Artificial insemination also reduces tax on lesbian couples

Artificial insemination also reduces tax on lesbian couples

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BFH recognizes costs as an extraordinary burden
An infertile woman's expenses for artificial insemination can also be claimed as an extraordinary tax burden if the woman lives in a lesbian partnership. This was decided by the Federal Finance Court (BFH) in Munich in a general judgment published on Wednesday, January 02, 2018 (Az .: VI R 47/15). As with heterosexual couples, there is also a medical “predicament”.

In this specific case, the sterile lesbian applicant lives in a same-sex partnership. There was no registered partnership in the dispute year 2011.

Because of an unfulfilled desire to have children, the woman in Denmark had artificial insemination carried out with the help of donor sperm. She claimed the total cost of 8,500 euros as an extraordinary tax-reducing burden.

The tax office refused to do so. According to the guidelines of the medical professional code, doctors are not allowed to perform an artificial insemination on an unmarried woman living in a same-sex partnership.

In response to the woman's complaint, the Finanzgericht (FG) Münster also refused to relieve the tax - albeit with a different reason: childlessness here is not solely a result of infertility, but is also due to the fact that same-sex couples naturally produce a child is excluded (judgment of July 23, 2015, file number: 6 K 93/13 E; JurAgentur announcement of October 16, 2015).

The BFH now overturned this judgment and upheld the complaint. "A woman's inability to conceive is an illness, regardless of her marital status," says the Munich judgment. Artificial insemination does not cure them, but "bypasses" them. In constant case law, the BFH has therefore already recognized the costs of artificial insemination as an extraordinary burden if it is "carried out in accordance with the guidelines of the professional regulations for doctors" (most recently judgment of May 17, 2017, file number: VI R 34 / 15; JurAgentur announcement dated August 23, 2017).

The BFH has now affirmed this in a lesbian partnership. The medical professional codes admonished a certain reluctance among unmarried couples. However, in several federal states - specifically in Bavaria, Berlin, Brandenburg and Hesse - they did not oppose the treatment of children of the same sex, even for same-sex couples. It is harmless that the woman decided to go to Denmark for treatment anyway.

In addition, a "predicament to circumvent existing sterility (...) cannot be denied, even for same-sex couples," said the BFH in its now published judgment of October 5, 2017. mwo

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