The Tax Court today looked at the case of a man who deducted in vitro fertilization (IVF) expenses. There was just a few problems: he wasn’t married, had no medical conditions, and the IRS objected.
So why did the petitioner want to deduct IVF expenses? And why did the IRS object?
“Petitioner argues that it was his civil right to reproduce, that he should have the freedom to choose the method of reproduction, and that it is sex discrimination to allow women but not men to choose how they will reproduce…“Although respondent believes that amounts paid for procedures to mitigate infertility may qualify as deductible medical care”, respondent argues that “Petitioner had no physical or mental defect or illness which prohibited him from procreating naturally”, as he in fact has, and that “the procedures were not medically indicated.” Respondent’s position is that the expenses at issue are nondeductible under section 262 because “Petitioner’s choice to undertake these procedures was an entirely personal/nonmedical decision.”
The court first examined whether the expenses were medical expenses or nondeductible personal expenses.
None of the expenses at issue was “incurred primarily for the prevention or alleviation of a physical or mental defect or illness.” Sec. 1.213-1(e)(1)(ii), Income Tax Regs. In other words, petitioner had no medical condition or defect, such as, for example, infertility, that required treatment or mitigation through IVF procedures.
The petitioner also alleged constitutional questions (discrimination) based on him being a man. He had used IVF to father children through unrelated surrogate mothers and alleged that to not allow him the ‘choice’ of doing so was discriminatory. The court’s conclusion answers that issue:
Although petitioner at times attempts to frame the deductibility of the relevant expenses as an issue of constitutional dimensions, under the facts and circumstances of his case, it does not rise to that level. Petitioner’s gender, marital status, and sexual orientation do not bear on whether he can deduct the expenses at issue. He cannot deduct those expenses because he has no medical condition or defect to which those expenses relate and because they did not affect a structure or function of his body. Expenses incurred in the absence of the requisite underlying medical condition or defect and that do not affect a structure or function of the taxpayer’s body are nondeductible personal expenses within the meaning of section 262.
Can a couple having trouble conceiving use IVF and deduct those expenses? If it’s medically indicated, almost certainly. Can a man deduct IVF just to have more children? No.
Case: Magdalin v. Commissioner, T.C. Memo 2008-293
