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Akron Univ. School of Law

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Sunday, February 7, 2010

Impact on Insurance Coverage of Decision that Gender Reassignment Surgery is a Deductible Medical Expense?

Hat tip to Paul Caron at Tax Prof Blog for the following story that raises a follow-up question -- what impact will the Tax Court's decision have on health insurance coverage? 

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:

Update:

http://lawprofessors.typepad.com/healthlawprof_blog/2010/02/tax-court-gender-reassignment-surgery-is-a-deductible-medical-expense-but-not-breast-augmentation.html

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