Although no detailed description has come down of the taxation system practiced during this period, various particulars of it can be gathered from a number of scriptural references to the subject. Thus the prerogatives enumerated in I Samuel 8:11–17 give an indication of the servitudes, levies, and obligations which the king was entitled to impose on the population, including the following: a tenth of the yield of the field and of the vineyard and the flock, a levy on the vineyard and the olive grove, and compulsory personal service. The biblical description reflects the fiscal system in operation in the Canaanite city kingdoms. The First Book of Kings (4:7–15) tells of King Solomon's division of the kingdom into 12 administrative units, each under the charge of an officer responsible for providing the king and his household with victuals for one month in the year.
Matters of taxation are mentioned in the Bible under a variety of terms, a number of which continued to be in use in later times. One of these, mekhes (Num. 31:28, 37–41), is mentioned in connection with the tribute paid to the priests from the spoil of the war with the Midianites. The like term in Akkadian, miksu, described both a tribute from the yield of the fields and a toll levied on travelers and their goods (EM, 4 (1962), 964f.), and in the latter sense the term mekhes was employed by the sages of the Talmud (see, e.g., Kil. 9:2; Shab. 8:2, Sem. 2:9) and is still in use in modern Hebrew in the State of Israel. It is clear that a toll of this kind was levied by the kings of Israel on goods imported from abroad or those in transit (cf. I Kings 10:15). In the Bible the term mas (mod. Heb. for "tax") occurs in the sense of compulsory labor in the king's service (Ex. 1:11; II Sam 20:24; I Kings 4:6 and 5:27), and is synonymous with the term mas oved (JPS, "taskwork"). The main taxes imposed for the benefit of the Persian kingdom were the mindeh, belo, and halakh, which are mentioned in the letter of the Persian king to the scribe Ezra, exempting all the priests, levites, and other servants of the "house of God" from their payment (Ezra 7:24). The mindeh was a general tax payable in money, the belo a tax in specie, and the halakh apparently a tax on land. Besides the regular taxes, the king apparently from time to time imposed taxes on the people for special purposes, such as those exacted by Menahem and Jehoiakim for payment to the conquerors (II Kings 15:19–20 and 23:35).
Some of the tax alleviations mentioned in the Bible include exemptions given to "the father's house" in reward for a person's act of special bravery (I Sam. 17:25), the general release granted in celebration of a special occasion – as in the case of Queen Esther's coronation (Esth. 2:18) – and the exemption given to the servants of the Temple. At times the tax burden weighed heavily on the people and the oppressive fiscal policy followed in the time of King Solomon was a cause of the rebellion against his son Rehoboam (I Kings 12) and led to the killing of Adoram, the officer in charge of the levy. In a sense the concept of tax, as an imposed duty to contribute toward the needs of an individual, or of the public, is reflected also in the laws relating to matters of
("heave offering"); ma'aser ("tithe");
("gleanings," "the forgotten sheaf," and "the corner of the fields," respectively);
("charity"), the half-and third-
; shemittah ("the year of the release"); and yovel ("
The Talmud discusses both those taxes imposed by the Jewish local authorities on the Jewish town residents and those imposed by the central governmental authority on the Jewish public. The material on the laws of taxation during this period is scant, but the laws discussed nevertheless formed the basis of a number of post-talmudic tax rules.
JEWISH MUNICIPAL TAXES
"The resident of a town may be compelled to contribute to the building of a [town] wall, doors, and a crossbar" (BB 1:5), and to the building of a prayer house, to the purchase of the Scrolls of the Law and of the Prophets (Tosef., BM 11:23), and to the hire of the town guards (BB 8a). Similarly, he may be compelled to contribute toward the cost of the town's water supply and drainage system, an expense which must also be borne by a person who owns a dwelling in the town even though he is not resident there (Tosef., BM 11:17 according to the Vienna MS; see also Yad, Shekhenim 6:3; Resp. Maharam of Rothenburg quoted in Mordekhai, BB 475; Sh. Ar., ḤM 163:2). In the same way the townsmen have to contribute toward the cost of providing the poor with food and clothing and toward the communal charity box and ma'ot ḥittin (money for the poor to buy wheat on Passover; BB ibid.; TJ, BB 1:4, 12d). For the purpose of liability for some of these taxes – namely for repair of the wall or ma'ot ḥittin – a person is regarded in the Talmud (TJ and TB, ibid.) as a resident if he has lived in a town for 12 months; if he has bought a dwelling there he immediately becomes liable; as regards certain contributions, e.g., to the charity box, he becomes liable upon shorter periods of residence (ibid., see also
regard to ma'ot ḥittin on Passover, see further Or Zaru'a, Hilkhot Pesaḥim, no. 255).
The amoraim of Ereẓ Israel discussed the principle of yardsticks for determining the rate of such taxes, deliberating whether a tax should be levied as a poll tax (according to the number of persons in the family), or according to financial means, or "according to the proximity of the dwelling" (that is according to the measure of benefit the taxpayer derived from his relative proximity to the wall), the first method being rejected in favor of one of the other two (BB 7b). The majority of the posekim held that these two yardsticks should be combined in such a manner that the rate of contribution would first be apportioned according to the financial means of each resident and then according to the measure of benefit derived from his relative proximity to the wall, so that "a poor man nearer the wall shall pay more than one further away; a rich man nearer the wall shall pay more than one further away, but a rich man further from the wall shall pay more than a poor man nearer the wall" (Tos. to BB 7b; Tur and Sh. Ar., ḤM 163:3; for a different opinion, see Yad, Shekhenim 6:4 and R. Hananel, BB ibid.). A similar problem is discussed in the Talmud in connection with a caravan in the wilderness threatened by a band of robbers and it is stated that: "the contribution to be paid by each [for buying them off] shall be apportioned in accordance with the amount of money which each has and not in accordance with the number of persons there"; but if they hire a guide to go in front of them, the calculation will have to be made "also according to the number of souls" in the caravan since a misstep could involve danger to life (Tosef., BM 7:13; BK 116b; in the TJ, BM 6:4, 11a the word "also" is omitted before the words "according to the number of souls"); however all this only applies if the manner of apportionment of the contribution is not determined by local custom, since this always prevails (BK 116b; see also Tosef., BK, and TJ, loc. cit.).
TAXES OF THE CENTRAL GOVERNMENT
The tannaitic and amoraic sources mention various kinds of taxes imposed by the general government. Some of those imposed by the Roman authorities in Ereẓ Israel included the tributum soli, a land tax, the tributum capitis or poll tax, arnona, and a customs toll on the transit of goods, as well as a toll on highways and bridges (see Alon, bibl.). Among the taxes levied by the Persian authorities were the taska, a land tax, and the karga, a poll tax (see J. Newman, bibl.).
The Persian Government in Babylonia
The Babylonian halakhic scholars upheld the various taxes imposed by the governmental authorities, in reliance on the rule of
*dina de-malkhuta dina
("the law of the land is law," BB 55a, et al.), even giving effect to certain acts which were valid under general law but not in Jewish law. Thus under Persian law a person's land became charged in the king's favor for payment of the taska, and if it was not paid the land could be sold by the royal officials to anyone paying the tax in the landowner's stead. The amora Samuel upheld the validity of such a sale on the basis of the above-mentioned rule (BB 55a; see also BM 73b); Similarly upheld was the rule of Persian law that not only the king could enslave a person who failed to pay the karga but anyone else paying the tax in the debtor's stead (Yev. 46a; BM 73b) – except that in Jewish law "he shall not treat him as a slave" (Yad, Gezelah, 5:16; Sh. Ar., YD 267:16).
The Roman Government in Ereẓ Israel
The scholars of Ereẓ Israel, however, looked upon the Romans as foreign conquerors whose rule should be rebelled against and whose taxes were an instrument of robbery and extortion leveled against the Jews. Hence tax evasion was customary in Ereẓ Israel (Ned. 3:4; TJ, Sot. 5:7; BB 127b, R. Johanan) and there the tannaim discussed the question of whether or not it was permissible to avoid paying customs in certain circumstances (BK 113a). A certain change of attitude is manifest at the time of R. Judah ha-Nasi, who, like some other men, instructed his sons not to elude customs (lest they be detected and the authorities confiscate everything they had; Pes. 112b; cf. TJ, Ket. 12:3). Regarded in a similarly unfavorable light were the gabba'im and mokhesim – Jewish officials and publicans who collected taxes and imposts on behalf of the Roman authorities – who were looked upon as robbers and disqualified from being witnesses or judges (Sanh. 25b), whose money could not be taken for charitable purposes (BK 10:1), and who were not acceptable as
(Tosef., Dem. 3:4; TJ, Dem. 2:3). At a later time the opposition to Roman rule became less intense and the halakhot permitting customs evasion came to be interpreted as applying to customs dues imposed without any specified limit or those imposed without the authority of the ruling power (but by the customs collector himself) – in which case it was held that the rule of dina de-malkhuta dina did not apply (BK 113a; Ned. 28a). Customs evasion eventually became strictly prohibited: "a person who evades customs is as one who has shed blood – and not only shed blood, but also worshiped idols, committed acts of unchastity, and profaned the Sabbath" (Sem. 2:9). Similarly, it was laid down in the codes: "If the king fixes a tax of, say, a third or a quarter or another fixed measure and appoints to collect it on his behalf an Israelite known to be a trustworthy person who would not add to what was ordered by the king, this collector is not presumed to be a robber, for the king's decree has the force of law. Moreover, one who avoids paying such a tax is a transgressor, for he steals the king's property, whether the king be a gentile or an Israelite" (Yad, Gezelah, 5:11; cf. Sanh. 25b).
Just as the Persian rulers exempted priests, levites, and other servants of the Temple from the payment of taxes, so the sages of the Talmud laid down that talmidei ḥakhamim should be exempted from contributing toward the upkeep of the town guard – for the reason that they did not need any protection since the Torah was their guard (Ned. 62b; BB 7bff.). However, some of the sages did not exempt rabbinical scholars from such imposts (R. Judah ha-Nasi and R. Naḥman b. Ḥisda, BB ibid.) and the fact that there were scholars who paid these is confirmed in several talmudic sources (see e.g., Yev. 17a; Sanh. 27a–b; Yoma 77a – expunged by the
censorship and quoted in Ein Ya'akov and Dikdukei Soferim, Yoma 77a). Exemption of scholars from tax payments was known in other contemporary legal systems (see S. Lieberman, in: JQR, 36 (1945/46), 360–4) and was also a practice in later times (see below). It was laid down that rabbinical scholars must pay taxes levied for the upkeep of roads and streets (BB 8a; Yad, Shekhenim, 6:6; Sh. Ar., YD 243:2, and ḤM 163:4).
(whose liabilities are lightened in a number of respects in Jewish law) must contribute taxes for purposes of the town guard, the digging of a well, the supply of water to the town and fields, and toward all other matters from which they derive benefit; if the expenditure fails to bring about the desired result, the orphans will be entitled to a refund of whatever they paid, since in the absence of a benefit such payment amounts to a waiver of their money, an act beyond their legal capacity (BB loc. cit. and Rashi thereto; Yad, and Sh. Ar., loc. cit.). In the case of an unemployed person who has no income (a pardakht) the town residents may approach the government tax collector to release him from his tax contribution; sometimes he is held liable like all other residents and sometimes released (BB 55a; see also Rashbam, Tos., Beit ha-Beḥirah and Shitah Mekubbeẓet thereto; Kohut, Arukh, S.V. "אנדיסק" and supplement thereto S.V. "פרדכש"; M. Beer, bibl., pp. 250f.).
The main development of Jewish tax law came in the post-talmudic period, both as regards the determination of general principles and detailed rules and as regards the volume and compass of the material. At the same time this development was an important factor in the evolution of Jewish public law and a number of basic principles in this field evolved from the discussions on the laws of taxation. Therefore a comprehensive discussion of the laws of taxation offers some insight into the evolution of Jewish public and administrative law (see also
In the post-talmudic period the distinction between Jewish municipal taxes and those imposed by the government was maintained as the basis for discussion of the laws of taxation, and the great development in this branch of the law is mainly to be ascribed to two historical factors affecting the Jewish people, one internal, the other external. From the close of the geonic period onward, Jewish autonomy found its main expression in the various Jewish communal organizations or in a roof organization embracing a number of communities. Starting from this time Jewish life was molded by the new historical reality that hegemony was no longer exercised over the whole Jewish dispersion by a single center – as previously in Ereẓ Israel and Babylonia – and different centers, functioning alongside or in succession to one another, came into existence in Spain, Germany, North Africa, the Balkan countries, Poland, Western Europe, and so on. The result was the strengthening of the individual community and the development of its organizations, and this led in turn to great development in the fields of administrative law and communal enactment (see
), and to the creation of a proliferous collection of decisions concerning relations between the citizen and the public. The community provided various social services and maintained religious, educational, and judicial institutions, as well as its own administrative and governing bodies, all of which had to be financed through various methods of taxation.
The decisive external factor was that the central governments of the various countries of Jewish settlement in the Middle Ages imposed heavy taxes on the Jews (as "toleration money") in return for their right to live in these countries, and the halakhic scholars stressed their factual purpose so far as the Jewish community was concerned: "the various taxes are for the purposes of protection and they guard us amid the nations; for what reason would the nations have to protect us and to settle us in their midst if not for the benefit they derive by exacting taxes and imposts from the Jews?" (Resp. Ran, no. 2; Piskei ha-Rosh, BB 1:29). These taxes were not imposed on the individual directly, but collectively on all the communities in a particular area or on a specific community, and the authorities held the communal leaders responsible for payment of the overall amount. Thus "in all matters of taxation each community has been obliged to make a partnership of its members… since the king makes a general demand and not from the individual" (Resp. Rashba, vol. 5, no. 270). Normally the central authority periodically imposed a "fixed tax" of a comparatively reasonable amount. Sometimes however – on account of special circumstances such as war – an "unlimited tax" of a very large sum of money was imposed, and in these cases the scholars laid down different rules from those governing the regular tax (see illustrations below; on the two types of taxes, see, e.g., Terumat ha-Deshen, beginning of Resp. no. 341 and conclusion of no. 342). The fact that taxes were collected by the community both for its own purposes and on behalf of the central authority was instrumental in the development of a refined tax law system governing matters such as determination of the rate of contribution to the tax and tax classification, assessment adjudication and collection, and determination of tax alleviations and exemptions, a system which was evolved in close cooperation between the halakhic scholars and communal leaders.
LEGAL FOUNDATIONS OF THE TAX LAW SYSTEM
In part, the tax law of this period was based on the legal principles determined by the scholars in talmudic times, but in the main it was derived from additional legal sources.
Dina de-Malkhuta Dina
This doctrine was relied upon and its application extended to meet the new and changing needs of the time. Thus, for instance, many scholars found it necessary to decide – contrary to the rule in the Talmud that the doctrine of dina de-malkhuta dina does not apply to an unlimited tax – that a tax exacted for the waging of war and "other costly needs" should be heeded even if it was an unlimited tax (R. Isaac the Elder, quoted in Haggahot Mordekhai, BB no.
659 end, and in Teshuvot Maimuniyyot, Gezelah, no. 9). This change resulted from the strong hand displayed by the ruling power, particularly in the case of German Jewry: "even if our taxes at the present time have no fixed rate but are imposed at the will of the ruler, it is necessary that they be paid and whoever fails to do so is liable to suffer punishment of death, plunder, or imprisonment… for in these times these are all called taxes" (Mordekhai, BK no. 190, in the name of Meir of Rothenburg; see also Resp. Ḥayyim Or Zaru'a, no. 253, and cf. his criticism, no. 110; Resp. Maharil, no. 71; Resp. Maharyw (Jacob Weil), no. 38). In Spain, too, in the 14th century, a similar opinion was expressed although in a different context: "all government decrees concerning Jews, even as regards a monetary fine, are a matter of pikku'aḥ nefesh" (Resp. Ribash, no. 460). From the legal standpoint this approach was justified by the scholars on the grounds that since it was known that the ruling power behaved in the manner described and that with that knowledge "we establish residence under them and take upon ourselves the hardships and burdens they impose, all of these shall henceforth fall under the rule of dina de-malkhuta dina" (Terumat ha-Deshen, Resp. no. 341; see also Resp. Maharam Mintz, no. 1; Resp. Maharik, no. 4; for further illustrations see below).
Tax Rules from the Talmudic Period
The principle that the town residents must contribute toward the costs of their security needs, the provision of social and religious services, sanitation, and so on, was applied and extended in post-talmudic times to the payment of various other taxes (Meir of Rothenburg, quoted in Mordekhai, BB, 478) and generally to "any matter of the town's needs" (Mordekhai, loc. cit.; Resp.Rosh, 6:22) so as to cover the whole spectrum of the community's requirements (Sh. Ar., ḤM 163:1, and see below).
The Community as Partnership
In addition, the post-talmudic scholars applied to the legal relationship between different members of the community the law of
, and by virtue of this deduced a number of conclusions pertaining to the field of tax law. Thus, for instance, they based the legal right to oblige a community member to swear that his declaration of taxable assets was correct (see below) on the rule that one partner may oblige his fellow to swear an oath even in the case of a "doubtful" plea (ta'anat shema; Terumat ha-Deshen, Resp. no. 341). The rule that a community member might not secure a personal tax waiver except through the mediation of the community was justified likewise on the principle of partnership law restricting a partner's right to enjoy personally a benefit which should be enjoyed by the whole partnership without the consent of his partners (Resp. Maharam of Rothenburg, ed. Prague, no. 918, 932). Similarly, the scholars followed the rule that partners are jointly liable for the whole of a partnership debt in laying down that all members of the community bore collective responsibility for the whole amount of the tax imposed (Resp. Rosh 5:9; for further illustration see, e.g., Mordekhai, Ket. no. 239; Rema, ḤM 163:3, 6 and 176:25; Noda bi-Yhudah, Mahadura Tinyana, ḤM no. 40, and see below).
Communal Enactments (Takkanot ha-Kahal) and Custom
The scholars found the methods outlined above insufficient to overcome the wide array of tax law problems with which they and the communal leaders were confronted. Application of the private law rules of partnership offered no comprehensive basis for solving the myriad tax law problems that arose and belonged, by their very nature, to the field of the public law – not only because partnership law offered no analogy for the overwhelming majority of tax law matters but also because a legal arrangement governing relationships between two or three partners was often unsuited to regulation of the legal relationships between all the different units comprising the community. They found the way to settling most of the laws of taxation through using the authority vested in the public to make enactments (see
), and by means of the legal source of custom (see
). A certain initial hesitation over the binding nature of a custom when it was contrary to "an established and known halakhah" of the Talmud on a matter of tax law (see the statement of R. Baruch of Mainz in the 13th century, quoted in Mordekhai, BB no. 477) was overcome, and every rule and usage deriving from communal enactment or custom was given full legal recognition. The fact that these two legal sources were instrumental in the development of most of the post-talmudic tax laws accounts, therefore, for the great diversity found in Jewish tax law, which reflects the takkanot and customs of the various Jewish communities.
The existence of this fact was constantly stressed by the halakhic scholars of all communities. Thus
Solomon b. Abraham *Adret
, leader of Spanish Jewry in the 13th century and one of the main formulators of Jewish public law, stated: "Nowhere are the tax laws founded on talmudic sanctity and everywhere there are to be found variations of such laws deriving from local usage and the consent of earlier scholars who 'set the landmarks,' and the town residents are entitled to establish fixed takkanot and uphold recognized customs as they please even if they do not accord with the halakhah, this being a matter of the civil law. Therefore if in this matter they have a known custom it should be followed, since custom overrides the halakhah in matters of this kind" (Resp. Rashba, vol. 4, nos. 260, 177; vol. 3, nos. 398, 436; vol. 5, nos. 180, 363, 270; vol. 1, no. 664, et al.). A similar view was expressed by
R. *Meir b. Baruch
of Rothenburg, a contemporary of Adret and leader of German Jewry: "tax matters are dependent neither on analogy from nor on express talmudic law, but on the custom of the land… since tax laws are part of the law of the land… and the product of many different customs" (Resp. Maharam of Rothenburg, ed. Prague, nos. 106, 995; see also the statements of R. Avigdor Kohen Ẓedek, quoted in Mordekhai, BB, 477).
R. Israel *Isserlein
added the following explicit remarks: "In all matters affecting the public, their custom shall be followed in accordance with the order they set for themselves, as dictated
by their needs and the matter under consideration – for if they be required to follow the strict law in every matter, there will always be strife among themselves; furthermore, at the outset they allow each other to waive the strict law and make up their minds to follow the imperatives of their own custom" (Terumat ha-Deshen, Resp. no. 342). This idea was restated in a responsum of the 16th-century Greek halakhist, Benjamin Ze'ev (Binyamin Ze'ev, 293), who added: "a custom of the town residents overrides [a decision of] a court of talmudic scholars, even though it has relied on Scripture, and not merely the custom of scholars but also the custom of ass drivers is to be relied upon" (see also Resp. Maharashdam, ḤM nos. 369 and 404; Noda bi-Yhudah, Mahadura Tinyana, ḤM no. 40).
In the context of tax law, important principles pertaining to custom in general were laid down. These included the stipulation that a custom must be established and widespread: "that the town residents practiced the custom at least three times, for often the public reaches a conclusion according to need without intending to establish a custom at all" (Terumat ha-Deshen, Resp. no. 342). Similarly, it was decided that the established existence of a custom need not be proved in the formal ways prescribed by the laws of evidence: "although it is necessary to inquire whether a custom is established or not, the inquiry itself need not be overly formal and hearsay evidence as well as the evidence of disqualified witnesses is admissible" (ibid.). These principles were accepted as decided law (Darkhei Moshe, ḤM 163, n. 7; Rema, ḤM 163: 3). (For validity of a "bad custom" in the tax law field, see
An exaggerated proliferation of local takkanot and customs was prevented by the fact that these were usually enacted for or adopted by all the communities in a particular region. Thus Solomon b. Abraham Adret relates that the Jewish community of Barcelona and its environs enacted uniform takkanot in the matter of taxes, their assessment and collection – "one chest and one pocket for us all" – and he describes how the community of Barcelona proper, the largest in the region, first consulted with all the surrounding communities on the takkanot to be enacted, although in other areas the main community sometimes neglected such prior consultation (Resp. Rashba, vol. 3, no. 412). Other regional enactments of this kind are evidenced in the takkanot of Vallidolid (of 1432) and those of the German communities (see Finkelstein, bibl.; also Halpern, Pinkas; Takkanot Medinat Mehrin; Pinkas ha-Medinah, bibl.; see further Resp. Maharam of Rothenburg, ed., Prague, no. 241; Massa Melekh, 5: 1, 1–3).
INTEGRATION OF TAX LAW INTO THE JEWISH LEGAL SYSTEM
The creation of tax laws in this manner carried with it the danger that the link between this branch of the law and the overall system of Jewish law, which was based on the talmudic halakhah and its evolution, might become weakened. This aspect was stressed by the halakhic scholars, and Solomon b. Abraham Adret, for instance, pointed out the diversity in tax laws and noted that this was because the communal enactments were not based on binding talmudic law, "for if so there would be one measure for all the communities, as there is in regard to all other laws of the Torah" (Resp. Rashba, vol. 5, no. 270; and see also vol. 3, no. 412). The scholars and communal leaders nevertheless succeeded in preserving the proliferous body of the tax laws that developed in the Diaspora during this period as an integral part of the Jewish legal system, mainly through adherence to the principles enumerated below.
Reliance on Halakhic Sources
The halakhic scholars were understandably anxious to establish a link between the various takkanot and customs and the strict law: "even though it has been said… that in tax matters custom overrides the law, it is at any rate desirable and proper to examine carefully whether we can reconcile all the customs with the strict law, and even if not entirely so it is yet preferable that we find support in the teachings of the scholars and substantiate them with the aid of reason and logic" (Terumat ha-Deshen, Resp. no. 342). Thus, for example, support in the form of several talmudic references, was found for the widely accepted custom that a person appealing against a tax assessment has first to pay as assessed before the legal hearing could take place, even though this custom was in contradiction to the Jewish law principle that the burden of proof is on the claimant (see below). Similarly, a takkanah aimed at extending the creditor's lien to cover also a tax debtor's money in the hands of a third party even when it was no longer held in specie – and contrary to a rule of the Talmud – was justified by R. Nissim by way of an interpretation which lent a specific legal character to a tax debt (see below). An interesting expression of this general trend is found in two responsa of the 17th-century German halakhic scholar
Jair Ḥayyim *Bacharach
(Resp. Ḥavvot Ya'ir, nos. 57, 58), who was consulted in both cases by the communal leaders on the procedure to be followed upon their discovery that the taxpayer's assets in fact far exceeded the amount on which he had been assessed. After giving a detailed exposition of the talmudic law and existing custom concerning tax assessment, Bacharach went on to describe his approach to the question of integrating law and takkanot in the field of taxation: "although certainly in assessment and related matters the community has authority to act as it thinks proper, and it is not necessary to hearken to the voice of a person who seeks to find the original approach of the law [on these matters], yet you should endeavor to examine the reasoning of our scholars and call it to your aid… and thereafter do as you see fit, keeping close to the law of the Torah." Having dealt with the attitude of the halakhah and with the existing takkanot and customs, Bacharach concluded by stating: "So my humble opinion tends to be like the decisions which are given by lay tribunals [piskei ba'alei battim; see
] together with some measure of application of the strict law."
Legal Interpretation by the Halakhic Scholars
Another reason for the orderly integration of tax enactments and customs into the Jewish legal system was the fact that in most cases the
problems and disputes arising from them were brought before the halakhic scholars. In answering these problems and in their interpretation of the various takkanot and customs, the scholars applied the accepted rules of interpretation as well as the general principles of Jewish law normally applied in the courts (see below) and a problem that fell outside the purview of an existing custom or takkanah was dealt with according to talmudic law and the codes (see, e.g., Resp., Rashba, vol. 4, no. 260; Resp. Maharam of Rothenburg, loc. cit., and further illustration below), since "in all matters that have not been explicitly stated [in communal enactments] we are obliged to adhere as close as possible to the law of the Torah" (Resp. Rama da Fano, no. 43; Resp. Maharashdam, ḤM no. 442).
Principles of Equity and Justice
Also instrumental in the maintenance of an organic link between tax laws and the general system of Jewish law was the scholars' practice of scrutinizing customs and enactments and invalidating them when they were contrary to Jewish law principles of equity and justice. Thus a takkanah aimed at rendering the taxpayer liable for double taxation on the same property – both at his place of residence and at the place where the property was situated – was rendered null since "this is nothing but robbery, and it is not possible to stipulate contrary to the law of robbery" (Resp. Rasba, vol. 5, no. 178; vol. 1, no. 788; see also Resp. Maharam of Rothenburg, ed. Prague, no. 106). On the strength of the said principles the scholars also invalidated another takkanah which purported to lend a tax obligation retroactive effect, and further, excluded the possibility of combining two methods of tax assessment in a manner drastically increasing the taxpayer's burden (see below). Similarly, a tax custom whose purpose was "to extract vengeance from an individual or individuals" was held to be of no force and effect (Massa Melekh, Ne'ilat She'arim, Minhagei Mamon).
Accumulation of Tax Takkanot and Customs in Halakhic Literature
Another reason for the close link between the tax law and the general halakhic system is to be found in the fact that a very substantial part of tax customs and takkanot were quoted, often in full, and discussed in the vast responsa literature and other compilations of the halakhic scholars (see below).
The problem of the yardstick to be applied in the assessment of an individual's tax liability continued to occupy the attention of the post-talmudic halakhic scholars.
This tax, apparently imposed throughout the post-talmudic period, was "a fixed per capita allocation" (Resp. Rashba, vol. 5, no. 220) and was often referred to during this period by its talmudic name, karga (Resp. Rashba, vol. 5, no. 178, et al.).
ASSESSMENT ACCORDING TO FINANCIAL MEANS
Generally, most taxes were levied in accordance with the taxpayer's means, a principle the scholars regarded as fundamental to Jewish law. Thus it was decided that the individual members of the community should contribute according to their means toward a specified sum required for their own security needs, contrary to the practice in the case of an amount collected by the central authority: "and if at first, when the gentiles were appointed to be in charge of the guards, they departed from Jewish law in equating the poor with the rich, yet now that they entrusted this matter to ourselves we should not change the law of the Torah that in matters dependent on money the calculation must be made according to means… and it may not be said… that the rich shall not make increase, nor the poor decrease" (Mordekhai, BB no. 475 in the name of Maharam of Rothenburg, and no. 497). This approach was fortified by a legal explanation with an interesting historical background: "whatever new decrees and afflictions the gentiles may impose on Israel, even if they should be minded to afflict us by having us refrain from food and drink, yet all is collected according to financial means, for their main concern is the money" (Piskei ha-Rosh, BB 1:22; cf. also takkanot of the Saragossa community, in Dinur, Golah, 2, pt. 2 (19662), 366f.).
ASSESSMENT IN ACCORDANCE WITH THE TAX PURPOSE
Some scholars held that individual tax liability should be assessed in accordance with the purpose for which the tax was imposed. Thus if the purpose was to raise a specific sum in order to bribe the authorities to prevent riots against the Jews on the eve of their festivals, "the law holds that they should pay [tax] according to means as well as souls, since on these days both persons and property are endangered – all this in accordance with the need of the hour and the local situation." In the case of regular taxes imposed by the authorities, means alone was to be the criterion: "for the kings and governments only impose taxes on people with means, and they protect their means by payment of the taxes." If a specified sum was to be raised for the purpose of bribing the authorities not to forbid ritual slaughter or the sale of bread to Jews, assessment was to be according to souls alone, since in this case rich and poor would suffer equal harm. All these distinctions, however, were to remain subject to local custom and enactment (Resp. Rashba, vol. 3, no. 401). All were not consistently observed, and in another responsum Solomon b. Abraham Adret himself (ibid., no. 381) laid down that the cantor's emolument was to be paid out of the community chest; although he fulfills the duty for rich and poor alike the poor cannot afford as much as the rich, and in all matters of the public weal which are dependent on money the contribution must be made according to means. On the other hand, in a later period the opinion was expressed that in the case of the cantor's emolument, the assessment required a combination of two methods – one-half according to souls – for although the poor had as much need of the cantor as did the rich, yet the rich were prepared to pay more to a cantor with a better voice, and "therefore they made this compromise" (Sh. Ar., OḤ, 53:23 and Taz, ibid., no. 14). As a result of the multiplication of possible distinctions of this nature, it was laid down that these matters had to be decided
"on the merits of each case, as the judges see fit" (Rema, ḤM 163:3); "since these matters are not clearly dealt with in the halakhah as found in books only, but must be dealt with by the judges… in taking account of the abnormal and emergency situation and the decrees of the authorities" (Terumat ha-Deshen, Resp. no. 345). It was held that liability for tax existed even when the taxpayer had no need for the services financed thereby and therefore could not expect any return consideration. Thus it was decided that the cost of educating children – if this was beyond their fathers' means – should be borne by the whole community, each member contributing according to his means (Resp. Ramah, no. 241; Sh. Ar., loc. cit.); moreover, it was held to be the rule that all the needs of the town must be financed by the whole community, even if some were not in need of certain services, such as a wedding hall or ritual bath, and so on (Resp. Mahari Mintz, no. 7: Sh. Ar., loc. cit.). At different times when the rich sought to evade their tax duty, the halakhic scholars responded in various ways (see, e.g., Dinur, Golah, 2, pt. 2 (1966), 393–5).
The purposes for which taxes were levied during the post-talmudic period embraced a wide spectrum of municipal needs – such as maintaining the town guard, providing health, educational, and religious services, and for judicial and civil execution institutions, funds for combating informers, funds for charity to the poor, for hospitality, and for ma'ot ḥittin on Passover – in addition to various taxes, fixed or otherwise, imposed by the central authorities on the Jewish community and collected by the communal authorities from its members (see illustrations cited and see also Tur, Sh. Ar., ḤM 163, and standard commentaries). These taxes were known by various names, some corresponding to those mentioned in the Talmud, and other taxes were called by the names customary in the various countries of Jewish settlement.
Taxes were mainly direct and based on income from property, movable or immovable: "for property which cannot be utilized and earned from is not properly taxable" (Resp. Ran, no. 2:21). Non-income-bearing property was subject to tax reduction in the case of a special property tax or a non-recurrent "unprescribed" tax imposed in a very large amount in the event of a special false accusation or other emergency. The increasingly severe fiscal burden imposed by the ruling power, particularly in the case of German Jewry, fostered the tendency toward imposing taxes on non-income-bearing property also, as will be detailed below.
"It was accepted in ancient times that taxes should not be imposed on land, for tax derives only from a business transaction" (Maharam of Rothenburg, quoted in Mordekhai, BB no. 481), and this continued to be the practice in 13th-century Germany although unsuccessful efforts had been made to bring about a change (ibid.). A land tax, in Meir b. Baruch's opinion (ibid.), could exist only in the event that "the land itself is tax-burdened," that is if the tax was expressly imposed as a property tax on land, or if the tax was imposed in a time of emergency when there was reason to fear "the plunder of courtyards and land, and the burning and destruction of houses" (Sh. Ar., ḤM 163:3). Similarly, in the case of a person buying and selling land, "it is the universal custom that tax is payable on everything that a person may wish to sell, whether household articles or land… for anything that is for sale is like merchandise" (Resp. Maharyw, no. 84, and see below).
In the case of houses it was decided that local custom should be followed, and when there was no such custom the issue depended on the nature of the tax: if imposed to finance the expenses of the town guard the tax would extend also to houses, i.e., to owners of houses in the town even if they did not reside there (see below); however, if the tax "be like all other fixed taxes payable annually – to the ruling power or municipal authorities – on account of the income earned in the town, houses will not be subject to tax; yet if a person should own two or three houses, he must pay tax on them for this is no different to any other income, but he shall not pay tax on his own dwelling, save in the case of a tax in a large amount or when the ruler has determined that they shall pay tax on everything they own" (Maharam of Rothenburg, quoted in Mordekhai, BB no. 475 and see Resp. Maharyw, no. 84).
In certain areas of Spain in the 13th century, tax was payable on land even independently of its sale (Resp. Rashba, vol. 5, no. 182). In one case it was decided that on land and all else from which no income was derived, tax was payable at one-quarter of the regular rate (Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 184); this was apparently a property tax expressly imposed as such. On houses, however, no tax was imposed (Resp. Rashba, vol. 5, no. 179, 182).
VINEYARDS AND FIELDS
The rule was established that even income-bearing movable property from which a loss could more commonly be anticipated than a profit – such as the yield from a field or vineyard – should not be taxable. Hence it was decided as early as the 11th century that a tax which the town residents sought to impose on a woman's vineyard was contrary to law because the great effort and expense involved in the vineyard's cultivation did not necessarily assure an income, and it was wrong that an asset should be consumed by the tax levied on it (Resp. Joseph Tov Elem (Bonfils), quoted in Resp. Maharam of Rothenburg, ed. Prague, no. 941 and in Mordekhai, BB no. 481; see also Takkanot Rashi, quoted in Resp. Maharam of Rothenburg, ed. Berlin, no. 866 and in Finkelstein, bibl., p. 149). However, in 15th-century Germany there was a change in the profitability of vineyards: "in these countries, in the main the people sustain themselves by their vineyards and derive their wealth from them." Thus a situation arose in which there was no possibility of exempting vineyards entirely from taxation yet frequent heavy losses from such property could nevertheless be anticipated. It was decided, therefore, that tax was to be assessed on one-half of the value of the property, but that no exemption was to be granted in the
case of a "very large and exaggerated" emergency tax (Terumat ha-Deshen, Resp. no. 342). In Salonika, in the 17th century, tax was payable on the full value (Massa Melekh, 3: 2, 1).
MONEY LOANED ON INTEREST
This was an obvious category of taxable property: "there is no more convenient class of merchandise; since the lender holds his pledge and his money grows, he benefits without effort or strain, or any need to supervise, nor does he have any expense…" (R. Yom Tov Elem, quoted in Resp. Maharam of Rothenburg, ed. Prague, no. 941). In the course of time, when it became increasingly likely that money loaned to non-Jewish borrowers would never be repaid, it was decided that the interest was not to be taxed (as in the case of vineyards), except that exemption was not to be granted on the whole amount of the loan, for since "in our time we mostly earn our livelihood from lending money on interest, what other source of taxation is there?" If interest was reflected as capital and compounded thereon, the interest was to be regarded as capital and taxable (Terumat ha-Deshen, Resp. no. 342). A person was held to be liable for tax on income derived not only from his own property but also from the property of others held in his possession (Mordekhai, BB no. 481; Nimmukei Menahem of Menahem Merseburg, Din. 5; see also various opinions in Terumat ha-Deshen, Resp. no. 342 and Rema, ḤM 163:3). It was held that a debt which the creditor despaired of recovering might be excluded from his list of taxable property provided that he assigned his right in the matter to the communal trustee; if the debt was recovered by the community, two-thirds of it had to go to the community and the remainder to the creditor (Terumat ha-Deshen, loc. cit.; for a different ratio, see Resp. Maharyw, nos. 84 and 133). In another takkanah debts were declared completely tax-free (Resp. Rama da Fano, no. 43).
MONEY IN DEPOSIT OR TRUST
's opinion (quoted in Terumat ha-Deshen, Resp. no. 342) that money deposited with a trustee was not taxable, since no profit was derived from it by its owner. From the 13th century onward, the majority of the German posekim came to hold the converse opinion (Resp. Ḥayyim Or Zaru'a, no. 253; Terumat ha-Deshen, loc. cit.; Resp. Maharyw, no. 133; cf. the contrary opinion in Nimmukei Menahem of Menahem Merseburg, Dinim 10, 18), and it was stated: "Our custom is that a person is liable on all that he owns, whether openly or concealed" (Resp. Maharil, no. 121). In a special takkanah of the Mantua community in the 16th century, even a "hidden portion [maneh kavur] earning no income" was declared taxable. It was necessary to decide that no tax was payable for the period of the theft on a sum of money stolen and later returned to its owner, since the particularly stringent nature of the rule which – contrary to the general law and custom – rendered taxable such money "from which its owner certainly derives no income," required that it be narrowly interpreted and its operation confined to the case of an asset "guarded in the owner's possession" (Resp. Rama da Fano, no. 43; see also Rema, ḤM 163:3).
RIGHTS AND OBLIGATIONS
Some scholars held that a property right recoverable by action, such as a right to payment of a dowry, was taxable (Resp. Maharyw, no. 82), but not a right which its owner was uncertain of recovering; nor were the unpaid wages of a teacher, laborer, or employee taxable – even if already due – until they were actually paid (Terumat ha-Deshen, Resp. no. 342). A debt was held to be deductible from the amount of a person's taxable assets (Resp. Rashba, vol. 1, no. 1074, et al.), and apparently the deduction was allowed only after the debt had matured, although in 15th-century Germany it was allowed even before maturity of the debt (Terumat ha-Deshen and Rema, loc. cit.).
JEWELRY, GOLD, AND OTHER VALUABLE ARTICLES
It was deduced from the statements of "some of the geonim" (quoted in Terumat ha-Deshen, loc. cit.) that no tax was payable on property of this kind since no profit was derived from it; an 11th-century takkanah nevertheless records the assessment of such articles at half value for tax purposes (Takkanot Rashi, quoted in Resp. Maharam of Rothenburg, ed. Berlin, no. 866), and in the 15th century it was the practice to assess these articles at their full value on account of the "swindlers" who used to invest the money they earned in precious stones and jewels in order to gain tax exemption (Terumat ha-Deshen, loc. cit.).
Solomon b. Abraham Adret ruled that book manuscripts which were of very great value, were taxable at one-quarter of their value, i.e., at the same rate as land, even though they were not income producing (Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 184); however the majority of the scholars exempted them entirely – both because books were not income producing and "lest in future people refrain from hiring scribes to write books" (Terumat ha-Deshen, loc. cit.).
MEAT AND WINE
A tax on the purchase and sale of wine and meat is mentioned in various medieval takkanot and responsa (Resp. Rashba, vol. 2, no. 213; Resp.Rosh, nos. 6: 14, 102:6; Resp. Ritba, no. 44; Takkanot Castile, in Finkelstein, bibl., p. 371).
At first it was considered that there was no ceiling on the amount of a person's tax liability: "it has been the custom since ancient times… that a person is liable for tax, however high the amount, on all of his business transactions" (Resp. Maharam of Rothenburg, ed. Berlin, no. 127). Later, in certain areas, such a ceiling was provided for, but was only applied in respect of regular taxes and not of those specially imposed in times of emergency or in other special circumstances (Massa Ḥayyim, Missim ve-Arnoniyyot, nos. 27, 61).
Property dedicated to the needs of the poor, or to religious and educational needs, and the like (see
) was regarded as exempt from tax on various grounds: since consecrated property was deemed to belong to the community it was not logical for the community
to tax its own assets (Resp. Ran, no. 2); such property was not intended for profit-making purposes – a precondition to taxation (ibid.); and in order to encourage the consecration of property (to strengthen the hands of those "who perform a mitzvah" (ibid., Terumat ha-Deshen, Resp. no. 342). It was decided that the exemption only applied in respect of property that had already been dedicated and set aside at a particular place, but not otherwise, in order to discourage fraudulent acts (Resp. Rashba, vol. 5, nos. 142 and 141, 143; vol. 2, no. 57; Resp. Rosh. 13:6; Sh. Ar., ḤM 163:3; for further particulars, see Massa Melekh, pt. 3).
It was laid down that tax was payable at the place where the taxpayer was resident. In general, a person was regarded as a resident of the town in which he had lived for a period of 12 months or more; a lesser period entailed the duty to contribute toward some of the town's needs, and a person immediately became the resident of a town in which he purchased a dwelling (see above). In the 12th century the posekim disagreed on the criteria of residence for purposes of tax liability. According to one view, "even if he has rented a house he is not to be likened to one who has purchased a dwelling there [in the town], since in the latter case the kinyan proves that he has made up his mind to settle, but if a dwelling is rented it may not be his intention to settle and he should not be held liable"; another opinion was that "a person who comes to dwell and settle there is like one who purchases a dwelling there" (opinions quoted in Mordekhai, BB no. 477 and in Resp. Maharyw, no. 124), and this latter became the accepted opinion (Terumat ha-Deshen, Resp. no. 342; Resp. Maharik, no. 17). It was held that at all events a fixed local custom to impose tax liability, even upon residence in the town for a period of less than 12 months, was to be followed (Mordekhai, loc. cit.), and in various places other periods were prescribed (see, e.g., takkanot of the Saragossa community, 1331, in Dinur, Golah, 2, pt. 2 (19662), 345f.; Resp. Rashba, vol. 3, no. 397; see also Sh. Ar., ḤM 163:2; for further particulars, see Massa Melekh, pt. 1).
SITUATION OF PROPERTY
A property tax was regarded as payable at the place where the property was situated regardless of the owner's place of residence (Resp. Rashba, vol. 5, 178; Resp. Ritba, no. 157). This principle was deduced from the talmudic rule that a person owning property (a haẓer) in a town of which he is not a resident must contribute toward the costs of the town's water supply (Maharam of Rothenburg, quoted in Mordekhai, BB no. 475, on the authority of Tosef., BM 11:18). Meir of Rothenburg's reasoning in this matter is interesting. Starting from the mishnaic halakhah that "the [upkeep of the] water channel, the city wall, and the towers thereof and all the city's needs… were provided from the residue of the shekel-chamber" (i.e., from the money of all Israel; Shek. 4:2), he poses the question, "and why shall the city not be built by the Jerusalemites themselves, on their own?" His answer is "because no tribal division was made of Jerusalem and it is a dwelling place for all the house of Israel, therefore the funds come from the residue of the shekel-chamber, contributed by all Israel" (ibid.).
PLACE OF BUSINESS TRANSACTION
Tax on profits derived from a business transaction was likewise held to be payable at the place where the business was transacted and the profit made (Resp. Rashba, vol. 5, no. 263), for the reason of dina demalkhuta dina, since according to the general law of the land the king may "decree that no person shall carry on business in his country unless he pay so-and-so much" (Resp. Rashba, vol. 3, no. 440; vol. 1, no. 664; vol. 5, nos. 263, 286); even talmudic law entitled the residents of a town to call upon a person not to carry on his business there "in order not to diminish their profit" unless he paid them tax on his profits, and his refusal to do so gave the townspeople authority to restrain him from carrying on business in their community (Resp. Rashba, vol. 5, no. 270; see also Resp. Ritba, no. 157). The community was at all events held to be entitled to enact a takkanah that anyone carrying on business in their town should pay them tax on this, since "on this matter all communities have rules and takkanot not derived from talmudic law" (Resp. Rashba, vol. 3, no. 397). Moreover, even people coming to a particular town in circumstances of
, for instance when fleeing from the enemy, with the intention of returning to their own town once the danger had passed, could be liable to contribute toward the taxes of that town after they had sojourned there for more than 12 months and transacted business like the townspeople, although perhaps not at the same rate as the permanent residents of the town (Binyamin Ze'ev, no. 293, with detailed discussion and quotation of different opinions; for further particulars, see Massa Melekh, 1:2, 1–2).
It was held to be clear that a person who was not resident in the town where he transacted business could only be taxed by that community on business transacted locally and not on business transacted in the town of his residence or on property he owned there (Resp. Rashba, vol. 3, no. 440). Furthermore, even the community where he lived could not tax him on business transacted in another community, "for if this be permitted an injustice will be done in that he is made to pay twice" (ibid.), and it was an important principle that "the same asset cannot be taxed in two different places" (Resp. Rashba, vol. 5, no. 270). In one instance the leaders of a certain community sought to enact that a resident of the local community was to be taxed also on his property situated in the area of another community because "the community has authority to make enactments and rules so that no one shall escape liability." Notwithstanding the right of a community to make enactments in tax matters even if they were contrary to a rule of the halakhah, Solomon b. Abraham Adret rejected the validity of this takkanah because it was "nothing less than robbery and it is not possible to contract out of the laws of robbery… for the community has no right to rob an individual of his money and take it for itself" (Resp. Rashba, vol. 5, no. 178). This decision of principle led to the enactment, in certain communities, of takkanot aimed at one and the same
time at avoiding double taxation while minimizing, as far as possible, loss of tax income to the community in which the taxpayer resided. Thus the takkanah of a certain community rendered local residents liable for tax even on their property situated elsewhere, but as they were allowed first to deduct from their tax assessment the tax payable to the other community and the balance went to the local community, the takkanah apparently brought little benefit to the local community (Resp. Rashba, vol. 5, no. 282, also no. 178). This distinction between property situated at the taxpayer's place of residence and property situated elsewhere naturally also influenced the laws concerning the declaration of assets for purposes of tax payment. Thus it was laid down that a taxpayer owning property in another country where he also had a creditor was to deduct the debt in question from the property declaration he submitted to the foreign country and not from the declaration he submitted to the authorities at his place of residence (Resp. Rashba, vol. 1, no. 1074).
The objection in principle to double taxation was apparently not always generally accepted in the Jewish community in Germany. In the 14th century it was stated: "some hold that money which is retained by a person outside the town of his residence… is tax exempt… and others say that a person who has money outside his town, even abroad, must pay tax on all his money, and must also pay tax in the other place on the same money, even if the money has never come into his hands, and this is the custom of the majority of the people" (Menahem of Merseburg, quoted in Resp. Maharyw, no. 133). This was still the case in the 15th century: "It is the custom in all these countries that taxes and impositions are payable also on property that has always remained outside the country, and I am accustomed to dealing accordingly" (ibid.).
The halakhic scholars were much occupied with the question of whether liability for a tax obligation accrued on the date when the basis for its existence came into being or on the date when the tax payment became due for collection. The difference related mainly to two events of common occurrence in daily life: firstly, when a resident left or joined a community after imposition but before collection of the tax; secondly, when the taxpayer's financial position changed between the time of imposition of the tax and the time of its collection.
LEAVING OR JOINING THE COMMUNITY
Leaving the Community
A minority opinion held a person to be exempt from paying tax to the community which he left after the imposition but before the collection of such a tax (R. Tam, quoted in Mordekhai, BB nos. 475–476 and in Resp. Maharik, no. 2; see also Massa Melekh, 1:2; 3:2). However, the majority of the posekim disputed this view: "It seems to me to be as a law of the Torah that when the king has called for a tax… everything that one possesses becomes charged in the king's favor, and, even if one should run away before collection of the tax, everything is already so charged – for the law of the land is law and even the measure that is within the jar becomes charged in favor of the karga" (Isaac the Elder, quoted in Mordekhai, BB no. 476 and in Teshuvot Maimuniyyot, Gezelah, no. 9; Judah of Paris, quoted in Mordekhai, BB no. 659); similarly, "the geonim of France decided that when a man leaves his city, he must pay the tax imposed on him" and, in any event, "such is the custom in all the communities that a person cannot, upon leaving the city, gain exemption from a tax for which he has already become liable" (see Mordekhai, BB nos. 656 and 476).
This question was also disputed in Spain in the community of Solomon b. Abraham Adret, and there the matter was decided in accordance with the above-mentioned principle, after "they investigated and inquired from other communities and ascertained from all the communities and their leaders that they follow the opinion of those who exempt persons who come into the community [after imposition of the tax] and hold liable those who leave the community; since then the dispute has become resolved and in accordance with this we apply the law in all the communities in our area" (Resp. Rashba, vol. 5, no. 179). In other places takkanot were enacted to the express effect that anyone intending to leave the city had first to pay all the taxes for which liability had already accrued (ibid., vol. 3, no. 406; see also vol. 3, no. 405 and vol. 4, no. 260) and the halakhah was thus decided in all later periods: "The law obliges him to pay in full, on all his property, the taxes that have already been imposed, along with all the expenses involved, since he has already become liable for them as one of the taxpayers and he cannot rid himself of them by departing from the city" (Resp. Ritba, no. 157). A similar decision was given by Joseph Colon in Italy in the 15th century: "The prevailing halakhah among the Jewish people is that those who run away after imposition of a tax are not thereby exempt from paying their share of the tax" (Resp. Maharik, no. 2); moreover, "anyone escaping from the tax so as not to contribute along with his neighbor will not in the long run, if he returns to the country, derive any reward from his action" (Leket Yosher, OḤ, p. 139; see also Sh. Ar., ḤM 163:2). Since a person leaving a city was liable for the payment of his share of the tax, it was held, in a certain case where the authorities refunded part of the tax collected to residents of the community that such person was also entitled to claim his share of the amount refunded by the authorities (Resp. Rashba, vol. 3, no. 405).
In the German community the scope of tax liability of a departing resident was even extended. It was laid down that the tax liability existed not only if the amount payable had been finally determined at the time of the resident's departure, but it sufficed if it had been known that a tax was going to be imposed, even though the amount had not yet been settled between the community and the authorities (Resp. Ḥayyim Or Zaru'a, no. 80). In the 15th century the matter was more precisely defined: "A person leaving the city or the country to settle in another country must share equally with the residents of his former place of domicile the burden of any new tax imposed on them within 30 days of his departure" (Terumat ha-Deshen, Resp. no. 342); this was because it had to be
assumed that the tax had been "under preparation" for some time prior to its imposition, at which time the departing resident was included in the reckoning, and also that the tax was under discussion in the community for some time prior to its imposition; therefore to exempt from such a tax any person leaving the city a few days before the imposition of the tax would amount to encouraging many to evade taxes by leaving the city and returning there in due course (ibid.; see also Rema, ḤM 163:3; Massa Melekh, 1:2, 3–4).
Joining the Community
The natural corollary of this rule was to exempt a person from liability for a tax imposed before he had joined the community even though the tax fell due for collection after his arrival, "since it is not possible to burn the candle at both ends by holding newcomers liable at the time when the tax is collected and departing residents liable at the time when the tax obligation is created" (Resp. Rashba, vol. 5, no. 179). This was also the custom followed in various other communities ("the custom of the community in Crete is not to reduce the tax for the departing resident nor to exact it from the newcomer," quoted in Mordekhai, BB no. 656). It was further decided that a community could not demand that a newcomer contribute toward the payment of any particular tax imposed for a reason clearly connected with an event preceding his arrival – as in the case of a tax imposed by one authority because the community had made a similar tax payment before to another authority, at a time when the newcomer was not yet a resident of the community (Resp. Rashba, vol. 4, no. 260).
Retroactive Tax Liability
The majority of the halakhic scholars held that the imposition of retroactive tax liability – that is imposition of liability on a person not resident in the community at the time of creation of the underlying tax obligation – -was invalid even though it was sanctioned by custom or express takkanah. In a certain case it was held that a tax imposed by the community for the purpose of repaying an existing loan could not be exacted from a person who came to live in that community after the loan had been taken, even though he came there before the imposition of the tax: "for why should he repay that which he has not borrowed and how shall he restore that which he has not himself taken ['robbed']?" (Rashba, quoted in Resp. Ribash, no. 477). Moreover, this principle could not be set aside even by an express communal enactment, since "the community cannot make any law or takkanah to the detriment of an individual member and contrary to the accepted law, except with the latter's consent, because the community cannot stipulate to 'rob' others" (Ribash, ibid.; see also Resp. Rashba, vol. 3, no. 412). On the other hand, the German scholars regarded as valid "a takkanah that anyone coming to live with us in the city within a given year shall pay retroactively the tax paid by the others at the beginning of that year" (Resp. Ḥayyim Or Zaru'a, no. 226; in this particular case the individual concerned was exempted because he came to live not in the city itself but in a nearby village; cf. however Resp. Rashba, vol. 4, no. 260 where the validity of an express takkanah of the type mentioned above was apparently recognized in certain cases).
CHANGE IN THE TAXPAYERS' FINANCIAL POSITION
In principle, the date of creation of the underlying tax obligation was recognized as the crucial time for the purpose of determining the measure of individual liability for the tax. Hence the taxpayer had to be assessed according to his financial position at that time, regardless of any change in his financial position at the time of collection of the tax. The halakhic scholars justified this rule by likening the residents of the community to partners, who remain liable for repayment of the debt according to the rate of individual participation in the original obligation and not according to their respective financial positions at the time of repayment. However, while the community had no authority to determine by takkanah that the time of the collection of the tax and not the time of its imposition was to be deemed the crucial date for purposes of the essential liability for the tax obligation, it was held that so far as the measure of individual contribution toward the tax was concerned the community was entitled to enact by takkanah that the individual taxpayer be assessed according to his financial position at the time of collection, and this was the practice followed (Rashba, quoted in Resp. Ribash, no. 477). This takkanah was explained on the basis of the difference between the rules of private law concerning a loan taken by individual partners and the rules of public law concerning a loan taken by the community: "for the community that borrows for communal purposes is not like those who borrow for themselves personally, but it borrows for the community chest" (tevat hakahal; for particulars of this concept, see Resp. Rashba, vol. 3, nos. 400, 411; vol. 4, no. 309 and other references to it in this article), "and this debt it has to repay from whatever is available in the chest at the time of payment; such is the custom all over, and neither the poor who have become rich nor the rich who have become poor… pay except according to their means at the time of payment; this is also our practice and in any event it is impossible to do otherwise" (Resp. Rashba, vol. 3, no. 412; for particulars of this development from private to public law, see Public Authority; Takkanot ha-Kahal). However, it was pointed out that this explanation lacked validity in the case of a person who was not a resident of the city at the time when the loan was taken, since he could in no way be said to have borrowed "for the community chest" (Rashba and Ribash, loc. cit.).
Other scholars determined the crucial date for purposes of tax liability according to the substantive nature of the tax in question. Thus, in the case of a tax of the kind that was regularly imposed from year to year by the authorities, it was held that a person coming to live in the community in the middle of the tax year should be liable for payment of a share pro rata to the remainder of the tax period, since for the duration of that period he would benefit on account of the tax imposed; hence there was all the more reason why a resident who became
rich in the course of the tax period had to contribute in accordance with his current means. However, in the case of a nonrecurring tax only those who were resident in the city at the time it was imposed had to contribute (Resp. Rosh 6: 12; see also Rema, ḤM 163:3).
Tax relief on a personal basis is recognized in Jewish law, sometimes for financial reasons and sometimes for social or demographic reasons.
PERSONS OF LIMITED MEANS
It was held that the poor had no obligation whatsoever to pay tax (Resp. Rosh, 6:4, 12), neither on their income from business transactions nor in the form of a poll tax (see takkanot of the Saragossa community in Dinur, Golah, 2, pt. 2 (19662), 366f.). Elsewhere it was laid down that widows, unmarried orphans, and the disabled were not to be taxed unless their property exceeded a certain amount, and then on the excess only (Takkanot Castile (Finkelstein, bibl. p. 371)). A 15th-century German takkanah exempted from tax all persons who owned less than a certain amount, but rendered those who owned more than the specified amount liable for tax on all their property (Terumat ha-Deshen, Resp. no. 342). In 13th-century Germany it had been the practice to exempt orphans until their majority and marriage (Or Zaru'a, quoted in Terumat ha-Deshen, loc. cit.), but in the time of Israel Isserlein orphans also were taxed in accordance with their financial means, on account of the increased tax burden and because tax payment was a matter of safeguarding the security of the community, an obligation regarded as devolving on orphans also (ibid.); however, it was laid down that orphans were exempt from the duty of contributing toward the building of a synagogue (Rema, ḤM 163:4).
In cases where persons of limited means were held liable for tax, the communal leaders and halakhic scholars sought legal ways to ease their burden (see, e.g., Resp. Rashba, vol. 5, no. 220). An interesting illustration of this can be found in the takkanot of the Huesca community of 1340. These prescribed a detailed and onerous list of diverse taxes, apparently aimed at financing communal services as well as raising the amount levied by the crown. The list included poll tax; property tax on houses, vineyards, fields, and gardens; a business and profits tax on wine and various other commodities; and taxes on leases and loans, on gold and silver jewelry, expensive garments, and the like. At the same time, "50 Jews who do not today own property to the value of 50 solidos" were exempted from the poll tax; also exempted were "those who study day and night and have no other occupation" (Dinur, loc. cit., pp. 349–53, and see below with reference to exemptions granted to scholars). On the other hand, the scholars were opposed to exempting a person from tax liability on the grounds of alleged straitened financial circumstances when in fact there was no more at stake than the interests of a man of means under whose patronage such a person was working. Thus Isserlein mentions that in Germany in the 15th century "some of the ba'alei battim ['householders'] have to some extent been forcing the custom of having their servants made exempt even though they have money on which they earn, because they eat at the table of the ba'alei battim." Criticizing this custom, he declared "that it ought not to be followed" (Terumat ha-Deshen, Resp. no. 342; for further particulars, see Massa Melekh, 4:4; as regards tax liability and exemption of "an idle person transacting no business in the city," see Tur and Sh. Ar., ḤM 163:6 and standard commentaries; Massa Melekh, 1:1, 4; this case was one that had become of little practical importance, "to be in the position of an idler is something that is not so common – I have skimmed over it" (loc. cit.)).
ENCOURAGING SETTLEMENT IN EREẒ ISRAEL
In Germany in the 12th century it was decided that a person remained liable for a tax imposed before he left his place of residence, even though he intended to settle in Ereẓ Israel, since "the upholding of life (pikku'aḥ nefesh) is a more important mitzvah than settling in Ereẓ Israel… and the tax for which he is liable should not be imposed on the public for the sake of the mitzvah of settling in Ereẓ Israel" (quoted in Mordekhai, BB no. 656). It is possible that in this case the tax was required in circumstances of special urgency. On the other hand, it is mentioned that in the Turkish countries in the 16th century – the period following the expulsion from Spain and the mass immigration to and consolidation of the Jewish settlement in Ereẓ Israel – it had been the fixed custom for many years in the city that "anyone migrating to Israel to take up residence there had his property exempted from all kinds of taxes, even if it was left behind in that city" (quoted in Paḥad Yiẓḥak, S.V. Missim zeh Yammim). In one case the residents of the city sought to abrogate the custom in question by an express takkanah, but it was decided that they had no authority to do so "especially because by enacting such a takkanah they would deter the public from fulfilling the mitzvah of living in Ereẓ Israel" (Paḥad Yiẓḥak, loc. cit.; Massa Melekh, 1:2:3, 4; 5:2, 6; see also Massa Ḥayyim Missim ve-Aroniyyot, no. 2).
Another kind of tax exemption was that granted to "a person who has 12 children" (quoted in Paḥad Yiẓḥak, S.V. Missim, Mi she-Hayu Lo). In a certain case in Italy it was decided that the father of such a large family was to be entirely exempted from tax payment and that the tax collected from him had to be returned, "since this is not something decreed by the king contrary to law, but it is the law of the land" (ibid.). This exemption apparently had its roots in the general law of taxation in Italy.
TALMIDEI ḤAKHAMIM (HALAKHIC SCHOLARS)
The circumstances of a scholar's immunity from taxation, based on the talmudic halakhah (see above), remained a subject of much discussion in post-talmudic times. As in talmudic times, there continued to be a measure of reciprocity on this subject between Jewish law and the surrounding legal systems. Influenced by Roman law, tax immunity was customary in the case of scholars and the Catholic clergy and such immunity was
also extended in the Muslim countries, although in a more restricted manner (see Baron, Social2, 5 (1957), 76; idem, Community, 2 (1942), 14f., 274; cf. Tashbeẓ 3:254).
In the geonic period it was laid down that rabbis were to be exempted from taxes imposed on the community by the king and his ministers (Zikkaron la-Rishonim … 1, pt. 4 (1887), ed. Ḥarkavy, no. 537), an exemption which apparently extended to all kinds of taxes. Starting from the tenth century, some of the scholars greatly reduced the scope of this exemption in holding that it should apply only in the case of an inclusive tax imposed on the community as a whole; a tax imposed on an individual basis was to be borne by halakhic scholars also and the community had no obligation to pay for them (R. Hananel, quoted in Nov. Ramban, BB 8a; Beit Yosef, ḤM 163:11). Notwithstanding his earlier ruling, which ran counter to the view prevailing in his day that a scholar was forbidden to seek sustenance from the public in order to devote himself to study (as this amounted to a profanation of God's Name), Maimonides decided that in the matter of taxation, "the Torah has exempted all talmidei ḥakhamim from all governmental dues, such as a levy, arnona, or special personal tax… which must be paid for them by the community, including [a tax for] the building of a wall and the like; and even if the talmid ḥakham be a man of great financial means he is not to be held liable for any of these" (Comm. Avot 4:5). To exact a tax payment from a talmid ḥakham would amount to "robbing" him (idem, Resp. (ed. Blau) no. 325; cf.Yad, Talmud Torah, 6:10). Many of the scholars followed the opinion of R. Hananel (Nov. Ramban, Beit ha-Beḥirah and Nov. Ran, BB 8a), but others accepted Maimonides' view (Yad Ramah, BB 8a; Sefer ha-Ḥinnukh, no. 222), as did the majority of the posekim (Resp. Rosh 15:7–8; Tur and Sh. Ar., YD 243:2–3; ḤM 163:4–6; R. Jeroham, Sefer Meisharim 32:2). Asher b. Jehiel averred: "In these generations I see the need, a fortiori, to apply this rule; in the time of the talmudic sages, talmidei ḥakhamim – of whom there were thousands – were exempt from various burdens and taxes; all the more reason in these generations – when it is hard to find one in a city and two in the same family – to exempt them from such burdens" (Resp. Rosh, loc. cit.). This was indeed the practice followed and even where the most onerous tax burden was imposed, "those who study day and night and have no other occupation" (Takkanot Huesca of 1340, in Dinur, loc. cit. p. 349) were exempted even from poll tax. In the Castilian takkanot of 1432 the widows of certain scholars and communal leaders were also exempted from tax, a concession partly based on the rule that "the wife of a ḥaver is as a ḥaver himself" (Av. Zar. 39a), and because the widow of a ḥaver remained entitled to some of the rights formerly enjoyed by her husband (Finkelstein, see bibl. p. 369).
"The Torah is his Occupation" (Torato Omanuto)
In the Talmud the term rabbanan, in the context of tax exemption, is employed without qualification, but the geonim established the requirement of "torato omanuto" (quoted in Terumat ha-Deshen, Resp. no. 342). Differing opinions were expressed on the interpretation of this phrase. One view was that it meant, "they fulfill ve-hagita bo yomam va-laylah with all their strength and ability, and do not leave off studying the Torah except to fulfill a mitzvah, to seek a livelihood and sustenance for themselves and their families" (Responsum of Meir ha-Levi in: Sefer Kol Bo, 108b; see also Naḥmanides and Piskei ha-Rosh, BB 1:26; Terumat ha-Deshen, Resp. no. 341; Resp. Israel of Bruna, no. 102). Other scholars held it to be a precondition of the exemption of a talmid ḥakham that "he is not occupied at all with worldly needs" (Beit ha-Beḥirah, BB 8a; Sefer Ḥasidim, no. 293; see also takkanot Huesca, above).
The Role of Custom
It was decided that although the law concerning a talmid ḥakham was no longer practiced with regard to certain matters (e.g., the special fine imposed on a person who shamed him), it still remained in effect as regards his exemption from taxation (Terumat ha-Deshen, Resp. no. 341). The exemption was taken to apply not only to a scholar holding office as a rabbi or head of a yeshivah, but also, as appeared from the talmudic source from which the exemption was derived, to scholars who "'trudge from city to city and from country to country'… those are scholars who go from yeshivah to yeshivah, because it is not customary for one who is qualified to be at the head to trudge from city to city" (Terumat ha-Deshen, Resp. no. 342; Resp. Maharit, vol. 2, ḤM no. 59 et al.). However, by the 15th century there were places where no scholars except those serving as the heads of yeshivot were exempt from taxation (Terumat ha-Deshen, loc. cit.) and, in consequence, the halakhah was decided that "there are places where it has been the practice to exempt talmidei ḥakhamim from taxation and other places where the practice has been not to exempt them" (Sh. Ar., YD 243:2).
Cantor of the Synagogue
Differences of opinion were also expressed concerning the position of a synagogue cantor, who usually also served as teacher of the children and therefore could be regarded, to some extent, as a scholar. Isaac b. Sheshet Perfet held that he was exempt from tax but other scholars disagreed (Resp. Ribash, nos. 475–7); Isserlein testifies that "in no community have I found them to hold their cantor liable for tax, even if he should have some means, and this is a worthy and proper custom" (Terumat ha-Deshen, loc. cit; see also Rema, ḤM 163:5).
In the State of Israel
The tax liability of a talmid ḥakham has been discussed under existing circumstances in the State of Israel. It was held that since rabbis and heads of yeshivot receive full salaries and a substantial proportion of the taxes of the state went toward the provision of various services to which talmidei ḥakhamim also had to contribute, and since tax exemption was a matter of custom, it was necessary that "the custom be upheld to exact tax, at the appointed rate, from rabbis, heads of yeshivot, and talmidei ḥakhamim who earn salaries" (see K.P. Tekhorsh, bibl., p. 279. For further
particulars concerning taxation of scholars, see Massa Melekh, 4:1–3; 5:2, 5).
GOVERNMENTAL OR COMMUNAL EXEMPTION
A common problem in post-talmudic Jewish life was that which arose when individuals, generally those who were influential in governmental circles, gained for themselves a personal tax immunity from the authorities. The halakhic scholars and communal leaders fought against this phenomenon although German and Spanish Jewry differed in their approaches to the matter.
Governmental Exemption in Germany
As early as the 11th century a German takkanah decreed, on pain of ban, that "no local male or female resident shall be entitled to secure his/her exemption from the public burden" (Takkanot Rashi, quoted in Resp. Maharam of Rothenburg, ed. Berlin, no. 866). A 13th-century takkanah laid down that "no person shall secure exemption from the tax because he moves in the royal court" (Finkelstein, bibl., p. 226). In one of his responsa, R. Simḥah of Speyer – after discussing the tannaitic halakhah concerning a customs waiver granted to partners (Tosef., BM 8:25–26) – laid down that as far as the community was concerned any governmental exemption had to be shared equally between all its members (as was the custom followed by his uncle, Kalonymus b. Meir), since "all Israelites are sureties for each other to accept the burden of their exile and will share with each other in their comfort and redemption" (quoted in Or Zaru'ah, BK no. 460, and in Resp. Maharam of Rothenburg, ed. Prague, no. 932). Similarly, the case was cited of "R. Eliakim, who was close to the royal court and shared with the community any exemption given him by the king" (Resp. Maharam of Rothenburg, ed. Prague, no. 930).
Meir of Rothenburg strongly criticized those who secured any form of tax relief without sharing the benefit of this with the community. In a case where a person acted on his own initiative and came to an arrangement with the authorities "to pay tax independently [of the community]" he laid down that all members of the community had to be regarded as partners for all tax purposes, and a partner could not enjoy personally a benefit due to the whole partnership without the approval of his other partners even if this was not the law of the Torah, "since it has been the custom in the whole kingdom for them to be partners, they are not entitled to act separately, for if everyone were to do so it would lead to evil consequences because everyone would throw off the burden from himself and impose it on his neighbor and endless quarrels shall come about… therefore it is necessary to protest against Reuben who saw fit to act separately" (Resp. Maharam of Rothenburg, ed. Lemberg, no. 108). In a similar case he added that the consent of the authorities was of no effect because "it is not dina de-malkhuta but gezelah de-malkhuta, like a tax collector exacting a tax in an unspecified amount… since it is the custom in the city for all the Jews to participate in the tax"; he held that the person who made the separate arrangement was to return to the authorities and explain that it was the law of the Jews not to act separately but to carry the burden jointly, that all his fellow-Jews were quarreling with him on this account, and that he no longer wished to pay tax independently. In R. Meir's opinion it was necessary to take a more stringent approach in such matters, even if there was no support for this in the Talmud (Resp. Maharam of Rothenburg, ed. Cremona, no. 222; idem, ed. Prague, no. 915). At the same time he ruled that the prohibition was only to apply when the individual was granted an exemption prior to the final determination of the amount of the tax imposed on the community, for in this case it could be assumed that the reduction granted to the individual would have to be made up by the community in general; if, however, an individual exemption was granted after the final determination and it was known that this fact had in no way increased the amount of the tax for others, the individual concerned could not be required to participate with the others (Resp., ed. Prague, no. 134; ed. Lemberg, no. 358; Mordekhai, BK no. 177; Teshuvot Maimuniyyot, Kinyan, no. 1). This distinction of principle was accepted, with slight modifications, by the majority of the posekim (Resp. Ḥayyim Or Zaru'a, nos. 80 and 206; Resp. Ribash, no. 132; Resp. Maharil, no. 71; Resp. Maharyw, no. 38; Terumat ha-Deshen, Resp. no. 341 and ibid., Pesakim u-Khetavim, no. 144).
Governmental Exemption in Spain
The Spanish halakhic scholars apparently took a less stringent view of personal exemption from taxation. In one case Solomon b. Abraham Adret dealt with the scope of a tax exemption granted to an individual by the authorities and concluded that it did not extend to taxes connected with the protection and security of the Jewish public; on the question of individual tax exemption itself, he stated: "I do not put myself forward in the matter – this has been and remains a disputed topic – until the court asks for my opinion" (Resp. Rashba, vol. 5, no. 183; vol. 1, no. 644; but cf. vol. 5, nos. 279, 281). A 14th-century takkanah of the Alcolea community ruled that a ban of one year could be imposed on any person seeking from the authorities exemption or relief from taxation, and this was also applicable to a person availing himself of such a privilege which had been arranged by a friend, "even without his knowledge" (Resp. Ribash, no. 460; see also Rema, ḤM 163:6; for further particulars, see Massa Melekh, pt. 2; 4:8).
Exemption by the Community
Clearly, the reasons for objecting to a personal tax privilege granted by the authorities had no relevance in the case of a personal exemption granted by the community itself. The scope of this kind of exemption, however, was discussed in a number of instances (see, e.g., Resp. Rashba, vol. 1, no. 967; vol. 5, no. 281; Resp. Rosh, 6: 19). In these cases the problem of the legal validity attaching to the act of waiver arose and it was ruled that the matter depended on local tax usage (Resp. Rashba, vol. 5, no. 180). It was decided that since a waiver of this kind was effected by the public, it had to be regarded as fully valid: "all matters agreed
to by the community or its duly appointed representatives require no kinyan or deed, but the statements of the former are regarded as written and delivered" (Resp. Rosh, 6:21; see also Rema, ḤM 163:6;
; for further particulars, see Massa Melekh, 5:1, 4–8).
The halakhic scholars were greatly preoccupied with the problem of the method of assessing the taxpayers' assets, which formed the subject matter of many communal takkanot. Two principal methods were followed: the first based on a declaration of assets submitted by the taxpayer, called a hoda'ah, and the second on an evaluation of assets by communal assessors or trustees, which was called a pesak, the assessors being referred to as posekim (for a comparison, see, e.g., Resp. Rashba, vol. 3, no. 411, and Resp. Ribash, no. 457). These two methods had much in common and other variations were also in use (Ribash, loc. cit.).
DECLARATION BY THE TAXPAYER (HODA'AH)
Detailed descriptions of this method of assessment are to be found in a number of responsa. In Spain a date was fixed for submission of the declaration to the trustees (ne'emanim; for particulars of this office see below), as well as a later date for submission of a supplementary declaration (Resp. Ritba, no. 114). In another Spanish responsum it is indicated that the community used to appoint 12 persons to determine procedure and supervise submission of the declaration. Among their tasks was determining the date, place, and person to whom the declaration had to be submitted, and in what language it should be made. These 12 persons were given authority to make occasional changes in the details concerning completion and submission of the declaration, but not to change the essential method itself: "they may not change from the method of the hoda'ah to that of the pesak or to any other method" (Resp. Ribash, no. 457, also nos. 458, 459). The taxpayers (pore'ei hamas) were required to set out in the declaration full details of their property, business transactions, debts, pledges, and the like (Resp. Rashba, vol. 3, nos. 383, 396, 399, 408; Resp. Ribash, loc. cit.).
It was required that a reasonable and uniform period be prescribed for completion and submission of the declaration, "since some may arrange this in a day and some need ten days or more" (Resp. Ribash, nos. 458 and 459). The taxpayer would bring his declaration form (pinkas hoda'ato) to the trustees for them to examine its contents in his presence and then to record the total amount declared in the communal register (pinkas ha-kahal); they then returned to the taxpayer "a token of his declaration" (mazkeret hoda'ato; Resp. Rashba, vol. 1, no. 1074; vol. 3, no. 383). The amount that each individual had to contribute toward the tax could be ascertained from the communal register; the names of those who did not have to pay were followed by a blank space and no mention of any amount (Resp. Rosh, 5:9; 6:4). From time to time a new declaration of property had to be submitted and, in case of increase, tax had to be paid on the increment (Resp. Rashba, vol. 3, no. 407); in the event that there was a large decrease as compared with the amount previously declared, the trustees would inquire into the matter, which often led to acrimonious dispute (Resp. Ritba, no. 114).
EVALUATION OF ASSETS BY TAX ASSESSORS
There is early testimony that the community appointed trustees for the purpose of faithfully assessing each member of the community, so as to avoid complaints of an unjust apportionment of the tax (Yom Tov Elem, quoted in Resp. Maharam of Rothenburg, ed Lemberg, no. 423). These had to be "knowledgeable in the tax" so as to assess each individual according to his assets (Teshuvot Ge'onei Mizraḥ u-Ma'arav, no. 205). Sometimes the city elders and judges who were knowledgeable in all local transactions would prepare a "deed of comparison" (shetar hashvayah) so as to "compare between them and see how much tax or charity each would have to pay and thereby avoid dispute among the taxpayers" (Sefer ha-Shetarot of Judah b. Barzillai, ed. by S.J. Halberstam, p. 137f.). After assessment of the tax a shetar pesika would be written to the effect that the communal leaders had determined that X was to pay so-and-so much tax each year and that no one, not even the court or the communal leaders, should have the authority to vary such a determination (ibid., p. 75).
In various responsa of a later period details are given of the functions of these assessors (posekim) and of the pinkas ha-pesika they kept (see, e.g, Resp. Rashba, vol. 5, no. 279, 281). The assessors recorded the assessed amount of each taxpayer – based on their estimate – in the communal register (pinkas ha-kahal; Resp. Rosh, 6:4). Without doubt this assessment too was based on various particulars available to the assessors, although at times they erred grossly in their estimates (Resp. Rosh, 6:4) and on occasion their assessment was followed by protracted argument with the taxpayer which occasionally ended in a very substantial correction of the original assessment (e.g., from 800 zehuvim to 150: Resp. Maharyw, no. 124). When a person was assessed as having no taxable assets, a blank space was left beside his name in the communal register (Resp. Rosh, 6:4).
The number of tax assessors (called trustees and by several other names) varied from place to place (the responsa collections of various scholars mention the figure of three, four, ten, and so on) and they were generally chosen by lot from a number of candidates (Resp. Rashba, vol. 3, no. 417). They were required to have expert knowledge of the tax system and to perform their duties faithfully: "and it is the custom in the communities that they appoint the shrewd… they examine minutely to impose justly on everyone, according to the efforts and activities of each, and they must judge others as they would themselves as it has been said (Shab. 31a) 'do not unto your neighbor that which is hateful to you'" (Joseph Tov Elem, quoted in Resp. Maharam of Rothenburg, ed. Prague, no. 941). Those who assessed the tax liability of each according to evaluation of his assets were warned "to guard against favoring one who is liked or dealing onerously with
one who is disliked, in order not to be disqualified from testimony or the oath" (Or Zaru'a, quoted in Resp. Maharashdam, ḤM 442).
Generally, such an appointment was looked upon as an honorable one: "all families in the city would like one of their members to be appointed, for the honor of the family alone" (Resp. Rashba, vol. 3, no. 399), but there is no doubt that such an appointment also served personal economic interests. In a case where the wealthy families insisted that their interests be represented by two of the five appointees, Israel Isserlein saw fit to accede to their request since the other three would still compose an impartial majority; also, letting the rich have their representatives would show them that their contentions were being taken into account and they would therefore refrain from strictures and appeals; this was possible, however, only if the two men chosen by the rich were "men of truth, certainly not those reputed to be swindlers and cunning men" (Terumat ha-Deshen, Resp. no. 342). Sometimes a candidate for election would give notice of his unwillingness to accept the position, and in a case where such a person was nevertheless elected, Solomon b. Abraham Adret held that "his withdrawal from the assent is of no effect, and he is obliged to take up his trusteeship since the community has seen fit to disregard his wishes" (Resp. Rashba, vol. 3, no. 417; see also vol. 4, no. 309). At times an appointee sought to be released from his position after having served for a period (Resp. Ribash, no. 461).
This dual attitude toward appointment as a trustee found legal recognition in the determination that the trustee's liability for any damage he himself caused had to be equated with that of a gratuitous bailee and not a bailee for reward (see
; Resp. Rashba, vol. 5, no. 10). Cases of refusal to accept appointment as a trustee are mentioned in particular in circumstances where the central authorities imposed special emergency taxes on the community – e.g., for the purpose of waging war – and the latter found itself unable to bear the burden of the tax and the means employed for its collection (as in the case of the tax imposed in Prague in 1751: see Elon, Ḥerut ha-Perat, pp. 221f.).
In a case where one of the three trustees was unable to read the contents of the declarations, he was nevertheless held to be fit for his position on the ground that the other two could read the contents to him and that they could be trusted to do so without distortion; since the main task of the trustees was to apply the same standards to all, it was held that the trustees who could not read remained as competent as the other two, and sometimes more so, as far as expertise in matters of collection, payment, loans, and the accumulation of other related knowledge was concerned (Resp. Rashba, vol. 3, no. 399). This was an expression of Solomon b. Abraham Adret's general objective of involving all members of the public in communal administration; elsewhere he added: "in many places individuals are not so literate, yet they are appointed along with those who are knowledgeable" (a similar view was taken with regard to signature by the town scribe in place of a witness who could not sign his own name: Resp. Rashba, vol. 2, no. 111; the same held good even for the appointment of a judge from among the residents of a village where "there is no one who knows even one letter" if the man was accepted by the public: ibid., no. 290). The trustees were enjoined to observe total secrecy concerning details which came to their knowledge in the execution of their duties (Avodat Massa, no. 1:2). Apparently this office led to the emergence, in the course of time, of special experts in tax matters. Thus in one of his responsa Asher b. Jehiel mentions that he was asked to give his decision "after consulting with tax specialists" and that he saw fit to do so and to uphold their conclusion (Resp. Rosh, 6:4). This phenomenon is probably to be attributed to the fact that the tax laws were based largely on the various takkanot and customs in this field, an area in which the experts had gradually acquired special knowledge.
In various takkanot provision was made concerning the right or otherwise of the assessors to demand documents from the taxpayer. In one instance it was laid down that the ten trustees were sworn "to act faithfully and truthfully to the best of their knowledge and not to seize the records (kitvei zikhronot) of any individual" unless it was agreed by a majority of the ten "to inquire into the affairs of such an individual and to punish him" (Resp. Rashba, vol. 5, no. 126; vol. 3, no. 411).
Asher b. Jehiel held that in the case of error, even gross error, made by the assessors in the taxpayer's favor – for instance "if they taxed Reuben on 1,000 zehuvim,… and later ascertained that he had 10,000 zehuvim" – the taxpayer was to benefit from the erroneous assessment and did not have to add to it since he had paid according to the estimate and "had divine assistance" (Resp. Rosh, 6:4). Samuel di Medina, the 16th-century scholar of Salonika, found this decision difficult to comprehend but followed it nevertheless, out of high regard for his predecessor (Resp. Maharashdam, ḤM 442). Around 100 years later a different decision was given in Germany in a case where an assessment of property had been made for tax purposes, and on the taxpayer's death two years later "many times this amount was found in his estate" (Resp. Ḥavvot Ya'ir, no. 57). The question that arose was whether to deal with the matter in a manner favoring the assessed party "and say that during the two years in question he had prospered greatly or had an unexpected windfall," or to hold that he had "deceived" for purposes of the assessment and therefore additional tax had to be exacted from him. In his decision Jair Ḥayyim Bacharach reviewed at length the halakhah and contemporary customs concerning tax assessment and laid down that the decision in a matter of this kind had to take into account a number of factors, such as the nature of the business carried on by the assessed (that is, whether or not it allowed for the possibility of such sudden enrichment), his previous conduct in tax matters, and the general position as regards the prevalence of tax fraud and concealment. (The same approach was followed in another case, ibid., no. 58.)
Information under Oath and Ban
In order to ensure the veracity of the taxpayer's declaration, it was customary in many places to impose a ban on a person filing an inaccurate declaration, or to require the taxpayer to take an oath on the truth of his declaration. Solomon b. Abraham Adret decided that in strict law an individual could not be compelled to swear to the truth of his declaration: "as in the case of a debtor pleading a lack of means to pay his creditor, when the court cannot, in law, ban or compel him to take an oath, and instead tells the claimant: 'go seek him out and recover from him'!" However, in the same way as it had been ordinated that a ban could be imposed on a debtor pleading a lack of means (ein li: see
(Civil); Yad, Malveh, 2:2), in this case too "the ban may be imposed without any qualification… so that everyone who has some means shall pay his proportional share to the community chest." Since the geonim had ruled that a debtor pleading a lack of means could be made to take a solemn oath to this effect, "it is possible that in this matter too [i.e., the taxpayer's declaration] the same may be done on the basis of a takkanah" (Resp. Rashba, vol. 3, no. 392).
The practice of swearing such an oath in accordance with various takkanot came to be expressly recognized by Solomon b. Abraham Adret (see, e.g., ibid., no. 408). Asher b. Jehiel was opposed to an individual's swearing an oath of this kind in tax matters, distinguishing between such an oath and that which one partner could require from his fellow partner even in the case of ta'anat shema ("doubtful plea"; see
); he was only prepared to recognize the custom whereby in communal enactments of this kind, "they impose a ban on the whole community to observe them, but do not require an oath from each individual" (Resp. Rosh, 6:13). This ban was imposed in general terms in the presence of all persons above the age of 15 who were called upon to make payment honestly (Resp. Rashba, vol. 5, no. 222). However, Asher b. Jehiel's opinion was not accepted and in the 15th century Isserlein based the community's right to require an individual to swear an oath to the truth of his tax declaration on the premise that the members of a community were comparable to partners and one partner could require an oath from his fellow even on a ta'anat shema (Terumat ha-Deshen, Resp. no. 344 and see below). This was also the decision of Isserles (Rema, ḤM 163:3) and of later posekim (see, e.g., Noda bi-Yhudah, Mahadura Tinyana, ḤM no. 40). Bacharach expressed the opinion that after the conduct of the taxpayer and the general position as regards honesty in tax payment were taken into account, it was in the absolute discretion of the community "to prevent one from taking an oath even if he should wish to do so, and to require an oath, according to their discretion, from one who should wish to do so; and no explanation is called for, provided only that their hearts shall be turned toward heaven" (Resp. Ḥavvot Ya'ir, no. 57 and see particulars cited there of cases in which the oath was taken).
ALTERNATING BETWEEN DIFFERENT TAX METHODS
It was held that where it was customary for the whole community to follow the self-assessment method (i.e., by way of a declaration) an individual had to be refused a request that his liability be assessed by assessors: "impose on me as you see fit, and I shall do as you wish" even if he made his request because "I am afraid I shall not on my own be able to do as required by law." The reason for this was that an individual was not entitled to choose his own method but had to follow the one agreed upon by the public (Resp. Rashba, vol. 3, no. 392). The trustees too were held to have no power "to change from the method of declaration to that of assessment pesak or to any other method" (Resp. Ribash, no. 457); only the community itself could do so (Terumat ha-Deshen, Resp. no. 343, and see below; Rema, ḤM 163:3) and sometimes it exercised this power. This fact is illustrated, for instance, in the extant records of the tax system practiced in the Mantua community from the end of the 16th century until the beginning of the 18th. The tax code of this community, the "order of assessment" (seder ha-ha'arakhah), dating from the end of the 16th century, deals in detail with the various kinds of taxable property and income, and sets out the order of assessment of property and tax by the assessors, the manner of their election, and so on. Yet it appears that from the end of the 18th century this community practiced the casella system – named after the case or box into which the tax payment was deposited – which introduced many changes into the tax collection procedure, mainly a changeover to the method of individual self-assessment (see Simonsohn, bibl. vol. 1, pp. 272–301).
The community, however, was not entitled, when it varied the tax method, to adopt indiscriminately the stringencies of different methods in determining the taxpayer's liability: "so far as concerns the wish of his community to do something that is new and completely unheard of, namely to combine the stringencies of two systems by both assessing and imposing a ban, and then not allowing him any reduction in the assessed amount while obliging him to pay the difference (if he be under-assessed at a time when he himself knows that he owns more than the assessed amount) this is robbery and extortion, and a person is not put to death in two ways… we must not innovate further stringencies and once they have made their assessment they cannot any more impose a ban on him and there is no substance in the statements of those who would insist on combining the stringencies of both systems" (Noda bi-Yhuda, loc. cit.). This is one more illustration of a restriction on the community against departing from the general principles of equity and justice (see above).
TAX METHODS AND SOCIO-ECONOMIC CLASS DISPUTE
To a large extent both the choice of tax method and the desire to change from one to the other were an outcome of communal dispute of a social and economic nature, and it was no easy task for the halakhic scholars to conciliate between the conflicting class interests. Isserlein, who in a certain case saw fit to uphold the demand of the wealthy that two out of the five trustees be their own representatives (see above), gives a further interesting description of the manner in which the actual tax method was determined (Terumat ha-Deshen, Resp. no. 343).
A "heavy tax" had been imposed on the community; for the purpose of its collection, the community prescribed the method of individual self-assessment, by declaration, the latter to be affirmed under oath. A wealthy section of the community (ba'alei kissin) objected to this method and demanded that the assets and tax liability of each be determined by assessors, "as has been the custom for some years." Alternatively, they demanded that even if the declaration method was applied the taxpayer should not be required to detail all particulars of his assets in the declaration: "out of concern for the fact that this might cause them harm in a number of ways"; instead the taxpayer should merely have to specify the general amount at which he assessed his assets and affirm under oath that he had no more. This time Isserlein rejected the demands of the wealthy. As regards the first, he held that the community members had to be regarded as partners and since each partner had the right to require an oath from his fellow partner even on a doubtful plea (because otherwise a partner would permit himself to depart from the truth by reason of his activity on behalf of the partnership business), therefore there certainly existed grounds for the same reasoning in respect of the wealthy members of the community, who were likely to permit themselves an untruthful declaration because they were active on behalf of the community and represented it before the authorities, and because each of them would assume that none of the others submitted a truthful declaration. Furthermore, if assessment were to be made by assessors without the oath of the taxpayer, it would be impossible to ascertain the true state of affairs: "human beings are not prophets who are able to know what the next man has in his money-box… a person may become rich unbeknown to anyone else… and people are likely to conceal their assets so as to avoid being regarded as having reached satiety." So far as the alternative demand was concerned, Isserlein held that it was indeed proper according to talmudic law, but that it had already been laid down by the geonim and later scholars that a person taking any oath was required to give details of the matter sworn to, so as to avoid error or deceit; this was all the more so in tax matters, when "people are in the habit of employing all kinds of stratagems to evade payment." Therefore if the taxpayer were allowed a general oath without providing details, it would open the way to error and abuse: "hence it is necessary to set out in detail and explain clearly all the assets, their quality and substance… and this has been the practice since long ago in all our borders."
It may be noted that this reasoning provided a basis not only for the determination of a method of tax assessment where none had previously existed, but also for the variation of a method of tax collection practiced for some time (this was also the conclusion of Rema, ḤM 163:3. For further particulars of tax assessment methods, see Massa Melekh, 5:2).
The communal fiscal system allowed for the taxpayer to appeal against his assessment to a higher instance, on both the amount and questions of law. In many communities there were special tribunals for this purpose (e.g., in the Mantua community: see Simonsohn, bibl., vol. 1, pp. 283f.) and often appeals of this nature would be aired before the halakhic scholars, who dealt with the matter at issue according to the halakhah and the pertinent customs and takkanot.
PRESUMPTION OF POSSESSION (DIN MUḤZAK) IN FAVOR OF THE COMMUNITY
In this connection a fundamental problem with an important bearing on the relationship between the community and the individual in Jewish law was discussed. A takkanah attributed to R.
*Gershom b. Judah
laid down that a person could not object before the courts in respect of a tax imposed on him, "until he pays what was imposed on him, either in cash or in pledges." This rule was equated with the general rule applicable to all appeals against a judgment, namely that payment is not to be delayed until the appeal is heard (Binyamin Ze'ev, no. 295; cf. Takkanot Medinat Mehrin, no. 214). It was laid down that only in the event that the city elders agreed with the individual that the tax imposed on him was unlawful would the legal hearing have to be disposed of first (takkanah quoted in Resp. Maharik, no. 17 (cf. also nos. 1, 2) and in Binyamin Ze'ev, no. 295). Meir of Rothenburg thought that this presumption in favor of the community had no talmudic basis, but on further consideration he concluded that this was "a custom according with the Law of the Torah." On the basis of the doctrine of dina de-malkhuta dina (BM 73b; and see above), he held that the king was "presumed to be in possession of [muḥzak] the tax [demanded] of each individual" and therefore "also the community wishes to be presumed in possession, to be defendants and not plaintiffs… with regard to the rule that the burden of proof is on the person who seeks to recover from another… for thus it will at all times have the upper hand" (Resp. Maharam of Rothenburg, ed. Prague, nos. 106, 915; ed. Lemberg, no. 371). He also held that his reasoning contributed to the good order of the public, "for if we were to hold otherwise, everyone would reply to the community, saying: 'I am exempt from the law' or 'I have already paid my tax'… everyone would do wrong and think in his heart 'who shall sue me?'… since a shared pot is neither hot nor cold" (see BB 24b). In his opinion this additional substantiation could also be based on various analogies from the talmudic law (idem, ed. Prague, no. 106; Mordekhai, BB no. 552). However, the presumption only operated in the community's favor in case of doubt about the true legal position; if prima facie it appeared that the law was against the community, the individual would not have to comply except after conclusion of the legal hearing: "justice shall not be perverted against the individual for the sake of the public, nor is robbery permissible because it is committed by the public" (Maharam, loc. cit., and cf. BB 100a). Therefore, if the individual pleads, "this is the law of the community and this has been their practice until now," while the community contends otherwise, and the matter is uncertain, "then why should the community be in a stronger position? And the position of the claimants is not
worsened even if they are not many, since they are representative of the community" (Nimmukei Menaḥem of Menahem Merseburg, Din 37).
Solomon b. Abraham Adret reached the same conclusion, except that he emphasized that in law the principle which placed the burden of proof on the claimant was also applicable between the community and the individual; however, "it is an ordinance for the sake of good public order, that it shall not be possible for every person to say, 'I shall not pay until adjucation of my plea that I am not liable,' otherwise everyone shall do so with the result that the tax will never be collected, and only the swindlers shall be encouraged. We here [in Barcelona] have also ruled that any person who denies liability must first make payment before the matter can be adjudicated upon." In such a case it did not suffice for the individual to provide a surety for the amount in dispute (Resp. Rashba, vol. 3, nos. 398 and 406).
PRESUMPTION AND THE RIGHTS OF THE INDIVIDUAL
Later the scholars became concerned that this presumption, which was necessary as an effective deterrent against tax evasion, should not prejudice the rights of the individual in disputes with the community. Thus, for example, it was decided that in a case where there were two differing halakhic opinions, one rendering the individual liable for tax and the other exempting him from it, the law had to be applied in favor of the community which is presumed to be in possession – as is the law in any other case of actual possession (see
of Law, S.V. the plea of kim li; Resp. Maharyw, no. 133). Similarly, it was decided that in a dispute between the individual and the tax trustees concerning the statements made by the former in his deliberations with them, the trustees had to be believed because they were representatives of the community, "and the community is [presumed to be] in possession… and because of this they are believed" (Resp. Maharyw, no. 84). Concern that the operation of the presumption might prejudice the rights of the individual was particularly real because, theoretically, the justification for affording the community a favored status in this respect was capable of being applied in every case of dispute between the community and the individual and not necessarily in tax matters only, as in fact could be deduced from the talmudic sources quoted as an analogy for the presumption (see Terumat ha-Deshen, Resp. no. 341).
LIMITING THE SCOPE OF THE PRESUMPTION
As a way of safeguarding the rights of the "defenseless" individual in disputes with the "powerful" community, the scholars laid down several material reservations, by means of which the presumption that the community was in possession was restricted. First was that the presumption only operated in favor of the community in respect of a tax imposed by the ruling power and "all other payments for governmental purposes" embraced within the rule of dina de-malkhuta dina, so far as "all other public matters and needs" was concerned the presumption did not apply. With a view to safeguarding the interests of the public, it was held to be sufficient if the individual gave a
for the amount in dispute, "so that he shall be the plaintiff and the one in pursuit of justice, and the public not be occasioned loss." It was also laid down that the presumption could not be held to operate in favor of the public with regard to the plea of kim li (see above; Terumat ha-Deshen, loc. cit.). Secondly, since the explanation for the presumption in favor of the community was based on the theory that the king was presumed to be in possession of the tax by virtue of the rule of dina demalkhuta dina (the community being the agent of the king), therefore if the community had already paid the tax to the government and then sought to collect the tax from individual members of the community, it could no longer rely on the operation of the presumptions in its favor, since on making payment to the king it had ceased to be his agent (Nimmukei Menaḥem of Menahem Merseburg, Din. 37). On the basis of this distinction Joseph b. Ezra, the 16th-century scholar from Salonika, concluded: "accordingly we learn at this time, when the communities do not distinguish between the king's taxes and other taxes, that there is no room for presuming in favor of the public unless there is a custom to this effect and such custom is not called into question" (Massa Melekh, pt. 6, 3rd Tenai). Thirdly, if there was still time for it the individual was entitled to have the legal hearing take place prior to the due date of the tax payment and in this event no pledge was to be taken from him (Massa Melekh, pt. 6, 3rd Tenai; see also Terumat ha-Deshen, Resp. no. 341). Fourthly, in the 16th century it was concluded, from the thesis that the community acted as the agent of the government, that in circumstances where it could be assumed that the community made its plea in order to safeguard its own interests and because it acted as the agent of the government, the presumption would not avail the community: "and there is no distinction between the kings' due and other public needs – they [the community] are the ones who claim and seek to cover payment and the burden of proof is theirs." The only difference between the community and the individual, in case of a dispute between them, lay in the fact that the former could demand a pledge from the individual in order to ensure a legal hearing of their dispute (Resp. Menahem da Fano, no. 43; already in R. Gershom's takkanah the matter of taking a pledge was mentioned, although apparently in satisfaction of the debt and not only for the purpose of securing its repayment. For further particulars see Massa Melekh, pt. 6).
The special circumstances which formed the background to the development of the tax law system led to the appearance of takkanot and customs which introduced into this field of the law far-reaching changes that also affected matters of adjudication and the laws of evidence. Apart from the fact that special tax courts, composed of communal leaders adjudicating "in accordance with their own custom" (Resp. Rosh, 7:11; and see below), existed in many places, significant changes were introduced
into the halakhah concerning dayyanim and witnesses even in the courts presided over by the halakhic scholars.
DISQUALIFICATION OF WITNESSES AND JUDGES
Jewish law lays down stringent requirements governing the competency of
, and disqualifies relatives of the litigants as well as other interested parties from acting as witnesses in a suit (Tur and Sh. Ar., ḤM 33 and 37 and standard commentaries). Hence in strict law the testimony of a member of the community was inadmissible in any matter connected with local taxes, since any tax ruling for or against an individual member of the community inevitably affected the tax rate for the rest of the community also. According to talmudic law, a town resident was disqualified from testifying in a matter concerning the property common to the residents in his town, such as the public baths, unless he renounced all benefit from the particular property (BB 43a; Sh. Ar., ḤM 37:18ff.). In post-talmudic times, however, the existing realities of Jewish life made the strict observance of this rule impossible, certainly as regards a number of public matters (see
), particularly the adjudication of tax disputes. As late as the 12th and 13th centuries it was still decided in Germany that the testimony of communal leaders to the effect that a person had made a declaration before them in regard to a tax matter was not to be admitted, "as long as they [the communal leaders] have not paid their share of the tax," in view of their interest in the matter (Mordekhai, BB no. 483, in the name of Avi ha-Ezri and of Meir of Rothenburg). In one instance Asher b. Jehiel decided that a member of the community was not competent to testify unless he "genuinely" renounced all personal benefit in the matter concerned (Resp. 58:1, 3), and in another case he went to the extent of holding that so far as tax was concerned, it was quite inconceivable for a member of the community to renounce effectively (or exclude himself from) all benefit deriving from his testimony: "for this matter of tax payment will ever be customary, and it is impossible for them to effect a renunciation in such manner as never to benefit from the tax that will be paid" (ibid., 6:15, also 6:21). In addition, the question of the disqualification of witnesses on the grounds of their kinship with one or other of the parties, or with the judges, often presented problems, since members of the community intermarried and created ties of affinity with each other. For all these reasons judges themselves were often in a similar position of being disqualified by law from hearing a matter (BB loc. cit.; Tur and Sh. Ar., ḤM 7:12; Beit Yosef and other standard commentaries).
ABROGATION OF DISQUALIFICATIONS
The problems outlined above were overcome by means of communal enactments which expressly qualified members of the community as witnesses and judges in matters concerning their fellow-residents. The question of the validity of a takkanah of this kind was raised before Solomon b. Abraham Adret, and answered in the affirmative: "This too is clear, that the enactment of the community is conclusive; in tax matters it has been the practice of all the communities to adjudge the town residents and to gather testimony from them, even though they be relatives of the judges or the litigants; moreover, it may be that the interests of the court and of the witnesses are at stake in their judgment and testimony, but they nevertheless testify for themselves; all this derives from the law of communal enactment" (Resp. Rashba, vol. 6, no. 7). He held that a takkanah of this kind was vital for the proper administration of justice in tax matters in particular and in matters of the public domain in general, "for otherwise you annul all communal enactments, yet the custom of the communities is law and in all matters of this kind it must be held that custom overrides the halakhah" (ibid., vol. 5, no. 286); furthermore, takkanot of this nature were common "and no community has ever called this matter into question" (ibid., no. 184; cf. the like opinion in Resp.Rosh, 6:15).
The impact of these takkanot became part of the fixed law: "Tax matters are not dealt with by the local judges, since they and their relatives have an interest therein… but if they have made a takkanah or the local custom is that the local judges deal also with tax matters… then this is the law" (Sh. Ar., ḤM 7:12); likewise as regards witnesses: "in these times it has been the practice to accept witnesses from among members of the [local] community… in regard to all their matters, and they are competent even in matters involving their relatives, for the reason that they [the communities] have accepted this for themselves" (ḤM 37:22). This halakhah became so widely accepted that at the beginning of the 20th century it was stated: "In our time we have never seen or heard that a matter affecting the community shall not be adjudged by the local dayyanim … and the local dayyanim are competent to deal with all matters of the community" (Arukh ha-Shulḥan, ḤM 7:22. For further particulars see
; Massa Melekh, pt. 7.).
The fact that a substantial part of the Jewish tax law system became based on written takkanot enacted in the various communities, contributed toward great creativity in the field of the interpretation of laws. In tax disputes between the individual and the community, and between different communities, the halakhic scholars were frequently called upon to interpret these takkanot and in so doing they not only decided the concrete matter before them, but also established guiding principles of interpretation of importance to Jewish law in general (see
). It may be noted that the scholars based the principles they applied in the interpretation of the communal enactments on a wide discussion of and reliance on various analogies from talmudic law, as can be seen from the responsa mentioned below.
INTERPRETATION OF COMMUNAL ENACTMENTS
Interpretation of the communal enactments was, in the main, the task of the halakhic scholars before whom a particular matter was brought, and very many of the responsa concerning
tax matters include detailed discussions on such interpretations (see, e.g., Resp. Rashba, vol. 5, nos. 277, 279; Resp. Ritba, nos. 114, 120; Resp. Maharyw, no. 84; and see illustrations below). Sometimes, however, a takkanah included an express provision that any doubt concerning the meaning of a matter mentioned in it was to be resolved by the interpretation of the incumbent communal leaders (called muqaddimūn or berurim), and the scholars decided that in this event the interpretative authority was entrusted to the aforesaid leaders (Resp. Rashba, vol. 3, no. 409; vol. 5, no. 221). Notwithstanding such an express provision there remained the possibility that in certain cases the issue had to be left to the decision of the halakhic scholars. This happened, for instance, in a case (Resp. Ritba, no. 134) which arose from a takkanah laying down that a person giving in marriage "a daughter or sister" to someone who did not pay tax in that community was liable, in certain circumstances, to pay tax on the amount given as a dowry. A resident of the community gave his granddaughter in marriage and the community demanded tax from him, contending that this case too was covered by the takkanah since "grandchildren are as children." The grandfather challenged this demand, pleading that such a construction was valid "in the language of the Torah" (see, e.g, Yev. 62b with reference to the mitzvah of procreation), "… but in human parlance and dealings, grandchildren are not called children," and therefore when a person bequeathed his property to his "children" his grandchildren were not included in the bequest (BB 143b). The communal leaders rejected this plea and, on the basis of the provision that anything in the takkanah whose meaning was doubtful must be interpreted as the communal leaders saw fit, contended that their own interpretation was binding. In his responsum Yom Tov b. Abraham Ishbili (Ritba) proved from talmudic law that in all matters concerning business transactions, vows, and communal enactments, the standards of "human parlance" had to be applied, and by these standards grandchildren were not to be equated with children (cf. also Yad, Nedarim, 9:23; Sh. Ar., YD 217: 46). On this basis he held that there was no further room for the communal leaders to interpret the term under dispute, "since the language used is not doubtful but clear" and the communal leaders' interpretative authority was confined solely to a case where doubt existed about the meaning of a particular term.
AMBIGUITY IN TAX ENACTMENTS
In a case of conflicting provisions in a takkanah dealing with tax liability, it was held that the takkanah in question had to be interpreted in favor of the taxpayer (Resp. Rashba, vol. 5, no. 281) and so too if the text of the relevant provision allowed for alternative interpretations. The basis for this statement was as follows: since the takkanah purported to impose on the individual a payment for which he would not otherwise be liable, therefore "everything that falls outside the ambit of the strict law cannot be made to apply to him except when this is clearly justified, and until this is so talmudic law has to be applied… because the burden of proof is on the plaintiff" (Resp. Rashba, vol. 3, no. 397; Ritba, no. 157). For the same reason an ambiguity in the text operated to the disadvantage of the individual if in strict law he was liable for the tax. In a case where the community had agreed to grant one of its members a tax exemption without specifying the period of its duration, Asher b. Jehiel rejected the member's plea that his had been an exemption for life and held that the law was in favor of the community if it pleaded that the exemption had been intended for one year only: "since he is obliged to pay along with the others but seeks to escape liability on the plea that he was granted an exemption, therefore he is at a disadvantage… and since he was given an undefined exemption, we have to interpret this exemption as restricted to the minimum that we have to adjudge him" (Resp. Rosh, 6:19).
LANGUAGE OF THE TAKKANAH AND INTENTION
It was held to be a basic principle that a takkanah must be interpreted in accordance with the knowledge and understanding of those who had authority to do so – the halakhic scholars or the communal leaders (muqaddimūn), as the case might be – and not according to "the intention of those who enact the takkanah" (Resp. Rashba, vol. 3, no. 409; in this particular case authority was entrusted to the muqaddimūn). However, exaggerated adherence to this principle was to be avoided, since "at all events there are times when the intention is common knowledge and is like a stake that cannot be uprooted, so that all know that a certain condition or matter was instituted, beyond any doubt, with a specific intention, even though the language allows for a contrary interpretation" (ibid.). This rule was illustrated in a dispute involving the interpretation of a takkanah stating that tax declarations had to be brought to the synagogue on a particular day of the week. In actual fact, however, the tax trustees sat in the courtyard (ḥaẓer) in front of the synagogue and on one of the upper floors (aliyah) but not inside the synagogue itself. Therefore it was averred that this was not in keeping with the language of the takkanah since places such as the ḥaẓer, aliyah, azarah, and so on had their own separate names and identities. This contention was rejected out of hand by Solomon b. Abraham Adret, for the reason that the relevant text had to be interpreted, in each case, in its own substantive context; thus if the takkanah in question had been concerned with prayer, the intention would have been to refer to the synagogue itself, that is the place where the congregation was led in prayer, but in a takkanah concerned with the submission of tax declarations, "the intention was not that they should actually be inside [the synagogue], for what need is there for them to be inside? On the contrary, no more was intended than that they should be in one of its areas, so as to be available to all" (Resp. Rashba, vol. 5, no. 222).
Various kinds of formalistic sophistry in interpreting the text were rejected. A certain takkanah stated: "If at the time of accounting it shall be found that a person shows an increase in his capital and money and all his property, beyond what was shown at the time of accounting in the previous year, he shall pay so-and-so much on such increase." A member of the
community who showed an increase in respect of some items but not in respect of "all his property" therefore contended that his case fell outside the ambit of the takkanah. Again Solomon b. Abraham Adret rejected this as "an idle plea… devoid of all reason or substance," since the meaning of the takkanah was not that the taxpayer had to show an increase in everything actually mentioned, but merely in one or other part of his assets, "and it is the way of the world to speak in this manner… the intention is plain, that everyone shall every year supplement his account with the increase over the previous year" (Resp. Rashba, vol. 3, no. 407). In the case of another takkanah, enforced by ban, it was provided that the taxpayer had to submit an annual declaration affirmed under oath, "and he shall not add thereto nor detract therefrom in any event whatever," until submission of the next annual return. A member of the community discovered in the middle of the year that he had forgotten to declare a certain asset but voiced his fear of rectifying the matter in view of the ban accompanying the stated provision. Solomon b. Abraham Adret replied that it was inconceivable for a person to escape tax liability on account of his own forgetfulness: "this is something which the ear, the heart, and reason all reject," hence the said condition could not reasonably be given its plain meaning, namely that nothing at all could be added to the declaration: "how does it matter to them [the community] that he shall not add when he wishes to do so?" There was no choice, he held, but to say that principally it was intended that there should be no detraction, and that the words "he shall not add thereto," represented no more than a routine and customary form of expression (loc. cit., no. 408).
SECURING AND RECOVERING A TAX DEBT
It was laid down that a tax debt, "from the moment of its assessment by the trustees," must be regarded in the same way as a debt "by deed" and was to be recovered out of the debtor's "free" property (nekhasim benei ḥorin), and failing this from his "alienated and encumbered" property (nekhasim meshu'badim), that is from property which the debtor had transferred to a third party after becoming liable for the tax (see
; Resp. Rashba, vol. 5, no. 136; vol. 4, nos. 64, 65). The free property included all the property, movable or immovable, in the debtor's possession, except that he had to be left with his basic needs for survival (Resp. Rashba, loc. cit.; see also
(Civil)) and except as otherwise provided in any takkanah. An instance is recorded in which the community enacted that a debtor's seat in the synagogue could not be attached in payment of a debt, not even a tax debt; later a special takkanah was enacted in connection with an extraordinary tax imposed by the central authorities, to the effect that even a synagogue seat could be taken in satisfaction of such an unpaid tax debt (Resp. Rosh, 5:4; at that time a synagogue seat entailed a proprietary right: see
For the purposes of recovering a tax debt, the concept of nekhasim meshu'badim had a wider scope than in the case of a regular debt. Thus it was held: "It has been the custom of all the communities… that when a person's money is subject to a debt owed to the community and this money is given to another, then the party becoming entitled to it takes the place of the first owner"; therefore the tax could be exacted from such money – even though this was not the law in case of any other debt – since "the tax obligation is imposed on the money, and all money which is so obligated and acquired by the second owner is still subject to the obligation of the first owner" (Resp. Ran, no. 10). It was also the practice to oblige the tax debtor to provide a surety or pledge for repayment of the debt (see, e.g., Resp. Rashba, vol. 3, no. 398; Resp. Rosh, 6:29; 7:11).
FINE, BAN, OR IMPRISONMENT
The customary means of coercion in post-talmudic times, a fine or ban (niddui or ḥerem), were also adopted against errant taxpayers (see, e.g., Resp. Ramah, no. 250; Resp. Rosh, 6:29, 28:4). Another means of enforcing a tax debt was imprisonment. Originally, in Jewish law imprisonment was not employed as a means of enforcing repayment of a debt, no matter what kind, since this was looked upon as prejudicial to the debtor's personal freedom and inimical to the fundamental principles of Jewish law governing the creditor-debtor relationship. It was only from the 14th century onward – in consequence of changed socio-economic conditions and influenced by the surrounding legal systems – that the Jewish communities came to adopt imprisonment for debt, and then with material reservations designed to protect an impoverished debtor (see
for Debt). However, in the case of a tax debt, imprisonment as a means of coercion had come into practice at an earlier date, apparently as early as the 11th century (see Rashi to Pes. 91a and Elon, Ḥerut ha-Perat …, p. 113). At any rate, it is recorded that in the 13th century it was "the custom of the communities to imprison any person who failed to pay the king's tax because the law of the land is law" (Resp. Rosh, 68:10). Some scholars explained this law on the basis that since the tax in question went to the government and since the general law of the land required that the debtor be imprisoned until he paid the tax, it followed that the community had to do likewise as "the king's agents" (Resp. Ranaḥ, no. 58; cf. the same concept above). However, as regards a tax debt, imprisonment was customary, not only in respect of "the king's tax," but also in respect of a communal tax: "The custom is widespread, in all countries of the Diaspora, that a person who owes [and fails to pay] tax to the community is incarcerated in prison; he is not brought before the court, but the communal leaders adjudge him in accordance with their custom, and he is not set free until he pays or until he provides a surety or binds himself by deed… for such is the tax law" (Resp. Rosh, 7:11). This continued to be the practice in the following century (see, e.g., Zikhron Yehudah, no. 79; see also the charter of rights for Majorcan Jewry, of 1315, in Dinur, loc. cit., vol. 2, pt. 2, p. 354).
After imprisonment had become an accepted means of enforcement in the case of regular unpaid debts, that is from the 14th century, it continued to be used, sometimes with increased
severity, in respect of tax debts. Joseph Colon, the 15th-century Italian halakhic scholar, stated that it was permissible to have a recalcitrant tax debtor imprisoned and compelled to pay his debt, even through intervention of the gentiles; this he explained on the basis that a Jew who refused to submit to the internal Jewish government was as one who refused to be adjudged before a Jewish court and whom it was permissible to sue in the civil courts, and under the general law of the land it was the practice for debtors to be imprisoned (Resp. Maharik, no. 17; here this rule was attributed to R. Gershom b. Judah; see also Rema, ḤM 163:1). Even in such a case, however, it was forbidden for all of the debtor's property to be handed to the civil authorities in a manner that caused him loss far beyond the measure of his tax liability (Resp. Maharik, no. 127); furthermore, it was forbidden to coerce, through the general authorities, any individual who was not a resident of the community claiming the tax from him, since such an individual was not subject to the jurisdiction of that community: "shall robbery be permitted because it is committed by the public?" (Resp. Maharik, loc. cit.). From the end of the 16th century onward, there are instances of particular severity in the enforcement of tax collection methods. Tax evasion had become a severe hindrance to the effective organization of autonomous Jewish life and to the maintenance of proper relations with the central government. Thus, for example, the following procedure was adopted: if a tax debt remained unpaid for three days, the debtor was declared "obdurate" (sarvan); if he persisted in his refusal, a ban was imposed, with various degrees of severity (see
); if thereafter the debt remained unpaid for a specific period of time, the debtor was imprisoned until the debt and the expenses involved were paid. This procedure was justified thus: "therefore we have taken such a stringent approach as concerns the tax takkanah because we see that many stumble in this respect and permit themselves latitude in tax matters, without taking to heart that this amounts to robbery of the public; hence we very carefully warn the public about this matter" (see takkanot of the Cracow community and of Moravia in the 17th century in Elon, Ḥerut ha-Perat …, pp. 178–80, 195f.). In another takkanah provision was even made for various sanctions, including imprisonment, to be adopted against communal leaders in the event of their failure to transfer the tax monies ("Toleranzgelder") to the proper destination in time, so as to avoid "great wrath" on the part of the government (Elon, ibid., p. 221). A similar detailed description has come down of the onerous tax collection procedures which, in the middle of the 18th century, the leaders of the Prague community were compelled by the government to adopt in order to raise the amount the latter prescribed for financing a war (see Elon, ibid., pp. 221f.).
At all times the halakhic scholars sought to educate members of the public toward genuine payment of their taxes, and emphasized the basic premise that anyone who evaded payment of his share of the tax increased the burden of the remaining members of the community by obliging them to pay more than their due share, and that this was the case whether the tax went to the government or toward financing the various services provided by the community. Hence it was held that tax evasion entailed not only ordinary robbery, but also "robbery of the public" (gezel ha-rabbim), which had to be most severely punished (see BB 35b, 88b). This transgression is repeatedly warned against (see, e.g., Sefer Ḥasidim, nos. 671, 1386, 1451), and not only the offender was held to be subject to punishment but also the communal leaders (even when they had paid their own due share of the tax) who failed to enact suitable takkanot designed to discourage others from tax evasion (loc. cit., no. 671). Samuel di Medina concluded that tax evasion rendered a person "a robber and disqualified as a witness and profit gained in consequence is to be weighed against the loss of the world to come" (Resp. Maharashdam, ḤM no. 442).
The multiple exhortations against tax evasion were aimed at counteracting a common human weakness to justify such conduct on a variety of grounds (see, e.g., Terumat ha-Deshen, Resp. no. 343). Hence in various takkanot a strict ban was imposed on all persons evading tax payment or aiding and abetting the evasion (see, e.g., takkanot of Valladolid of 1432, in Finkelstein, loc. cit., p. 371). Indeed, many were most careful to meet their tax liability in full, and often, after having submitted declarations of their taxable property, they returned to advise the trustees of any particulars they had forgotten to mention, in order to fulfill "the duty toward Heaven" and pay the true amount that was due (Resp. Rashba, vol. 3, no. 408). However, there were also instances where means of special severity had to be adopted to cope with tax evasion: "In these times fraud is prevalent and it is right to act with great severity so as not to encourage those who practice it" (Resp. Maharil, no. 121 and see above). A detailed and instructive illustration of the demand for integrity in tax payment is to be found in the "order of assessment" of the Mantua community of 1695. After it is stressed that the individual must faithfully render his tax "report" in all its details – lest he commit "robbery of the public" and his transgression be "beyond bearing" – it is stated: "for he shall not permit himself to do so and think that others too do not submit their report honestly and justly, and therefore he may act like them and withhold for himself… it is forbidden to do so for two reasons: firstly, this is simply a vain answer and an unfounded judgment, for how can he have clear information about the others… and secondly if it were true as he thinks, I would be surprised to know who permitted the robbery of those of good and upright heart because of someone who acts dishonestly, or who permitted a man to forfeit his right in the world to come because of that sinner or sinners?" (ch. 15; see further Massa Ḥayyim, Missim ve-Arnoniyyot, no. 16).
The special development that took place in the field of tax law also left its mark on the literary sources of Jewish law. The fact
that this development took place mainly in the 12th and 13th centuries can be clearly deduced from a review of the classic halakhic compilations of Jewish law. Thus, for example, there is very little mention of tax law in Alfasi's Sefer ha-Halakhot or in Maimonides' Mishneh Torah (11th and 12th centuries respectively). The subject is discussed more widely in Jacob b. Asher's Turim (ḤM 163) from the 14th century, and the scope of the discussion is progressively wider in Joseph Caro's Beit Yosef and Shulḥan Arukh, in Moses Isserles' Darkhei Moshe and glosses (ḤM 163) from the 16th century in Ereẓ Israel and Poland respectively, and in Ḥayyim Benveniste's Keneset ha-Gedolah to the Tur and Beit Yosef in the 17th century in Turkey. In the responsa collections also, particularly those dating from the 13th century onward, whole sections are devoted to tax law, which provide a great deal of informative material on this field of Jewish law (see indexes to the responsa collections; for particulars of all the above-mentioned works, see
The emergence of compilations specially devoted to the subject of tax law is of interest. As early as the 11th century a small work of this kind was compiled by Joseph Tov Elem (quoted in Resp. Maharam of Rothenburg, ed. Prague, nos. 940, 941). In the 14th century some 50 tax halakhot, in summary form, were quoted in the Nimmukim of Menahem of Merseburg (printed as an addendum to Resp. Maharyw). The most comprehensive and interesting compilation of this nature is the Massa Melekh, written by the 16th-century scholar from Salonika, Joseph b. Isaac ibn Ezra. Divided into seven parts, the work is a comprehensive review of tax law, titled and subtitled according to subject matter. At the end of these seven parts the author added a concluding section, Ne'ilat She'arim, containing a detailed exposition of the laws of custom with the author's explanation that tax law was based, first and foremost, on the legal source of custom. An interesting literary feature is the author's condensation of his own detailed discussions within the body of his work, into brief summarized halakhot, each containing the conclusion drawn from the preceding discussion (see summaries of the seven parts, pp. 65, 1–70, 2 and of the Ne'ilat She'arim, pp. 70, 2–72, 4). This method corresponded to that adopted by Joseph Caro, whose Shulḥan Arukh contains the summarized conclusions of the discussions in his Beit Yosef. Another such compilation is the Avodat Massa, written by the 19th-century scholar from Izmir, Joshua Abraham Judah. His book is composed of 24 sections subdivided into paragraphs and contains collections of tax takkanot and customs from Joseph Escapa, a rabbi of Izmir in the 17th century, and subsequent scholars. Some time later a work called Massa Ḥayyim was compiled by
, also of Izmir. It is divided into three parts, the first containing a very large collection of diverse takkanot and customs, particularly in the tax law field, the second dealing with various laws concerning tax matters, and the last part with the law of custom in general; each part is arranged in alphabetical order. In addition, tax laws are dealt with in detail in the takkanot collections of the various communities (see bibl.).