ATLANTA -- The 11th U.S. Court of Appeals has upheld a district court ruling in which the Internal Revenue Service disallowed  a Florida man’s deduction of his in-vitro fertilization expenses.

Joseph Morrissey filed suit after he and his homosexual partner decided they wanted to have a baby through the IVF process. From 2010 to 2014, Morrissey spent more than $100,000 on the IVF process, including trying to find  a woman to fertilize the egg and another to serve as a gestational surrogate.

IRS building
IRS building | CNBC

In 2011, which is the tax year in question, Morrissey paid nearly $57,000 out of pocket for IVF-related expenses. 

Morrissey initially did not claim a medical expense deduction and he paid $22,449. But in December 2012, he amended his return that showed a deduction of $36,538, which resulted in a refund of $9,539.

The IRS denied Morrissey’s refund claim and then disallowed his IVF-related deduction in its entirety. In its refusal letter, the agency cited a regulation which governs deductions for “medical care” expenses.

The regulation, “states that MedicalCare must be for medical services provided to the taxpayer, his spouse, or dependent

Morrissey filed an appeal with the IRS Office of Appeals, which denied his claim. He then headed to district court and his complaint made two claims. Morrissey cited Tax Code Section 213 ‘’as plainly written, authorizes (his) requested deduction.”

Then he argued that his deductions violated the equal protection component of the Fifth Amendment.  The district court ruled in favor of the IRS, which set the stage for the U.S. Court of Appeals' action.

The appeals panel said there was not enough evidence to change the district court order.

‘’We hold that the costs of the IVF-related procedures at issue were not paid for the purpose of affecting the taxpayer’s own reproductive function — and therefore are not deductible — and that the IRS did not violate the Constitution in disallowing the deduction,’’ the opinion said.

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