## Facts

- Betty Ann Ferguson, proceeding pro se, petitioned the U.S. Tax Court to challenge IRS determinations and intended to prove her case largely through her own testimony.
- Before testifying, the Tax Court required Ferguson to “swear” or “affirm.”
- Ferguson refused both, asserting sincere religious objections grounded in Biblical passages (Matthew 5:33–37; James 5:12) and her belief that “affirm” functioned as an oath.
- Ferguson offered an alternative declaration of truthfulness (modeled on a state-court formulation): she would declare that her testimony would be accurate, correct, and complete, and she was willing to acknowledge exposure to perjury penalties.
- The Tax Court rejected the alternative and indicated that an affirmation did not violate any “recognizable religious scruple.”
- Because Ferguson would not swear or affirm, the Tax Court dismissed her petition for lack of prosecution.
- Ferguson appealed the dismissal to the Fifth Circuit.

## Issues

1. Whether Federal Rule of Evidence 603 permits a witness to satisfy the duty of truthful testimony through an alternative declaration when the witness has a sincere religious objection to “swearing” or “affirming.”
2. Whether the Tax Court violated the Free Exercise Clause by rejecting a proposed alternative and dismissing the case based on the judge’s assessment of the religious objection’s legitimacy.

## Decision

- The Fifth Circuit reversed the Tax Court’s dismissal and remanded for further proceedings.
- The court held the Tax Court’s refusal to accept an alternative declaration was inconsistent with Federal Rule of Evidence 603.
- The court held the Tax Court’s approach was inconsistent with the First Amendment because it effectively discounted Ferguson’s religious beliefs rather than accommodating them when a workable alternative was available.

## Legal Principles

- Federal Rule of Evidence 603 requires a pre-testimony declaration to testify truthfully “in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to testify truthfully,” and does not mandate specific words such as “swear” or “affirm.”
- When a witness proposes an alternative declaration that serves Rule 603’s function (including, where appropriate, acknowledgment of perjury penalties), a court should not reject it solely because it lacks conventional oath terminology.
- Under the Free Exercise Clause, courts may not assess the validity or “recognizability” of religious beliefs; the relevant inquiry is sincerity and whether the government can meet its legitimate objectives through less burdensome means.
- A dismissal for lack of prosecution cannot stand when the party’s inability to proceed is caused by the court’s erroneous refusal to accept a permissible, accommodating form of truthful-testimony declaration.

## Conclusion

The Fifth Circuit ruled that Rule 603’s flexible oath requirement and the First Amendment required the Tax Court to accommodate Ferguson’s sincere religious objection by permitting an alternative truthfulness declaration, so the dismissal for lack of prosecution was reversed and the case remanded.


Ferguson v. Comm'r of Internal Revenue, 921 F.2d 588 (5th Cir. 1991)