An Analysis of the Medical Expense Deduction Post-O'Donnabhain

2012 ◽  
Vol 10 (1) ◽  
pp. 43-61
Author(s):  
Eric S. Smith ◽  
Ryan H. Pace
Keyword(s):  
Cosmetic Surgery ◽  
Case Law ◽  
The United States ◽  
The Body ◽  
Medical Expense ◽  
Legislative History ◽  
Medical Expenses ◽  
Gender Reassignment ◽  
Physical Diseases ◽  
Tax Court

ABSTRACT In 2010, the United States Tax Court upheld a taxpayer's deduction for medical expenses arising from gender reassignment surgery. This article discusses the facts of the O'Donnabhain case and the Tax Court's holding in light of relevant legislative history, and finds that a new layer of understanding now exists in the context of deductible plastic surgery: in a post-O'Donnabhain world, mental (not just physical) diseases may be treated through physical alterations to the body and give rise to deductible medical expenses. Based on the Tax Court's opinion, we posit an algorithm for application of what we consider to be a fourth case law-created exception to the disallowance of deductions for cosmetic surgery, which may have application in both LGBT- and non-LGBT-related instances.

Morphological Freedom and Medicine: Constructing the Posthuman Body

2018 ◽  
Author(s):  
Luna Dolezal
Keyword(s):  
Common Sense ◽  
Cosmetic Surgery ◽  
The Body ◽  
Popular Imagination ◽  
Gender Reassignment ◽  
Common Parlance ◽  
And Gender ◽  
Body Practices ◽  
Health Function ◽  
At Will

The notion that the body can be changed at will in order to meet the desires and designs of its ‘owner’ is one that has captured the popular imagination and underpins contemporary medical practices such as cosmetic surgery and gender reassignment. In fact, describing the body as ‘malleable’ or ‘plastic’ has entered common parlance and dictates common-sense ideas of how we understand the human body in late-capitalist consumer societies in the wake of commercial biotechnologies that work to modify the body aesthetically and otherwise. If we are not satisfied with some aspect of our physicality – in terms of health, function or aesthetics – we can engage with a whole variety of self-care body practices – fashion, diet, exercise, cosmetics, medicine, surgery, laser – in order to ‘correct’, reshape or restyle the body. In addition, as technology has advanced and elective cosmetic surgery has unapologetically entered the mainstream, the notion of the malleable body has become intrinsically linked to the practices and discourses of biomedicine and, furthermore, has become a significant means to assert and affirm identity.

scholarly journals MARGINALIZING TRANS MEDICAL EXPENSES: LINE-DRAWING EXERCISES IN TAX

2013 ◽  
Vol 31 (2) ◽  
pp. 209 ◽  
Author(s):  
Samuel Singer
Keyword(s):  
Present Article ◽  
Gender Dysphoria ◽  
Social Stigma ◽  
Line Drawing ◽  
Sex Reassignment Surgery ◽  
Medical Expense ◽  
Medical Expenses ◽  
Tax Relief ◽  
Trans People ◽  
Tax Court

This article explores the treatment of trans medical expenses under American and Canadian tax laws. In both tax systems, medical expenses are deemed worthy of tax relief, while many cosmetic procedures are excluded. This article argues that tax administrators and the judiciary are influenced by social stigma when they employ the distinction between cosmetic and medical expenses to exclude or allow trans medical expenses. In the American context, this article focuses on the Internal Revenue Service’s reasons for deeming a trans woman’s gender dysphoria-related medical expenses to be ineligible for the medical deduction. It then turns to the taxpayer’s subsequent appeal to the U.S. Tax Court in O’Donnabhain v. Commissioner, 134 TC no. 4, and the Court’s determination that, while the taxpayer’s sex reassignment surgery and hormone therapy were eligible expenses, her breast augmentation was not deductible. The article follows by outlining the Canadian medical expense tax credit to determine how similar trans medical expenses might be treated in light of a budget amendment in 2010 prohibiting claims for most cosmetic procedures. The article concludes that in both the American and Canadian context, trans people are held to a higher standard than required under each respective tax statute, with their gender dysphoria-related medical expenses needing to be documented as “medically necessary” to avoid categorization as ineligible cosmetic expenses.  Le présent article examine le traitement des frais médicaux liés à la dysphorie sexuelle en vertu des lois fiscales américaines et canadiennes. Dans les deux régimes fiscaux, les frais médicaux sont considérés comme admissibles à un allègement fiscal, tandis que plusieurs interventions esthétiques sont exclues. Le présent article fait valoir que les administrateurs fiscaux et la magistrature sont influencés par les stigmates sociaux lorsqu’ils ont recours à la distinction entre les frais d’intervention esthétique et les frais médicaux pour exclure ou justifier les frais médicaux liés à la transition. Dans le contexte américain, le présent article se penche sur les motifs formulés par l’Internal Revenue Service pour juger inadmissibles à la déduction pour frais médicaux les frais médicaux liés au trouble d’identité sexuelle d’une femme transgenre. Il examine ensuite l’appel interjeté ultérieurement par la contribuable à la US Tax Court dans O’Donnabhain v. Commissioner, 134 TC no. 4, ainsi que la décision de cette cour selon laquelle la chirurgie pour changement de sexe et l’hormonothérapie de la contribuable constituaient des frais admissibles, alors que son augmentation mammaire n’était pas déductible. L’article décrit ensuite le crédit d’impôt canadien pour frais médicaux pour déterminer comment des frais médicaux similaires liés à la dysphorie sexuelle pourraient être traités à la lumière d’une modification budgétaire de 2010 interdisant les réclamations pour la plupart des interventions esthétiques. L’article conclut que, tant aux États-Unis qu’au Canada, les personnes transgenres doivent satisfaire à une norme plus élevée que celle que prévoit la loi fiscale à laquelle elles sont assujetties, leurs frais médicaux liés à la transition devant être documentés comme étant « médicalement nécessaires » pour éviter d’être qualifiés de frais d’intervention esthétique inadmissibles. 

scholarly journals Peculiarities of adjudication of tax disputes by the United States Tax Court

2020 ◽  
pp. 26-34
Author(s):  
Dina Osina
Keyword(s):  
United States ◽  
Case Law ◽  
The United States ◽  
District Courts ◽  
Tax Legislation ◽  
Legal Literature ◽  
General Scientific ◽  
Simplified Procedure ◽  
Tax Court

Currently, the United States has three judicial instances that are authorizes to contest the fact of bringing to responsibility for violation of tax legislation: Tax Court, Court of Claim, and district courts. The United States Tax Court is the most demanded authority among taxpayers that adjudicates over 95% of all tax disputes, which is substantiated by the fact that it is the only instance where a taxpayer can apply prior to paying taxes, penalties and fines. This article using the general scientific and special legal methods examines the previously uncovered in Russian legal literature peculiarities of adjudication of tax disputes by the United States Tax Court. Including the questions of formation of precedents in tax cases. As a result of the conducted research the author formulates the following conclusions: 1) a mandatory conditions of jurisdiction of the Tax Court is the notification on uncollected tax; if it is absent, the tax payer cannot appeal to the Tax Court; 2) only a small number of cases is considered by the Tax Court substantively, namely due to the fact that the parties listen to the verbal opinion of the judge, based on which formulate the settlement offer and submit for approval of the judge; 3) the opinion and decisions of the Tax Court should be differentiated, only certain categories of opinions are of precedent nature; 4) since the decisions of the Tax Court are subject to appeal to the thirteen Courts of Appeal, potentially there occurs a problem related to controversial case law on the same issues; 5) cases with an insignificant sum in dispute qualify under simplified procedure, which contributes to procedural efficiency; however, the opinion formed based on the results of such consideration would not be of precedential value.

scholarly journals A Step Too Far: Matter of A-B-, 'Particular Social Group,' and Chevron

2019 ◽  
Author(s):  
Jaclyn Kelley-Widmer ◽  
Hillary Rich ◽  
Cornell Library
Keyword(s):  
Domestic Violence ◽  
Social Group ◽  
Attorney General ◽  
Case Law ◽  
The United States ◽  
Central American ◽  
Legislative History ◽  
Size Limitation ◽  
Potential Basis ◽  
To Receive

Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show that their membership in a “particular social group” is one central reason for their persecution. In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III restricted case law establishing domestic-violence-related particular social groups and attempted to destroy the viability of such claims altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts because it contravenes the intent of Congress.A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for the abrupt, unwarranted departure from established immigration law that it represents. As a result of A-B-, individuals, many of them women, are being subjected to both different and higher standards for certain aspects of their asylum claims and must “re-invent the wheel” of establishing that domestic violence can be a basis for asylum.Federal courts reviewing immigration decisions normally apply the Chevron two-step framework to review agency decisions: first, has Congress defined the term at issue, or is it ambiguous? Second, if the term is ambiguous, is the agency interpretation of the term reasonable and therefore deserving of deference? Both steps of Chevron require a court to begin by using statutory interpretation to examine the meaning of the term.In this Article, we provide a fresh analysis of the term “particular social group” through statutory construction, legislative history, and international context to find that there are some parameters around the term that are not ambiguous. Applying these parameters to A-B- at Chevron step one, we argue that A-B- is at odds with the meaning of particular social group because it incorrectly implies that there is a size limitation to meet the particularity requirement of a group, and because the decision raises the standard when the source of persecution is a private actor.Turning to Chevron step two, we argue that A-B- contains fundamentally unreasonable interpretations of the remaining ambiguous elements of particular social group. For example, the decision contravenes the mandate that “particular social group” be a flexible category that can adapt to evolving humanitarian concerns. It also renounces consideration of the perspective of the persecutor in defining the group. In attempting to unilaterally foreclose an entire type of particular social group as a potential basis for asylum, Attorney General Sessions contradicts congressional intent, misinterprets precedent, and oversteps the discretionary authority afforded to the agency. Therefore, reviewing courts should not give A-B- Chevron deference.

scholarly journals Restatement of the Law, Copyright: A Useful Resource for Practitioners and Courts or a Rashomon Exercise?

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Eric J. Schwartz
Keyword(s):  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Copyright Law ◽  
Point Of View ◽  
Legislative History ◽  
The Face ◽  
American Law ◽  
The Law ◽  
Federal Statute

As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.”  An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute.  Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary. If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts?  In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law?  What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result? From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators.  This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues.  The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.

Partial Price-Fixing and Semi-Collusion

2021 ◽  
pp. 0003603X2110454
Author(s):  
Chris Noonan
Keyword(s):  
United States ◽  
European Union ◽  
New Zealand ◽  
Consumer Welfare ◽  
Case Law ◽  
The United States ◽  
The Body ◽  
The European Union ◽  
Distinctive Features ◽  
Starting Price

Many cartels do not directly fix the price of products. Instead, the participants may agree on a starting price for negotiations or the price of a component of the overall price. Antitrust investigations reveal that cartel agreements are also often very imperfectly implemented. Antitrust law in the United States and the European Union has typically taken a robust approach to these practices even where economic analysis might be unable to show that such practices always or almost always harm consumer welfare. The decision of the New Zealand Supreme Court in Lodge Real Estate Ltd. v. Commerce Commission offers a New Zealand perspective on the concept of a price-fixing agreement and imperfect collusion. The Court, this article argues, reached the correct decision in Lodge. The decision, however, evidences a pragmatic judgment, rather than the confident deployment of economic learning or foreign case law within the statutory framework of the Commerce Act 1986. The language of sections 30 and 30A of the Act was borrowed from an Australian statute, which in turn had attempted to capture the state of United States price-fixing law in the 1970s. A more formalistic and pre-Chicago approach to antitrust is evident in the language, much of which was inspired by United States v. Socony-Vacuum Oil Co. The case also highlights some of the distinctive features of the competition law in New Zealand. The reluctance to develop to guide in the application of the general provisions of the Commerce Act and requiring a demonstration of an effect on price on the facts may mark a departure from the body of pricing case law in the United States and the European Union and risks undermining the per se prohibition of cartel conduct in the Commerce Act. Without the same depth and breadth of cartel case law, the adoption of a more flexible approach to anticompetitive agreements evident in some decisions in the United States and the European Union could have different effects in a smaller jurisdiction.

Thinking About Scots Law

1996 ◽  
Vol 1 (1) ◽  
pp. 3-24 ◽  
Author(s):  
Alan Rodger
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
British Empire ◽  
United States Of America ◽  
Case Law ◽  
The United States ◽  
Memorial Lecture ◽  
University Of Edinburgh ◽  
The University

This article is the revised text of the first W A Wilson Memorial Lecture, given in the Playfair Library, Old College, in the University of Edinburgh, on 17 May 1995. It considers various visions of Scots law as a whole, arguing that it is now a system based as much upon case law and precedent as upon principle, and that its departure from the Civilian tradition in the nineteenth century was part of a general European trend. An additional factor shaping the attitudes of Scots lawyers from the later nineteenth century on was a tendency to see themselves as part of a larger Englishspeaking family of lawyers within the British Empire and the United States of America.

ANALISIS YURIDIS NORMATIF PUTUSAN PERKARA MAHKAMAH AGUNG KONSTITUSI RI No. 004/PUU-II/2004

2013 ◽  
Vol 7 (1) ◽  
pp. 7
Author(s):  
Doni Budiono
Keyword(s):  
The Body ◽  
Supreme Courts ◽  
Military Justice ◽  
State Administration ◽  
The Supreme Court ◽  
Directorate General ◽  
The Government ◽  
Government Rules ◽  
The Right ◽  
Tax Court

The  authority  of justice in Indonesia  is executed by  the Supreme Courts and  the  justice  boards/body under the Supreme Courts, including  the general  justice, religious affairs justice, military justice,  state administration  justice,  and  the Constitution Court. According to  certainty in  the Act of  Tax Court, Article1, clause  (5),  tax  dispute   refers to the legal dispute arising in the  taxation  affairs between the  tax payer or the  body  responsible for the  tax with   the government   executives  ( Directorate General of Tax) as the consequence of   the issue of  the decree for the  appeal  to the Tax  Court in accordance with the  tax Act, including the  charge  against the  execution of collection   in accordance with the  Act of Tax Collection by force. The  formation of Tax Court is  designed by  the Executives, in this case, the  Department of Finance, specifically  the Directorate   General  of Tax  which has the right to issue  law  more technical about  tax accord to Article 14,  letter A,  President Decree  no. 44  year 1974,  concerning the  basic  organization of the Department.  Based on  it,  it  is clear that  in addition to execute the government  rules and policy,  this body  has to execute judicial   rules and policy. This is against the  principles of  Judicative  Power/Authority in Indonesia,  which   clearly states that this body  should be under the Supreme Court.   Therefore. It is suggested that   the Act  No UU no.14 Year 2012 concerning  Tax Court   be revised  in accordance with the system of  Power Division  of Justice  as  stated in 45 Constitutions.

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