Artificial insemination also reduces tax on lesbian couples

BFH recognizes costs as an extraordinary burden
Expenses of an infertile woman for an artificial insemination can also be taxed as an exceptional burden, even if the woman lives in a lesbian partnership. The Federal Finance Court (BFH) in Munich ruled in a ruling issued on Wednesday, 2 January 2018 (ref .: VI R 47/15). As with heterosexual couples, there is also a medical "predicament" here.

(Image: Herrndorff / fotolia.com)

In this particular case, the barren lesbian plaintiff lives in a same-sex partnership. A registered partnership did not exist in the year of issue 2011.

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

The tax office refused this. According to the guidelines of the medical profession, doctors are not allowed to carry out an artificial insemination in an unmarried woman living in same-sex partnership.

On the complaint of the woman, rejected the tax tribunal (Muenster) from the tax relief - but with a different reason: Childlessness here is not exclusively the result of infertility, but is also due to the fact that same-sex couples, the procreation of a child on a natural way was ruled out (judgment of 23 July 2015, ref .: 6 K 93/13 E, JurAgentur report dated 16 October 2015).

The BFH then overturned this verdict and granted the claim. "The incapacity of a woman is - regardless of her marital status - a disease," it says in the Munich verdict. By artificial insemination, these are not cured, but "bypassed". In consistent case-law, the BFH has therefore already recognized the cost of artificial insemination as an exceptional burden if it is carried out "in accordance with the guidelines of the professional codes for physicians" (last judgment of 17 May 2017, Az .: VI R 34 / 15, JurAgentur Report dated 23 August 2017).

The BFH has now also affirmed this in a lesbian partnership. Although the medical regulations called for a certain restraint in unmarried couples. However, in several federal states - specifically in Bavaria, Berlin, Brandenburg and Hesse - they would not have opposed the fertility treatment of same-sex couples. The fact that the woman nevertheless decided here for a treatment in Denmark, was harmless.

Moreover, a "predicament to circumvent an existing sterility (...) can not be denied even with same-sex couples," said the BFH in its now written ruling of October 5, 2017. mwo