The majority states that section 213(d)(9)(B) “excludes from the definition any procedure" (emphasis added) that promotes bodily function or treats a disease. See majority op. p. 52. The statutory definition, however, prescribes what is included, not excluded, from the definition of cosmetic surgery. The statute sets forth a two-part test: a procedure is cosmetic surgery if it (1) is directed at improving appearance and (2) does not meaningfully promote proper bodily function or 2 prevent or treat illness or disease. Part two of the test is disjunctive, not conjunctive. A procedure "directed at improving the patient's appearance" is cosmetic surgery if it either does not "meaningfully promote the proper function of the body" or does not "prevent or treat illness or disease." Thus, if petitioner's procedures are "directed at improving *** appearance" and "[do] not meaningfully promote the proper function of the body", they are cosmetic surgery without regard to whether they treat a disease. The majority does not address either of these prongs but, instead, asserts that these prongs are irrelevant if the procedures treat a disease. See majority op. note 30.

The majority's analysis proceeds as if the statute employs "and" rather than "or" between the "meaningfully promote the proper function of the body" and "prevent or treat illness or disease" prongs. Respondent appears to agree with this interpretation in lieu of a plain reading of the statute. In essence, the majority and respondent engage in reconstruction, rather than strict construction, of section 213(d)(9). According to their interpretation, a procedure will be treated as cosmetic surgery only if it meets all three prongs (i.e., it is directed at improving appearance, does not promote proper bodily function, and does not prevent or treat illness or disease).

Simply put, the fact that a procedure treats a disease is not sufficient to exclude the procedure from the definition of "cosmetic surgery". Indeed, to adopt the majority's reasoning and its accompanying conclusion the Court must ignore that Congress in section 213(d)(9)(A) specifically provides that the term "medical care" will include "cosmetic surgery or other

2 While "use of the conjunctive 'and' in a list means that all of the listed requirements must be satisfied * * * use of the disjunctive ‘or' means that only one of the listed requirements need be satisfied." Kim, Statutory Interpretation: General Principles and Recent Trends 8 (CRS Report for Congress, updated Aug. 31, 2008).

similar procedures" if the "surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a*** disfiguring disease." (Emphasis added.) If any procedure that treats a disease (i.e., as the majority broadly interprets that phrase), see majority op. p. 65, is automatically carved out from the definition of cosmetic surgery, then the section 213(d)(9)(A) specific exclusion, relating to procedures that ameliorate a deformity arising from a disfiguring disease, is superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (stating that it is “a cardinal principle of statutory construction' that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant."" (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))). Congress in section 213(d)(9)(A) readily acknowledges that certain procedures which treat disease may be cosmetic and ensures that these procedures will nevertheless be deemed medical care if they ameliorate a deformity. Sex reassignment surgery (SRS) and the accompanying procedures did not make the list.

Judge Halpern asserts that this analysis "disregards the rules of grammar and logic" and that De Morgan's laws dictate the majority's holding. Halpern op. p. 83. If there is a negation of the conjunction "or", De Morgan's laws convert "or" to "and". Judge Halpern's mechanical application of De Morgan's laws is not prudent. Simply put, congressional intent is not subservient to De Morgan's laws. Courts dealing with statutes that contain the negation of a conjunction have employed interpretive principles to ensure adherence to Congress' plain language. 3 In short, section 213(d)(9) must be

3

3 This tension between Congress' plain language and De Morgan's laws was evident in the interpretation of a property forfeiture statute which contained the negation of a conjunction (i.e., "without the knowledge or consent"). See 21 U.S.C. sec. 881(a)(7) (1988); United States v. 17102 Liberty Ave., 710 F. Supp. 46 (E.D.N.Y. 1989); cf. United States v. 141st Street Corporation, 911 F.2d 870 (2d Cir. 1990). Rather than applying De Morgan's laws and interpreting the statutory language to mean "without the knowledge and without the consent", the District Court followed legislative intent, adhered to a plain reading, and interpreted the language to mean "without the knowledge or without the consent". United States v. 171-02 Liberty Ave., supra at 50. The court held:

Under normal canons of statutory construction, the court must give effect to Congress' use of the word "or" by reading the terms "knowledge" and "consent" disjunctively. * * *

*** If Congress had meant to require a showing of lack of knowledge in all cases, as suggested by the Government, it could have done so by replacing "or" with "and." * * * [Id.] To apply De Morgan's laws and ignore the plain language of the statute would have been imprudent because, as one commentator accurately opined, "we have no way of telling whether the drafters of the statute intended that De Morgan's Rules apply or not". Solan, The Language of

interpreted with cognizance of the fact that this section was enacted by a Congress intent on limiting deductions for procedures directed at improving appearance and that Augustus De Morgan was not a member of the 101st Congress.

II. The Legislative History Provides No Support for the
Deduction of Petitioner's Expenses

The lack of unanimity among my colleagues may suggest that section 213(d)(9) is ambiguous and thus resort to legislative history may be appropriate. See Anderson v. Commissioner, 123 T.C. 219, 233 (2004), affd. 137 Fed. Appx. 373 (1st Cir. 2005). The sparse legislative history accompanying the enactment of section 213(d)(9) is quite illuminating. There is certainly no indication that Congress sought to preserve a deduction for expenses relating to SRS and the accompanying procedures. To the contrary, the legislative history states that Congress intended to preserve deductions relating to:

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 congenital abnormality, personal injury or trauma, or disease (such as reconstructive surgery following removal of a malignancy) ***. [136 Cong. Rec. 30485, 30570 (1990); emphasis added.]

Expenses relating to SRS and the accompanying procedures again did not make the list.

III. Even If Not Cosmetic Surgery, Petitioner's Procedures
May Be "Similar" to Cosmetic Surgery

Section 213(d)(9)(A) provides that "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." (Emphasis added.) Assuming arguendo that the majority's analysis of section 213(d)(9)(B) is correct, petitioner must nevertheless establish that SRS and the accompanying procedures are not "similar" to cos

Judges 45, 52 (1993). See generally id. at 45-46, 49–53 (discussing how courts have dealt with statutes containing the negation of “and” and “or”).

metic surgery. The majority does not expound on this issue but states:

by arguing that the hormone therapy was directed at improving petitioner's appearance and did not treat an illness or disease, respondent concedes that a "similar procedure" as used in sec. 213(d)(9)(A) is delimited by the definition of "cosmetic surgery" in sec. 213(d)(9)(B)—that is, that a "similar procedure” is excluded from the definition of “medical care” if it "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". [Majority op. note 31; emphasis added.]

This analysis of the statute is simply wrong. The term "similar procedures" is not "delimited by the definition of 'cosmetic surgery' in sec[tion] 213(d)(9)(B)". While it is arguable that it could be defined in this manner, that is not what the statute provides. "Cosmetic surgery" is defined in section 213(d)(9)(B), but there is no statutory or regulatory guidance regarding what constitutes "similar procedures". Respondent, who has the authority to promulgate guidance defining "similar procedures" and has broad latitude regarding his litigation position, inexplicably conceded this issue with respect to the hormone therapy treatment and apparently failed to make this contention with respect to the

SRS.

Section 213(d)(9)(B) provides a potentially broad disallowance of expenses relating to procedures intended to improve a taxpayer's appearance-a disallowance so broad that Congress provided exceptions set forth in section 213(d)(9)(A) to ensure that certain procedures which address deformities were deemed medical care. The parties have stipulated that petitioner's procedures did not ameliorate a deformity. Even if SRS and the accompanying procedures fail to meet the definition of "cosmetic surgery", it is arguable that these procedures are "similar" to cosmetic surgery, not "medical care", and thus not deductible.

IV. Congressional Activity, Rather Than Respondent's Litigation Laxity, Should Determine Deductibility

Apparently respondent, but not Congress, readily concedes that a procedure (i.e., directed at improving appearance but not meaningfully promoting proper bodily function) is excluded from the definition of cosmetic surgery if it treats

a disease. In addition, respondent, but not Congress, appears to concede that if petitioner's procedures fail to meet the definition of cosmetic surgery, these procedures also fail to qualify as "similar procedures". See majority op. note 31. In short, respondent fails to adhere to the plain meaning of the statute. If respondent is comfortable, however, with his current interpretation of the statute and the accompanying litigating position, I offer a word of advice "Katy, bar the door!"

WELLS, VASQUEZ, KROUPA, and GUSTAFSON, JJ., agree with this concurring in part and dissenting in part opinion.

GUSTAFSON, J., concurring in part and dissenting in part: I concur with the result of the majority opinion to the extent that it disallows a medical care deduction under section 213 for breast enhancement surgery, but I dissent to the extent that the majority allows a deduction for genital sex reassignment surgery.

Petitioner is the father of three children from a marriage that lasted 20 years. Although physically healthy, he was unhappy with his male anatomy and became profoundly so, to the point of contemplating self-mutilation. Mental health professionals diagnosed him as suffering from Gender Identity Disorder (GID). With their encouragement, he received medical procedures: In years before the year at issue here, he received injections of female hormones 1 and underwent facial surgery and other plastic surgery; and then in the year at issue he paid a surgeon about $20,000 to remove his genitals, fashion simulated female genitals, and insert breast implants. After these procedures, petitioner "passed" as female and became happier. She 2 claimed an income tax deduction for the cost of this "sex reassignment surgery" (SRS). The question in this case is whether section 213 allows this deduction.

1 In the year at issue petitioner received $382 of hormone injections. The majority allows that deduction along with the deduction for genital sex reassignment surgery. I assume that the hormone injections are "similar" to cosmetic surgery and should therefore be disallowed under section 213(d)(9)(A), but I do not further address this de minimis deduction.

2 Consistent with petitioner's preference, I use feminine pronouns to refer to petitioner in her post-SRS state. However, this convention does not reflect a conclusion that petitioner's sex has changed from male to female.