I have been in our industry long enough and have become smart enough to know what I don’t know regarding third-party cycles. I do learn something new every day and have grown to be proud of that fact. That said, the reproductive technology attorneys we work with are a group I admire and learn much from, so when the latest legal complaint was sent to me to comment on, naturally I had to seek out the help of one of our well-respected attorneys, Nidhi Desai of Ballard, Desai & Miller, a family law practice based in Chicago.
The complaint, filed in November, 2015 by Joseph F. Morrissey, a law professor in a same-sex relationship, stated that the IRS’s refusal to honor his tax deduction for in vitro fertilization violated his Fifth Amendment rights. Residents of Florida, Mr. Morrissey and his unnamed partner, were prohibited by state law to marry, enter into a civil union or adopt, and so underwent IVF treatment.
The IRS disallowed their claim to deduct the medical expenses they incurred in this process, although similar expenses are arguably allowable under Tax Code 213 for heterosexual couples. The IRS even published its Publication 502 (revised December 31, 2014) advising that taxpayers may deduct fertility expenses, including those for “in vitro fertilization (including temporary storage of eggs or sperm).” In its administrative review of the denial of Mr. Morrissey’s claim, the IRS agent described the professor’s sexual orientation as a “choice,” suggesting that he could have had children through heterosexual intercourse.
Nidhi mentioned to me that there was a similar complaint brought up a few years ago which was rejected by the IRS. This case might progress but the outcome will depend on whether the court sees the expenses as medical expenses and may depend on the next administration. I asked Nidhi how long it took the previous case to be heard and it took about a year to hear the case. We will be in the next administration by then for good or bad.
In my opinion, the IRS should consider changing the tax code regarding this issue. The assumptions in this industry are outdated and the IRS needs to take a look at this issue “through a 21st Century lens” as Nidhi would say.
Perhaps there needs to be a shift in the courts regarding what is deemed a medical necessity and not a “choice”. In this day and age there are still some states that allow “conversion therapy” for those who want to transform from homosexuals to heterosexuals–hard to believe, but true.
With the number of States allowing same-sex marriage and equal rights for just about everything else, why can’t same-sex couples have the same tax benefits as every other taxpayer?
This article was composed by Nancy Block, RN and Fertility Source Companies Vice President of International and Major Client Relations.