Tony Infanti (Pitt) has published his essay “Dissecting O’Donnabhain” in the March 15, 2010 issue of Tax Notes. Here is the abstract:
In O’Donnabhain v. Commissioner, a sharply divided Tax Court allowed a medical expense deduction for some costs related to sex reassignment surgery. This short commentary examines the opinions in the case and concludes that the taxpayer’s victory rings hollow.
The abstract doesn’t convey the full extent of Professor Infanti’s hard-hitting (and spot-on) analysis. Here’s an excerpt from the essay:
Reading Judge Gale’s opinion for the majority, the words “cautious,” “clinical,” and “detached” immediately come to mind. * * * This firm and deliberate grounding in extant authority seems designed to lend the decision a feeling of natural development or inevitability, despite its admitted novelty. * * *
Notwithstanding apparent sympathy for the taxpayer, Judge Gale’s treatment of the claimed medical expenses deduction is as cold and antiseptic as the operating room where O’Donnabhain’s sex reassignment surgery took place. * * * In fact, Judge Gale’s attempt to thoroughly prepare for appellate court scrutiny seems to have taken things too far for Judge Holmes, who concurred with the majority’s decision. * * * Judge Holmes seems altogether uncomfortable with having to decide this case. He openly despairs of the ”crash course on transsexualism that this case has forced on us.” Curiously, this appears to be the first use of the phrase “crash course” in a U.S. Tax Court decision. Why haven’t Tax Court judges complained before about being “forced” by a taxpayer to get a crash course in the workings of a specific business or industry or of a complex business or financial transaction? What ever happened to celebrating tax law’s close connection with the diversity of taxpayers’ life experiences? Perhaps Judge Holmes needs to be reminded that he is paid to decide tax issues faced by all taxpayers and not only those with whom he feels comfortable.
(Emphasis added; citations omitted.)
Professor Infanti’s full essay is available here. I recommend it to anyone interested in judicial reasoning, critical theory, taxation or gender issues.