Amounts Paid for In Vitro and Surrogacy Not Deductible Medical Expenses (Morrissey, DC Fla.)

CCH Tax Day Report

A homosexual male was not entitled to a deduction for in vitro fertilization (IVF) expenses because the expenses were incurred for the medical care, identification, retention, compensation or reimbursement of expenses incurred by an unrelated egg donor and potential surrogate. Code Sec. 213 limits deductible medical expenses to amounts paid for the medical care of the taxpayer, his spouse or dependents. Expenses paid for medical procedures performed on other individuals such as third-party egg donors and surrogates cannot be deducted. Moreover, the expenses were not incurred for the diagnosis, cure, mitigation or treatment of any disease of the taxpayer, his spouse or dependent, nor did the medical care affect a structure or function of the taxpayer’s body, or the bodies of his spouse or dependents. The taxpayer argued that as a homosexual man he is effectively infertile and the amounts he paid for egg donors and surrogates affected his reproductive function because in order to father a child he had to use IVF. However, the taxpayer stipulated that the IRS has interpreted Code Sec. 213 to deny taxpayers deductions for the kinds of costs associated with surrogacy without regard to the taxpayer’s sexual orientation. Therefore, the IRS did not violate the constitution by denying the individual’s deduction and refund.

Further, the Anti-Injunction Act barred the individual’s requested injunctive relief. No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in court by any person. In addition, the individual was not entitled to a declaratory judgment because the requested deduction and tax refund were properly denied. Moreover, the Declaratory Judgment Act bars suits for declaratory relief in federal tax cases aside from limited exceptions that do not apply. W. Magdalin, 96 TCM 491, Dec. 57,629(M), TC Memo. 2008-293, aff’d CA-1, 2010-1 ustc ¶50,150, followed.

J.F. Morrissey, DC Fla., 2017-1 ustc ¶50,140

Other References:

Code Sec. 213

CCH Reference – 2017FED ¶12,543.42

Code Sec. 7402

CCH Reference – 2017FED ¶41,605.18

Code Sec. 7421

CCH Reference – 2017FED ¶41,683.10

Tax Research Consultant

CCH Reference – TRC INDIV: 42,074.20



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