The Internal Revenue Service believes being gay is a choice, according to a lawsuit filed by a St. Petersburg gay couple who claim that is the reason they were denied tax deductions for in-vitro fertilization and surrogacy.

Joseph F. Morrissey, a professor of law at Stetson University, filed for $36,538 in medical deductions for the 2011 tax year after several attempts to have a child using fertility treatments including surrogate mothers and egg donors.

The couple was successful in their final attempt and became parents to twin boys. The deduction was associated with their use of IVF and surrogacy for the pregnancy that resulted in the twins.

According to IRS.gov, individuals may deduct expenses paid for medical and dental care for themselves, spouses and dependents. Taxpayers may deduct only the amount of total medical expenses that exceed 10% of their adjusted gross income.

“Bringing twin boys into the world took nearly four years, seven IVF procedures (including those scrubbed at the last minute for failed medical exams), three surrogates, three egg donors, two clinics and more than $100,000,” Morrissey says in the lawsuit filed in U.S. District Court in Tampa.

The IRS denied the deductions, stating that the medical services must be provided to the taxpayer, his spouse or dependent, according to the lawsuit.

Morrissey appealed the decision. The IRS denied his appeal in December 2014 claiming that choosing to be homosexual is not the same as being infertile.

“[Plaintiff] cannot engage in heterosexual intercourse to conceive children and cannot do that with his chosen life partner. Doing so would also require plaintiff to violate his monogamous relationship and marriage engagement,” the lawsuit says. “Despite the IRS’s backward and archaic thinking, plaintiff is not homosexual by ‘choice.’ ”

The couple moved to Florida in 2004 when Morrissey took his job at Stetson. His fiancé, who is unnamed in the lawsuit, was a middle school math teacher in Pinellas County until the birth of their twins when he became a stay-at-home dad.

The tax code argument is just one of many LGBT activists have fought to gain equal rights within their relationships and families here in Florida. A law prohibiting adoption by gay people in the state of Florida until it was ruled unconstitutional in 2010 and same-sex marriage was made legal less than a year ago.

Watermark reached out to Morrissey for an interview but he did not respond by press time.

An IRS spokesman stated that the agency could not comment on the pending lawsuit.

Morrissey is seeking a judgement from the IRS in the amount of $9,539, which is the amount of the tax refund he would have received, plus attorney fees.


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