Is being gay a choice? The IRS still thinks so. That
was one of the reasons that was given in the denial of a medical deduction for in-vitro
fertilization and surrogacy expenses for a Florida gay man.
Joseph F.
Morrissey is a constitutional and business law professor at Stetson University.
He is suing the federal government in an attempt to overturn a ruling by the
IRS for the denial of the aforementioned medical deduction. Mr. Morrissey and
his long-term partner have twin sons who were born last year from a surrogate.
According to the lawsuit filed in federal court in Florida, the process took “nearly four years, seven IVF procedures
(including those scrubbed at the last minute for failed medical exams), three
surrogates, three egg donors, two clinics and more than $100,000,”. At the time
that Mr. Morrissey started the process, it was illegal in Florida for a
homosexual to adopt a child.
On his
2011 income tax return, Mr. Morrissey took a medical deduction of $36,538 for
fertility costs on Schedule A of his 1040. This saved him $9,539 in federal income
tax.
His
return was pulled for audit examination by the IRS. The IRS eventually denied
the medical deduction on the grounds that the medical expenses were not related
to the taxpayer, his spouse or dependents, nor were they necessary to treat a
medical condition. Furthermore, the IRS Revenue Agent who audited his return stated
that being gay is a “choice” and that Mr. Morrissey could have children by
traditional methods.
The IRS has previously
granted the medical deduction for surrogacy costs for straight couples in which
one of the spouses was infertile. Section 213 of the Internal Revenue Code
states that medical expenses are only deductible to treat a medical condition.
In 2008, in Magdalin,
TC Memo 2008-293,
the US Tax Court ruled that the IRS could deny a medical deduction for
surrogacy costs to a single man based on the fact that he had no medical
condition preventing him from having kids.
Mr. Morrissey
contended that since he is gay and in a monogamous relationship, he is “effectively
infertile”. Also, the surrogate would have no parental rights and the baby
would be a dependent of Mr. Morrissey, therefore the medical expenses were
related to a dependent and thus deductible under section 213.
Mr. Morrissey is now
suing the IRS in federal court seeking a judgement for the amount of the tax
savings from the medical deduction plus attorney fees. He is also seeking to
prevent the IRS from treating him differently from heterosexual couples.
The case is Morrissey v. United States of America,
M.D. Fla. 2015 (Case No. 8:2015cv02736).
