Translated and adapted by Rav Eliezer Kwass
Are employees required to separate ma'aser kesafim from their expense allowance?
To lay the groundwork for answering our question, we will first present the basic views on the source of the law of ma'aser kesafim and what type of an obligation it is (biblical, rabbinic, or custom). We will then deal with the relationship between ma'aser kesafim and the general obligation to give charity ("tzedaka").
The clearest source obligating us in ma'aser kesafim is a Sifre quoted by the Tosafot in Ta'anit (8b). In the gemara, Rav Yochanan points out a seemingly redundant biblical phrase, saying, "What is meant by 'You shall surely tithe' ('Aseir te-aseir')? Tithe (aseir) so that you will become rich (she-tit'asheir)." The Tosafot quote a Sifre on that verse:
"'You shall surely tithe all the produce of your grain, that the field gives forth every year.' [From the simple reading of the verse] all I know is that one's produce is obligated in ma'aser; how do I know that interest, business money, and other earnings are also obligated? It says 'all' ('et kol')."
This passage quoted by Tosafot does not appear in our texts of the Sifre. It is possible that the Rambam and other Rishonim did not have it in theirs, and for this reason did not mention the obligation of ma'aser kesafim in their works.
The Yalkut Shimoni (Re'eh) also interprets "aseir te'aseir" as referring to ma'aser kesafim:
"'Aseir te'aseir': tithe so you will not lack ('shelo techsar'); tithe so you will become rich ('she-tit'asheir'). God says, 'Give my tenth and I will make you rich.' Rabbi Abba says, This hints that traders and sea-farers should put aside a tenth for Torah scholars. 'Tevu'at zar'akha ha-yotzei ha-sadeh' ('Of the produce of your seed which comes out of your field'): If you merit, you will eventually go out and sow [your field]; if not, he who goes out to the field will eventually fight with you. Who is this? The evil Eisav - the 'ish sadeh' (man of the field)."
There are, however, two crucial differences between the Yalkut Shimoni and the Sifre quoted by Tosafot.
1. According to the Yalkut Shimoni, ma'aser kesafim is only "hinted" at by the verse, not directly mentioned by it (which would carry the force of a biblical obligation) as in the Sifre.
2. The money, according to the Yalkut Shimoni, is to be given to Torah scholars, whereas in the Sifre it is given as standard charity.
It is possible, at first glance, to say that this law refers specifically to sea-farers. Not able to devote time to learning, they have a special obligation to support Torah scholars, to create a Yissachar-Zevulun relationship. [According to Bereishit Rabba 99:9, the tribe of Zevulun, through their trading, supported Yissachar, who devoted their energies to Torah scholarship.] If this is the case, one can certainly not derive from here any general obligation to set off a tenth for charity. If, however, the ma'aser spoken of in the Yalkut is normal tzedaka (and we see "seafarers" and "Torah scholars" as just an example of charity), it still only has the force of a "hint", not an obligation.
Many Acharonim agree with the Bach (YD 331) that ma'aser kesafim is not an obligation, but only a pious custom ("midat chasidut"). The Taz (YD 331:32), however, argues that it is obligatory. Apparently, the Taz sees it as a branch of "ma'aser ani," the poor man's tithe, which he discusses nearby. Later Acharonim differ about whether the Taz saw it as a biblical or a rabbinic commandment (see Tzitz Eliezer 9:1 who quotes their opinions).
Practically, most Acharonim agree that there is an obligation to set aside ma'aser kesafim. As the book "Dinei Mamonot" puts it:
"One is obligated to set off a tenth of his monetary income. Most Acharonim believe it is a rabbinical obligation, though there are some who say it is biblical, and some who say it is a custom."
Regardless of whether his assessment that the majority believe that it is rabbinic is correct, the consensus states that there is, today, an obligation to set aside ma'aser kesafim. Even if it is a custom, it is widespread enough nowadays to be considered accepted by the majority of the community and, therefore, obligatory.
Ma'aser Kesafim and Tzedaka:
How does the rule of separating off a tenth relate to the commandment to give charity?
The Rambam (Hilkhot Matnot Aniyim 7:5) discusses the amount of tzedaka one should give, and writes:
"How much? Ideally one should give a fifth of one's property; one tenth is a normal amount (beinoni); and less than a tenth is considered miserly. A person should never give less than a third of a shekel per year."
One cannot, however, conclude from here that ma'aser kesafim is, according to the Rambam, the standard obligation of tzedaka. The Rambam here is not dealing with a pre-determined, periodic deduction from one's income, but rather with the commandment to give tzedaka when approached by a poor person for sustenance. In this case, the commandment to give tzedaka is biblical, and by ignoring the request one transgresses "Do not tighten your heart." The actual amount required is "what the poor person lacks" ("dei machsoro"), if possible, and it sounds like the Rambam recommends paying this even if it is more than a fifth of one's property (despite the Decree of Usha not to exceed a fifth, Ketubot 50a). However, if one does not have enough to supply whatever the poor person needs, he must at least pay a fifth or a tenth of his income or a third of a shekel, depending on his generosity and financial situation. [The Tur (YD 249) requires holding to the one fifth limit in all instances.]
Another difference between ma'aser kesafim and the commandment of tzedaka is how the money should be used. The Rema (249:1) writes:
"One should not use his ma'aser money for mitzvot such as candles for the synagogue and the like, but rather should give the money to the poor."
The Shakh and the Taz infer from the Maharam, against the Rema's opinion, that one can use the money for mitzvot. (See the Pitchei Teshuva, who quotes other Acharonim who disagree with this interpretation of the Maharam.) Apparently the Maharam and the Rema differ in their understanding of the relationship between ma'aser kesafim and tzedaka. The Rema views ma'aser kesafim as setting an amount for the mitzva of tzedaka; hence, he forbids using ma'aser money for any non-tzedaka purposes. The Taz, in contrast, perceives ma'aser as an independent mitzva and permits using the money for mitzvot other than tzedaka. In line with this, the Taz writes in YD 331 that ma'aser kesafim is related to ma'aser ani, based on the Sifre that Tosafot quoted. It is not identical with ma'aser ani; ma'aser kesafim is given constantly and ma'aser ani only two out of the seven years in the shemita cycle, and the range of possible uses of ma'aser kesafim is wider than that of ma'aser ani. Nevertheless, according to the Taz, ma'aser kesafim is an obligation, rooted in passages of the Torah, to set aside a tenth of one's income for God. The Rema sees it simply as the median level of charity giving.
The Yerushalmi at the beginning of Pe'a, in a discussion of mitzvot that do not have any set amounts, quotes a derivation for the rule of giving a fifth for tzedaka. There, the fifth is seen as how much must be given to a poor person who requests assistance. The Yerushalmi asks the obvious question: If a person gives a fifth of his property to each poor person, one will be left with nothing after giving to five people. Should a person give away all of his property to tzedaka? It answers that a person should first give a fifth of his property, and subsequently give a fifth only of his income.
According to this, even if the mitzva of tzedaka only applies when one is approached by a poor person, all of one's property and all of one's income since the last giving must be taken into account when calculating how much to give. Even without the passage in the Sifre, one can arrive at an obligation to set aside a tenth for tzedaka from income simply in order to fulfill the "average" requirement. Perhaps the difference between the Yerushalmi and the Sifre lies in when to set aside the money: right after harvesting, as required by the Sifre which relates to ma'aser, or when approached by a poor person, as in the Yerushalmi.
The Yerushalmi, as codified by the Shulchan Arukh (YD 249:1), also emerges as a source connecting ma'aser with tzedaka. The Shakh views the Yerushalmi's comments about how to give one fifth as applying also to he who wishes to give a tenth. This Yerushalmi might be at the root of why many Rishonim did not speak of ma'aser kesafim as an independent obligation. Moreover, even those, like the Bach, who did not believe there is a rabbinic obligation to give ma'aser kesafim, still agree that practically one must give a tenth of his income to charity (unless he wants to be considered a miser).
Income Obligated in Ma'aser:
Based on the above, we will examine which sources of income must have ma'aser separated. As we have seen, the basic obligation is to set aside from all one's property. Even when the Yerushalmi speaks of setting aside from income alone, it intends simply to avoid repetitive tithing of the same sum. In other words, one sets aside ma'aser from the principal once, and subsequently only from income. Where the money comes from does not seem to be an issue; once something becomes part of one's property, it falls under the obligation of ma'aser. In fact, the Pitchei Teshuva (YD 249) rules that one is obligated to take off ma'aser even from an inheritance which has already been tithed by his father. It follows that an expense allowance would also be obligated in ma'aser the moment it became his.
However, an expense allowance might be exempted from ma'aser based on its intended purpose. The Rema (YD 251:3) writes, "One's own sustenance precedes that of another, and one need not give tzedaka until he himself is provided for."
This apparently contradicts the Shulchan Arukh's ruling (YD 248:1): "Everyone is obligated to give tzedaka; even a poor person who subsists on tzedaka must give from what is given to him." If supporting oneself precedes supporting others, why must the poor person give tzedaka? Is it not preferable to use what is allotted to him, rather than pass it on to other poor people?
Acharonim dealt with this question (see "Tzedaka U-mishpat" 1:6). One possible resolution is that the Shulchan Arukh spoke of the minimal requirement (a third of a shekel per year) that all are required to give, and the Rema spoke of ma'aser. It is clear that one who is dependent on tzedaka for his livelihood or one who lacks basic necessities is not obligated to give ma'aser.
The Acharonim differ regarding the calculation of how much ma'aser to give:
A. The Ran (quoted in Avkat Rokhel 3) writes that one takes off ma'aser after deducting the needs of his own family.
B. The Chida (Birkei Yosef 249:5) disagrees with him and rules that one should set off from all his income without deducting expenses.
C. The Tzitz Eliezer (10:6), despite the simple reading of the Acharonim that one should calculate ma'aser without deducting personal expenses, is lenient on this issue.
D. It seems that the Yechaveh Da'at (3:76) believes that ideally one should be strict and not deduct expenses, but one can be lenient in situations of need.
Apparently, the root of the dispute lies in whether ma'aser kesafim should be compared to ma'aser ani. If it is, one would have to take off from the income directly, without deducting expenses, similar to ma'aser ani which is separated right after harvesting. However, if ma'aser kesafim is viewed simply as the amount of tzedaka to be taken off from income (as per the Yerushalmi), the money for one's own basic needs would not be considered part of his property, since it will definitely not become his permanent possession.
It seems to me that the consensus would rule leniently regarding an expense allowance since it does not represent wages but rather spending money for traveling and the like. This is akin to a son who would not have to set aside ma'aser from money given to him by his father to go on a trip or buy an item of clothing - it is not his money but his father's. On the other hand, when a company views such an allowance as a type of gift to their employee and does not insist on any specific use - it IS income and as such is subject to the regular law of ma'aser.
Accordingly, even those who normally rule that ma'aser must be taken off without deducting one's own expenses would agree that employees need not factor in expense money. If, however, an employee does not use this money and it becomes his own property, he must then set aside ma'aser.
(Adapted from Daf Kesher Kislev 5753, #366, vol. 4, pp. 262-266.)