TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Saturday, June 9, 2012

The Deductibility of Gender-Specific Medical Expenses

Anne K. Leung (J.D. 2011, Rutgers-Newark), Note, Taxing Gender: The Deductibility of Gender-Specific Medical Expenses and Proposals for Reform, 32 Women's Rts. L. Rep. 224 (2011):

In this note, I will examine several types of medical expenses that are distinctly incurred by individuals of different genders, and their respective treatment under the federal system of taxation. I will study a recent Treasury determination declaring the non-deductibility of infant formula for mastectomy patient-taxpayers, as well as the implications of current social policy on the Code and past Tax Court rulings. Further, I will discuss the tax treatment of assisted reproductive technologies, including in vitro fertilization, egg and sperm donors, and surrogacy, and the effect of such treatment on taxpayers who do not fit the traditional nuclear family structure. Despite a recent Tax Court decision that denied a deduction for the cost of such procedures by an unmarried individual, various theories suggest that adherence to the Code may still be possible for non-traditional families. Such theories include a return to longstanding constructions of the Code, as well as a redefinition of fertility. Ultimately, arguments in favor of expanding deductibility for those outside of the traditional nuclear family structure will also, in turn, support and inform the struggle to allow deductions for those physically unable to breastfeed.

In light of ongoing change in social norms and behaviors, it has become clear that the Code alone no longer provides adequate guidance in several important areas. Treasury determinations, which include Revenue Rulings and Private Letter Rulings, as well as Tax Court and Board of Tax Appeals decisions, give supplementary but limited directive. Ultimately, the IRS must introduce change on a larger scale to address the needs of diverse taxpayers.

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