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Germany: Court Rules Costs for In Vitro Fertilization of Infertile Woman in Same-Sex Partnership Are Tax-Deductible

(Jan. 25, 2018) In a decision published on January 3, 2018, the German Federal Fiscal Court (Bundesfinanzhof, BFH), the supreme court in tax and customs matters, held that costs for in vitro fertilization (IVF) incurred by an infertile woman in a same-sex partnership are tax-deductible, reversing a lower court ruling. (BFH, Oct. 5, 2017, Docket No. VI R 47/15, BFH website (in German); Einkommensteuergesetz [EStG] [German Income Tax Act], Oct.8, 2009, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3366, 3862, as amended, § 33, ¶ 1, German Laws Online website.)

Facts of the Case

In 2011, the petitioner, an infertile woman in a same-sex partnership, had an IVF treatment using sperm cells from an anonymous sperm donor. She tried to deduct the costs of approximately €8,500 (about US$10,403) as extraordinary expenses on her tax return, but the claim was rejected by the tax authorities and the fiscal court of first instance. (BFH, Docket No. VI R 47/15, at 1 & 2.)

Section 33, paragraph 1 of the German Income Tax Act provides that expenses are deductible if they qualify as extraordinary and inevitable. Expenses are extraordinary if they are higher than the expenses of the majority of taxpayers with the same income level, assets, and marital status. Expenses are inevitable if the taxpayer cannot avoid them for legal, factual, or moral reasons; they are necessary given the circumstances; and do not exceed an appropriate amount. (German Income Tax Act § 33, ¶ 2.)

The tax authority determined that the petitioner’s IVF treatment was not in compliance with the (Model) Professional Code of Conduct for Physicians and consequently denied her claim. (BFH, Docket No. VI R 47/15, at 3.) The Professional Code of Conduct for Physicians contains rules set forth by the German Medical Association on ethical and professional standards physicians must comply with. The rules of the (Model) Professional Code and the non-legally binding commentary must be taken into account in cases of IVF. (Id. at 20; (Model) Professional Code for Physicians in Germany [MBO-Ä 1997], 2011, as amended by the 114th German Medical Assembly 2015 in Frankfurt am Main.)

The fiscal court of first instance rejected the petitioner’s tax-deduction claim and held that the costs were not inevitable because her childlessness was due not only to her infertility but also to her decision to be in a same-sex partnership, in which natural procreation is not possible. (BFH, Docket no. VI R 47/15, at 4.) The petitioner appealed the ruling of the lower court to the Federal Fiscal Court.

Decision

The Federal Fiscal Court reversed the decision of the lower court and granted full relief to the petitioner. (Id. at 8.)

The Federal Fiscal Court has previously held that infertility is a medical condition, irrespective of marital status, which can be treated with IVF. Even though IVF does not remedy the cause of the infertility, it can mitigate or overcome its consequences—childlessness—which is sufficient to qualify it as a necessary medical treatment for tax purposes. (Id. at 15.) However, the IVF must be performed in accordance with the Professional Code of Conduct for Physicians and German law, in particular the German Embryo Protection Act. (Id. at 12.)

The Court stated that the IVF at issue—IVF with an anonymous sperm donor—is in compliance with German law, as well as with the Professional Code of Conduct and its nonbinding commentary. The rules of the Code of Conduct intend to protect the child’s well-being, which traditionally meant guaranteeing that the child would have a stable relationship with both parents. Accordingly, the Code limited the possibilities of IVF with anonymous sperm donors, prescribing that such IVFs be limited to married couples or couples in stable heterosexual relationships. In recent years, however, societal views have changed in this regard, and the use of anonymous sperm donors in IVF treatments of women in same-sex partnerships is no longer expressly prohibited. (Id. at 21.)

The Court concluded that IVF expenses are inevitable, medically indicated expenses that can be as burdensome for a same-sex partnership as for a heterosexual partnership and are therefore covered under section 33, paragraph 1 of the German Income Tax Act. (Id. at 24.)

Prepared by Felicia Stephan, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.