                  T.C. Summary Opinion 2001-185



                     UNITED STATES TAX COURT



              CYNTHIA S. AL-MURSHIDI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 4230-00S.                  Filed December 13, 2001.


     Cynthia S. Al-Murshidi, pro se.

     Dustin M. Starbuck, for respondent.


     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.




1
   Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue, and
Rule references are to the Tax Court Rules of Practice and
Procedure.
                                 - 2 -

     Respondent determined a deficiency of $1,432 in petitioner’s

1996 Federal income tax.    After a concession by petitioner,2 the

issue is whether section 213(d)(9) (relating to the disallowance

of certain surgical expenses) precludes a deduction for medical

expenses paid by petitioner.    Petitioner resided in Roanoke,

Virginia, at the time the petition was filed.

                             Background

     The applicable facts may be summarized as follows.

Petitioner suffered from severe obesity for a period of years

prior to 1996.    Without the aid of surgical intervention,

petitioner lost over 100 pounds.    As a result of the weight loss,

petitioner developed a mass of loose-hanging skin which spanned

the width of her abdomen and spilled over onto her upper thighs.

     Petitioner was employed as a registered nurse at the

Carilion Roanoke Community Hospital where she worked in the

emergency room.    Her duties called for frequent bending, running,

and other physical activities.    The skin mass prevented

petitioner from comfortably performing her emergency room duties.

Additionally, the mass was prone to skin breakdowns, sores,

infections, pain, and irritation.

     After the weight loss, petitioner underwent three surgeries

to remove this skin mass.    The first procedure utilized


2
   Petitioner concedes that $787 of the amount claimed as medical
expenses represents pretax payments for medical insurance and is
therefore not deductible.
                                - 3 -

liposuction to remove 12 pounds of fat from the mass.    The second

procedure removed the excess skin of the mass.    The final

procedure was conducted to remove excess fluid which had

collected between the skin and the abdominal muscles.

     The statements submitted by the plastic surgeon who

performed the surgery described the procedures as “cosmetic” in

nature.   The procedures were not covered by petitioner’s health

insurance.    Petitioner paid for the surgeries and deducted the

costs as medical expenses on her 1996 Federal income tax return.

     Respondent determined that the expenses related to these

surgical procedures were for “cosmetic surgery” of a type not

considered “medical care” and therefore were not deductible under

section 213.    The medical deductions as claimed and as allowed

are as follows:

Expense                    Amount claimed           Amount allowed

Medicine & drugs                $75                        $75
Optical expenses                240                        240
Dental expenses                 150                        150
Pre-tax insurance               787                        -0-
Doctors/hospitals             2,617                        -0-
Surgical expenses             7,691                        -0-


     The “Doctors/Hospitals” and “Surgical expenses” disallowed

by respondent both relate to the procedures discussed above.

Although these claimed expenses total $10,308, petitioner only

substantiated that she paid $7,631.28 for the disputed

procedures.    At trial petitioner introduced no evidence from
                                - 4 -

which it could be determined that she incurred greater expenses

than those substantiated.

                             Discussion

     In general, section 213(a) allows as an itemized deduction

          the expenses paid during the taxable year, not
          compensated for by insurance or otherwise, for medical
          care of the taxpayer * * * to the extent that such
          expenses exceed 7.5 percent of adjusted gross income.

Prior to 1990, it would appear that the expenses of the surgeries

petitioner had would have been allowed under section 213(a).    See

Mattes v. Commissioner, 77 T.C. 650 (1981); see also Rev. Rul.

82-111, 1982-1 C.B. 48.    In 1990, however, Congress enacted

section 11342(a) of the Omnibus Budget Reconciliation Act of

1990, Pub. L. 101-508, 104 Stat. 1388-471, that added paragraph

(9) to section 213(d).    Section 213(d)(9) provides:

          (A) In general.--The term “medical care” does not
     include cosmetic surgery or other similar procedures, unless
     the surgery or procedure is necessary to ameliorate a
     deformity arising from, or directly related to, a congenital
     abnormality, a personal injury resulting from an accident or
     trauma, or disfiguring disease.

          (B) Cosmetic surgery defined.--For purposes of this
     paragraph, the term “cosmetic surgery” means any procedure
     which is directed at improving the patient’s appearance and
     does not meaningfully promote the proper function of the
     body or prevent or treat illness or disease.

     The Senate Finance Committee report3 provides, inter alia:

3
   There was no formal report printed separately. Rather the
report of the Senate Finance Committee was printed directly in
the Congressional Record. See 136 Cong. Rec. S15629 (1990).
                              - 5 -

     The bill provides that expenses paid for cosmetic surgery or
     other similar procedures are not deductible medical
     expenses, unless the surgery or procedure is necessary to
     ameliorate a deformity arising from, or directly related to
     a * * * disfiguring disease. * * * cosmetic surgery is
     defined as any procedure which is directed at improving the
     patient’s appearance and does not meaningfully promote the
     proper function of the body or prevent or treat illness or
     disease.

     Thus, under the provision, procedures such as hair removal
     electrolysis, hair transplants, lyposuction, and face lift
     operations generally are not deductible. In contrast,
     expenses for procedures that are medically necessary to
     promote the proper function of the body and only
     incidentally affect the patient’s appearance or expenses for
     treatment of a disfiguring condition arising from a * * *
     disease (such as reconstructive surgery following removal of
     a malignancy) continue to be deductible * * *. [136 Cong.
     Rec. S15629, S15711 (1990).]

It is clear from the Senate Finance Committee report that

Congress did not intend that the expenses of all so-called

cosmetic surgeries would be nondeductible.

     Respondent contends that, since the procedures were

classified as cosmetic by petitioner’s surgeon,4 they were

cosmetic for purposes of applying section 213(d)(9).   Respondent

argues that petitioner’s skin mass is not “a deformity arising

from, or directly related to, a congenital abnormality, a

personal injury resulting from an accident or trauma, or

disfiguring disease”, and therefore, treatment for her condition

4
   Respondent also notes that petitioner’s health insurance did
not cover the surgical procedures. There may be many reasons for
this, such as the policy exempted treatment for obesity. Thus,
we do not find the lack of insurance coverage to be elucidating.
                                - 6 -

does not fall within the exception for deductible cosmetic

procedures.   See sec. 213(d)(9)(A).

     We disagree.   Petitioner was 100 pounds overweight and

suffered from morbid obesity.    Obesity is well recognized in the

medical community as a serious disease.      See National Heart,

Lung, and Blood Inst., Natl. Inst. of Health, “Clinical

Guidelines on the Identification, Evaluation, and Treatment of

Overweight and Obesity in Adults”, NIH Pub. No. 98-4083 (1998).

Furthermore, petitioner continued to suffer from the effects of

this disease in the form of the above-described skin mass that

was a deformity.    This mass was not merely unsightly, it was

prone to infection and disease and interfered with petitioner’s

daily life.

     The procedures that petitioner underwent meaningfully

promoted the proper function of her body and treated her disease.

Despite the classification given to the procedures by the

surgeon, we find that these procedures are not “cosmetic surgery”

for purposes of section 213.    Sec. 213(d)(9)(B).    Petitioner’s

deduction, however, is limited to the amount of expenses that she

substantiated.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                             Decision will be entered

                                        under Rule 155.
