Paul L. Caron

Tuesday, February 2, 2010

Tax Court: Gender Reassignment Surgery Is a Deductible Medical Expense (But Not Breast Augmentation)

Transamerica_1 In a long-awaited decision, a fractured (8-5-3) Tax Court today ruled in O’Donnabhain v. Commissioner, 134 T.C. No. 4 (Feb. 2, 2010), that male-to-female gender reassignment surgery qualifies as a deductible medical expense under § 213, reversing the IRS's position in Chief Counsel Advice 200603025.  The 8-judge majority held that:

  • TP's gender identity disorder is a “disease” within the meaning of  § 213(d)(1)(A) & (9)(B).
  • TP's hormone therapy and sex reassignment surgery were for the treatment of disease within the meaning of  § 213(d)(1)(A) & (9)(B), and thus not “cosmetic surgery” excluded from the definition of deductible “medical care” by § 213(d)(9)(A).
  • TP's breast augmentation surgery was directed at improving her appearance did not meaningfully promote the proper function of her body or treat disease within the meaning of § 213(d)(9)(B), and thus was “cosmetic surgery” excluded from the definition of deductible “medical care” by § 213(d)(9)(A).  

Judge Gale wrote the 69-page majority opinion, joined by Judges Cohen, Colvin. Marvel, Morrison, Paris, Thornton, and Wherry.  Judge Halperin (12 pages), Judge Holmes (joined by Judge Goeke) (23 pages), and Judge Goeke (joined by Judge Holmes) (6 pages) wrote separate concurring opinions.  Judge Foley (joined by Judges Gustafson, Kroupa, Vasquez, and Wells) (8 pages) and Judge Gustafson (joined by Judges Foley, Kroupa, Vasquez, and Wells) (21 pages) wrote separate opinions concurring in part and dissenting in part.

Prior TaxProf Blog coverage:


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» Tax Law is Crazy from
The Tax Court has decided in O’Donnabhain v. Commissioner that a MTF transsexual can deduct her hormone therapy and sex reassignment surgery as a medical expense, but cannot deduct her breast augmentation surgery. (HT: Tony Infanti) That's slicing the ... [Read More]

Tracked on Feb 2, 2010 4:38:37 PM

» Wacky tax deduction time from Don't Mess With Taxes
By now I'm sure you've heard about the recent Tax Court ruling that gender reassignment surgery costs are deductible medical expenses. You didn't? Then check out TaxProf's item on the ruling. He also includes lots of related links if you want to read e... [Read More]

Tracked on Feb 10, 2010 3:55:01 AM


Thanks so much for your ongoing thoughtful coverage of the O’Donnabhain case. Just to clarify the ruling on the breast augmentation: Judge Gale's majority opinion took pains to make clear that while the taxpayer's breast augmentation was not covered because of how her particular care providers discussed her breast development, doctrinally, other transgender tax payers may well be able to deduct those expenses, as well as those for other surgical procedures, so long as their care providers had documented that those procedures were connected to treating the clinical distress attendant to gender identity disorder.

Posted by: Karen Loewy | Feb 3, 2010 4:51:25 PM

I'm just amazed by this case (that would be because I'm Peruvian and I didn't know about it). That's juts one example on how Tax law (derecho tributario, in spanish) can build its own language. Here, we students seldom complain on how tax law has a different conceptual body different from other laws. Well, even in this case, medical issues can be set as legal issues, for deduction matters.

That's just a brief point of view from a a foreign blogger.


Posted by: Efrain Rodriguez | Feb 2, 2010 7:11:48 PM