render the animal ineligible as a korban, but yet not treif, so that the kohen would be able to enjoy the entire animal instead of having to lose the benefit of part of it by burning it on the altar.

It would not be difficult to achieve this because even a slight blemish, such as a cut lip or a slit ear, would disqualify the animal as a korban. What if the kohen placed a basket of food behind some barbed wire, enticing the animal to go for the food and cut itself in the process? Or what if he could convince a non-Jew to injure the animal for him?

But the rabbis would not condone this conduct. They ruled that if the kohen intentionally, even if indirectly, injures the animal, a penalty would be imposed that would render the animal permanently prohibited to the kohen. The kohen who intentionally caused the injury to the animal would never be permitted to slaughter it or derive any benefit from it at all, until such time as the bechor either developed a blemish on its own or was accidentally blemished.

In order for the bechor to be free of its bechor status, the blemish had to be both accidental and permanent. A temporary blemish that would heal over time did not free the animal of its bechor status. So great was the kohen’s temptation to deliberately injure the animal that safeguards had to be put in place to make sure that each claim of an injured bechor was legitimate. Accordingly the rabbis legislated that only a special expert, called a mumcheh bechorot, would have the jurisdiction to decide what was and what was not a genuine blemish. The kohen who claimed the blemish was both permanent and inadvertent would be obliged to have the matter adjudicated by the mumcheh bechorot.

To qualify as a mumcheh bechorot  one required many intense years of study and training in both halacha and veterinary medicine. The Talmud relates that Rav spent 18 months among herdsman to learn which blemishes were permanent and which were temporary. Today, except for obvious blemishes apparent to the untrained eye, such as a missing limb, there is nobody with the knowledge required to determine what blemishes are eligible to remove the bechor status.

In view of the fact that the laws of bechor are still applicable today, the absence of a mumcheh bechorot means there is little a kohen can do with the bechor behemah tehorah other than keep it around until it develops or incurs a blemish by itself with no human intervention. But as we have seen, this is problematic because people may unwittingly make use of the bechor for secular purposes either because they are oblivious to the laws of bechorot or because they are unaware that this particular animal is a bechor.

Therefore the rabbis have devised a way whereby the bechor behemah tehorah today will not be born in its sanctified state. This is achieved by selling a part ownership in the mother, before the birth of the firstborn, to a non-Jew. Since it is only the firstborn of an animal, owned solely by a Jew, that renders the firstborn sanctified, it follows that if the mother is partially owned by a non-Jew, the firstborn is not considered holy at birth and is free for secular use.

Another way of achieving the same result, also sanctioned by the rabbis, was to inflict a blemish in the animal before it is born and while still in the birth canal of its mother.

Raphael Grunfeld’s book “Ner Eyal on Seder Moed” (distributed by Mesorah) is available at OU.org and your local Judaica bookstore. His new book, “Ner Eyal on Seder Nashim & Nezikin,” will be available shortly.

About the Author: Raphael Grunfeld’s book, “Ner Eyal on Seder Moed” (distributed by Mesorah) is available at OU.org and your local Jewish bookstore. His new book, “Ner Eyal on Seder Nashim & Nezikin,” will be available shortly.


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