                         T.C. Memo. 2000-321



                       UNITED STATES TAX COURT



         DAVID A. AND PAULA J. HENDERSON, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3863-98.                   Filed October 16, 2000.



     David A. and Paula J. Henderson, pro se.

     Julie L. Payne, for respondent.


             MEMORANDUM FINDINGS OF FACT AND OPINION

     COHEN, Judge:    Respondent determined deficiencies of $10,830

and $5,807 in petitioners’ Federal income tax for 1994 and 1995,

respectively, and an addition to tax of $2,127 for 1994 under

section 6651(a)(1).   After concessions, the issue remaining for

decision is whether petitioners are entitled to deduct

depreciation as a medical expense under section 213.
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     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                          FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

     David A. and Paula J. Henderson (petitioners) resided in

Medical Lake, Washington, when their petition was filed.

Petitioners’ son, Bradley, suffers from spina bifida and is

confined to a wheelchair.

     In 1991, petitioners purchased a van for the sole purpose of

transporting Bradley.    The purchase price of the van was

approximately $26,000.    In 1992, Bradley’s physician believed

that, due to Bradley’s increasing weight and size and his

prolonged medical condition, a wheelchair lift was necessary.

Petitioners modified the van specifically for Bradley’s medical

needs by installing an automatic wheelchair lift and raising the

roof of the van.   Such modifications cost petitioners an

additional $4,406.

     During 1994 and 1995, petitioners lived in eastern Oregon

and, on a weekly basis, transported Bradley to and from hospitals

and doctors’ appointments in Spokane and Seattle, Washington.

The specially modified van was the only means of transportation
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for Bradley.   Petitioners used two other vehicles for their own

transportation.

     The van was also used to transport Bradley to and from

school every day.    The van was used because the school bus in the

town where they lived was not equipped with a wheelchair lift.

Petitioners wrote to the superintendent of schools to request

that the school district purchase a wheelchair lift for the

school bus, but the request was denied due to the low budget of

the small community.

     Petitioners also used the van whenever they needed to take

Bradley on trips with them.   Petitioners used the van for a trip

in 1994 to drive to Missouri for a family emergency.   They

decided to take the van to Missouri in order to accommodate

Bradley’s medical condition at the time.   The doctors advised

petitioners that Bradley, who was then in a full body cast, could

not travel by air.   Petitioners also could not find a child care

person who was willing to care for a child in a body shell.

     On the recommendation of their certified public accountant,

petitioners deducted the cost of the van and the conversions at a

rate of $5,500 per year for 1991, 1992, 1993, 1994, and 1995.

Respondent audited petitioners’ 1994 and 1995 tax returns and

denied petitioners’ depreciation deduction for both years.
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                              OPINION

     The issue presented is whether depreciation is deductible as

a medical expense under section 213.     Petitioners argue that the

total cost of the van is deductible and is depreciable over

5 years as medical expense under section 213.

     Respondent concedes that petitioners’ expense of $4,406 to

convert the van to meet the medical needs of their son was

deductible for 1992, the year in which it was paid.    Petitioners

claimed medical expense deductions of $5,500 in 1992, which is in

excess of the cost of the modifications of $4,406.    Neither the

deduction taken for medical expense on petitioners’ 1992 tax

return nor the equivalent depreciation deductions taken on their

1991 and 1993 tax returns were audited or disallowed, and they

are not in issue in this case.    Respondent’s position is that

only the cost of the modifications was deductible, but, in any

event, depreciation is not an “expense paid” and, thus, is not

deductible as a medical expense under section 213.

     In general, deductions are not allowed for personal, living,

or family expenses.   See sec. 262(a).   Section 213, however,

creates an exception to this general rule and provides a

deduction for medical expenses.    Section 213 provides in part:

“There shall be allowed as a deduction the expenses paid during

the taxable year * * * for medical care of the taxpayer, his

spouse, or a dependent * * * to the extent that such expenses

exceed 7.5 percent of adjusted gross income.”    (Emphasis added.)
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Medical expense is defined as “amounts paid * * * for

transportation primarily for and essential to medical care”.

Sec. 213(d).   (Emphasis added.)

     The Court has previously addressed the issue of whether

depreciation is a deductible medical expense and held that

depreciation is not an “expense paid” within the meaning of

section 213.   See Weary v. United States, 510 F.2d 435 (10th Cir.

1975); Elwood v. Commissioner, 72 T.C. 264 (1979); Gordon v.

Commissioner, 37 T.C. 986 (1962).   In Pfersching v. Commissioner,

T.C. Memo. 1983-341, we explained our holding in language equally

applicable here:

          We have great sympathy for petitioners and their
     conscientious efforts to deal with the unfortunate
     illness of their son. We are, however, compelled to
     conclude that the van depreciation is not allowable
     because it does not meet the requirements of the
     statute. Section 213(a) allows as a deduction certain
     expenses “paid during the taxable year” for “medical
     care.” Section 213(e) [now designated 213(d)] defines
     the term “medical care” to include amounts paid for
     “the diagnosis, cure, mitigation, treatment or
     prevention of disease, or for the purpose of affecting
     any structure or function of the body.” In addition,
     it includes “amounts paid” for “transportation
     primarily for and essential to” such care.

          Depreciation is not an “expense paid” or “amount
     paid” within the meaning of section 213. Therefore,
     petitioner’s claimed deduction cannot be allowed to the
     extent that it represents depreciation on the van.
     Respondent is sustained on this issue. [Citations and
     fn. ref. omitted.]
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     We conclude that petitioners are not entitled to deduct

depreciation as a medical expense deduction under section 213 in

either 1994 or 1995.

     To reflect the foregoing and the concessions of the parties,

                                           Decision will be entered

                                      under Rule 155.
