Artificial insemination
Extraordinary burden
Certain expenses can be claimed as extraordinary burdens to reduce tax if they are extraordinary, necessarily incurred and are neither business expenses nor special expenses (Section 33 (1) of the German Income Tax Act/EStG).
Medical expenses
The Lower Saxony Tax Court (Niedersächsisches Finanzgericht/FG) has recognized expenses for artificial insemination as an extraordinary burden. This is subject to the condition that the treatment is carried out with the aim of remedying childlessness based on a "disease" of the woman or man. According to the court, a "chromosomal translocation with significant resulting risks and possible consequences for a child conceived naturally" is to be classified as a disease (Niedersächsisches FG, ruling dated December 14, 2021).
The case
In the case in dispute, the plaintiff's partner was highly unlikely to be able to conceive a healthy child naturally due to a chromosomal translocation. The tax office denied the tax deduction, among other things, on the grounds that in this case the predicament arose because of the existence of the partnership with the ill partner and not because of an illness of the plaintiff herself. The tax office did not consider the suffering caused by the unfulfilled desire to have a child to be an inevitability within the meaning of Section 33 of the German Income Tax Act (EStG). The court, however, saw this differently. Even without the existence of a marriage (which was the case in the dispute), the inevitability as a prerequisite for the existence of an extraordinary burden is to be transferred to the healthy partner, or partners, who are equally in a predicament, due to the overall consideration required as a result of the joint desire to have children.
Revision pending
However, this ruling, which is friendly to taxpayers, is not legally binding. The appeal proceedings before the Federal Fiscal Court (Bundesfinanzhof) are pending under Case No. 6 K 20/21.
Status: May 24, 2022
Image: Olga Gorchichko - stock.adobe.com
