This article first appeared in the October 6, 2014 edition of Tax Notes.
In a rare call for amicus briefs, this February the Tax Court sought the public's input on an issue of first impression: the tax treatment of payments received for the sale of human eggs.1 Although novel from a tax perspective today, egg donations have been big business since the 1980s and are vital to the multibillion dollar fertility industry.2 Thus, the outcome of the case will have far-reaching effects on this industry and its many stakeholders and will provide needed guidance in a murky area of tax law. Further, the decision could settle the law across the board for all bodily donations and resolve decades-old tax questions for both donors and clinics.
In the pending case, Perez v. Commissioner,3 the taxpayer received $20,000 in exchange for her eggs from a fertility clinic, which issued her a Form 1099. The IRS sent her a notice for failing to include the payments in her gross income. The taxpayer challenged the notice, arguing that the amount was excludable as payment for pain and suffering.
In his order denying the IRS's motion for partial summary judgment, Judge Mark V. Holmes observed that this is "potentially a precedent-setting case" and an important legal issue before the court.4 After trial, Holmes issued an order seeking amicus curiae briefs to be filed by May 9, 2014, to address this novel issue.5 Law professors Bridget J. Crawford, Lisa Milot, and Timothy M. Todd Jr. each filed briefs,6 as did the Center for the Fair Administration of Taxes.7
This section will shed light on the nuanced issues and arguments to better understand why the Tax Court has approached this question with caution. It will proceed with a brief analysis of both sides of the argument, looking only to the plain language of the code and regulations.
1. 'This thing is like an onion. The more layers you peel, the more it stinks.'8 The first question to resolving the issue is obviously one of inclusion: Should the payment received in exchange for eggs be included in gross income? Although no court has held on the taxability of payments specifically for eggs, courts have held that payments received for another type of bodily property, plasma, are includable in gross income.9 The extent to which those decisions are persuasive authority leads to other questions: Are plasma sales sufficiently analogous to egg sales? Do any medical or biological distinctions between the two make a difference from a tax perspective?
If the payments are includable in gross income, the next question is one of characterization: are the payments in exchange for services rendered by the taxpayer, or is it a sale of property? If the latter applies and the payments are sale proceeds, more questions arise: Are eggs a capital asset, or are they inventory? If the eggs are a capital asset, what is the taxpayer's basis in them, and what is her holding period?
Finally, how should the taxpayer treat expenses related to the payments? Because the service or product is of a personal nature, how fine is the line between deductibility under section 16210 or 21211 and nondeductibility under section 262?12 Which expenses are attributable to producing eggs and which are attributable to simply living? If the expenses can be attributable to both, how should they be allocated between deductibility and nondeductibility? And if the eggs are deemed to be a capital asset, what expenses may be capitalized and added to the basis?
How to tax payments in exchange for human eggs is complicated and may be better answered with a flowchart of possible scenarios. In the next two subparts, the arguments will be kept simple. Based on a strict application of the code and regulations, I will analyze only whether the payments should be included in gross income.
2. Inclusion argument: Income from whatever source derived. One can argue that payments received for the sale of eggs fall within the broad definition of gross income provided by the code and regulations: all income from whatever source derived unless excluded by law.13 No section specifically excludes them; therefore, they are likely includable in gross income.
3. Exclusion argument: Payments for pain and suffering. Although no specific income exclusion applies, egg donors have argued that the payments they receive for their eggs are for pain and suffering. Thus, the payments would be excludable from gross income under section 104.14 However, the section and related regs raise a question. Section 104(a)(2) excludes from gross income damages received on account of personal physical injuries or physical sickness, whether by suit or agreement.15 The regs define damages as an amount received through prosecution of a legal suit or action or through a settlement agreement entered into in lieu of prosecution.16 Unless egg donors receive the payments by means of a lawsuit, excluding them does not hold water.
B. Existing Framework: Case Law, IRS Guidance
Although no case or IRS pronouncement has addressed the sale of human eggs, there is an existing legal framework -- including a Tax Court decision -- for the sale of another type of bodily property: blood plasma. From a strictly tax perspective, that guidance should be persuasive considering both eggs and plasma fall under the same umbrella of bodily property. If donating eggs is considered a service, plasma and eggs could hardly be distinguished -- they are both extractions of bodily matter. To illustrate, a miner's wages would be taxed the same whether he extracted gold or copper from a mine. And if donating eggs is a sale of property, eggs and plasma are simply products from the same factory, the human body. For example, cellphones and televisions produced by one factory are both classified as manufactured goods, irrespective of their different costs and functions. Thus, treating the two types of bodily property differently from a tax perspective is difficult to justify.
1. The courts. There is sparse case law that addresses the taxation of donations of bodily property. The following cases answer the question of how to tax blood plasma, and their reasoning may play a pivotal role in the outcome in Perez.
a. Garber I. The Fifth Circuit in United States v. Garber (Garber I) addressed whether income from the sale of a person's own blood plasma is taxable.17 Similar to the taxpayer in Perez, the taxpayer in Garber I argued that the income was excludable under the personal injury exclusion in section 104.18 The court rejected that argument and found that an essential element of that exclusion is that the income must derive from a tort claim against the payer.19 The court interpreted section 104 to exclude only payments that make the taxpayer whole again because of a wrongful loss from tortious conduct.20 The court held that the payments from the sale of plasma did not result from any tort liability and that the mere presence of pain and discomfort did not invoke section 104.21
After dispensing with the taxpayer's exclusion argument, the court held that the payment was gross income under section 61.22 In reaching its decision, the court reasoned that the taxpayer negotiated the contract based on an understanding of the pain involved and was compensated accordingly.23 Although the court did not determine the income's characterization, Judge Charles Clark in his dissenting opinion argued that he was "convinced Mrs. Garber was not rendering personal services," but rather selling "tangible property in the form of a constituent part of her blood."24 He further contended that the sale of her plasma was no different from the sale of any other part of her body, adding, however, that he had "no idea what basis a taxpayer would have when selling a part of his or her body."25
b. Garber II. On rehearing en banc, United States v. Garber (Garber II) focused on the income's characterization.26 The government's expert testified that the payments were either income from services or, alternatively, proceeds from the sale of a product and that the taxpayer had a zero tax basis in the plasma.27 Under either of those scenarios, the tax result is the same: the payment is ordinary income. The taxpayer's expert asserted that the payments were proceeds from the sale of a capital asset -- the human body being a "kind of capital asset" -- in which the taxpayer had a fair market value basis.28 That expert reasoned that the plasma, as a part of the human body, cannot be subject to a value calculation but must be valued at its market value, thereby resulting in no gain to the taxpayer.29 A third expert contended that the sale of the plasma was taxable services income, relying on a revenue ruling30 that said a donation of blood was a service, not a product, for purposes of determining a charitable contribution.31
The court found both income characterizations as either services or sale proceeds to be persuasive. It found the taxpayer's efforts related to the plasma extraction laborious and could thus be compared to the performance of a service.32 The transactions, however, also looked like a sale; the plasma was tangible property, and the size of the payment depended on the quality of the plasma extracted, not the time spent or pain incurred by the taxpayer.33
The court was equally ambivalent on the taxpayer's potential basis in the plasma. In supporting a zero basis, the court found no evidence of "any original cost" in the plasma.34 The court then said the basis "may well be" its FMV and provided no further explanation.35 Instead of deciding the issue, the court reversed and remanded the case for retrial based on procedural grounds.36
In a concurring opinion, Judge James Hill maintained that the payments constituted services income and said that the court had not resolved the issue.37 Both Judge Ainsworth and Judge Tjoflat dissenting opinions attacked the majority's failure to decide the tax issue, opining that if the majority thought the payments weren't taxable, it should have dismissed the case.38
Judge Ainsworth's dissent framed the issue in terms of section 61's "comprehensive and broad" definition of income and contended that the payments were clear accessions to wealth.39 It attacked the majority's "misunderstanding between the concepts of value and basis" and found the taxpayer's basis in the plasma to be the "cost of its constituent parts, which in the case is zero."40 In a footnote, the dissenting opinion hinted at the possibility of deducting the cost of "special incidental expenses required to promote plasma regeneration such as vitamins."41
Garber I emphasizes that the section 104(a)(2) personal physical injury exclusion from gross income is not applicable to payments received in exchange for plasma and, thus, that those payments are includable in gross income. Although reversed and remanded on procedural grounds, Garber I's holding on inclusion in gross income may still be good law.
Further, Garber II never said that the payments were not taxable. Instead, that court went to great lengths in analyzing the income characterization of the payments. If the majority in Garber II believed the payments were not taxable, the characterization discussion would have been moot, and as the dissent stated, the case would have been dismissed, rather than remanded for retrial.42 Finally, Garber II left the potential basis calculation open to interpretation because it did not decide whether the plasma had a zero basis, FMV basis, or something in between.43
c. Green. The Tax Court addressed a similar issue one year later in Green v. Commissioner.44 The court was tasked with deciding whether the taxpayer could deduct expenses related to payments for plasma extractions.45 In answering the question, the court had to determine whether the payments were includable in gross income and, if so, their proper characterization, as well as whether the taxpayer's activity rose to the level of a trade or business to allow the deductions under section 162.46
First, the court held that the taxpayer had gross income from the payments.47 The payments were "undeniable accessions to wealth" not subject to any exclusion in the code.48 Turning to its characterization, the court focused on the taxpayer's activity -- whether her efforts were the performance of a service or the sale of property held for sale to customers in the ordinary course of business.49 Based on those two possible characterizations, capital gain treatment was ruled out because there was no exchange of a capital asset.50
The court determined that the payments were for a sale of a tangible product, rather than a service, because the lab played the decisive role in extracting the taxpayer's plasma.51 In finding that she performed "no substantial service," the court observed that the taxpayer "did little more than release the valuable fluid from her body, the plasma was withdrawn in a complex process by the equipment of the lab."52 The court analogized the transaction to a "sale of product by a manufacturer to a distributor or a sale of raw materials by a producer to a processor."53 The business relationship between the taxpayer and the lab was characterized as "the sale of a tangible raw material to be processed and eventually resold by the lab."54
Finally, the court found that the taxpayer was engaged in a trade or business based on her ongoing commitment to plasma extractions and profit motive.55 The taxpayer sold her plasma on a regular basis for seven years, an activity that required "daily attention to her special diet and her weekly or bi-weekly visits to the extracting laboratory."56 That level of dedication over the course of several years demonstrated a profit motive.57 The court held that the taxpayer was actively engaged in the sale of plasma to the lab for profit.58
To deduct her expenses under section 162, the taxpayer had to prove her expenses were ordinary and necessary to her activity of selling plasma.59 The court disallowed her claimed business deductions of medical insurance premiums, finding that the personal nature of maintaining one's health limits the taxpayer to only an itemized deduction under section 213.60 Next, the taxpayer claimed business deductions for high-protein food and diet supplements.61 Regarding those typically nondeductible personal items, the court held that only the "additional expense, beyond that necessary for her personal needs" was deductible under section 162.62 The court allowed a full deduction for the diet supplements, but allowed only a one-third deduction of her "special food" expenses.63 The court allowed a business deduction for her travel expenses from her home to the lab because they were "solely for business purposes, not for her personal comfort or convenience."64 Instead of nondeductible commuting expenses, the travel expenses were more analogous to shipping or transportation costs because the taxpayer was "the container in which her product was transported to market."65
d. Lary. The Tax Court in Green finished the job Garber I and Garber II started. Lary v. United States66 followed Green's holding and rationale and held that a charitable donation of blood was a contribution of property, not services.67 The court, however, disallowed the charitable deduction, finding that the taxpayer had no basis in his own blood.68
2. The IRS's position on bodily property. Although the IRS has not provided any specific guidance on the taxation of human eggs, it has promulgated guidance regarding other types of bodily property: plasma and breast milk. As discussed, that guidance should be persuasive because eggs, plasma, and breast milk fall under the category of bodily property.
a. IRS revenue ruling: Donation of blood is a personal service. The IRS's first stab at characterizing bodily property came in Rev. Rul. 53-162,69 which addressed whether the FMV of a blood donation was deductible as a charitable contribution. In disallowing the deduction, the IRS found that the donation was "analogous to rendering a personal service by the donor rather than a contribution of 'property.'"70
b. IRS general counsel memorandum: Donation of breast milk is a donation of property. A couple of decades later, GCM 36418 (Sept. 15, 1975) addressed the issue of whether a taxpayer could claim a charitable deduction for the donation of another bodily property: breast milk. Recognizing that breast milk is a tangible and transferable marketable commodity, the IRS reasoned that the contribution was "clearly a donation of property."71 Finally, the IRS found that milk is a capital asset because it does not meet any of the exceptions under section 1221 (defining a capital asset), and the taxpayer's holding period began at the time of withdrawal.72
However, because of the "similarities between the donation of mother's milk and the donation of blood," there was an obvious conflict with Rev. Rul. 53-162, which found blood to be a donation of services.73 To reconcile the difference, the IRS overruled Rev. Rul. 53-162 by stating that "the decision to disallow a charitable contribution deduction for a blood donation was controversial when it was made and we doubt whether the same decision would be made today."74 GCM 36418 went on to attack Rev. Rul. 53-162's rationale as "unrealistic and out-dated."75
The IRS's recognition and resolution of the conflict between Rev. Rul. 53-162 (donating blood is a service) and GCM 36418 (milk is property) is important to the analysis of the tax treatment of egg sales. The IRS recognized that donations of bodily property, regardless of their form as blood or milk, should be treated the same from a tax perspective. Thus, it had no choice but to resolve conflicting guidance that treated two types of bodily property differently. And in doing so, the IRS invalidated its own revenue ruling in favor of a pro-taxpayer position. The IRS's bold actions support the argument that bodily property, regardless of its form, should be treated the same for tax purposes. Therefore, the tax treatment of eggs may not be as novel after careful consideration, and the Tax Court may have persuasive precedent in Green.
c. Going Green. In a subsequent general counsel memorandum, the IRS formally acquiesced to Green's holding that plasma payments resulted in gains from the sale of property, rather than services income.76 The IRS acknowledged again that Rev. Rul. 53-162 was inconsistent with GCM 36418 and that its rationale should be modified to comport with its acquiescence to Green.77 Finally, the IRS in a private letter ruling relied on Green in advising the taxpayer that amounts received for the sale of blood are includable in gross income.78
C. Inclusion and Characterization Analysis
This section will apply the first two sections to analyze whether payments for the sale of eggs are includable in gross income. Next, a two-part characterization analysis will explore both the services income and sale proceeds options. Finally, the sale proceeds characterization will be analyzed as either gains from capital gain property or ordinary income property.
1. Inclusion in gross income. Payments from egg sales should be included in gross income because they fall within section 61's comprehensive definition of gross income and fail to qualify for section 104's exclusion. The code and regulations limit section 104's scope to plaintiffs in a legal action.79 An egg donor is a party to a contract, not litigation. The taxpayer voluntarily incurs the physical injury for payment. That payment enriches her instead of making her whole again after a loss from a tort. Therefore, those payments are gross income to the taxpayer.
Under the taxpayer's reasoning, any compensation related to a physical task could be excluded from gross income. Professional athletes would be the first to take advantage of that application of the section 104 exclusion. The taxpayer's exclusion argument goes against both the letter and spirit of the law that provides a tax break to those who have been injured as a result of tortious conduct.
Further, a contract between a fertility clinic and an egg donor that stipulates the payment is for pain and suffering (or any other nontaxable distinction) is not controlling for income tax purposes. A private contract cannot unilaterally preempt the code.80 It must reflect the factual circumstances surrounding the payment and the realities of the agreement,81 which in this case point to a bargained-for exchange that results in a clear accession to wealth to the donor.
Finally, the inclusion of those payments in gross income promotes equal and uniform taxation. A taxpayer who donates her eggs is compensated for her efforts and ability to produce them. That is not to trivialize the act, but merely to recognize that it's a taxable transaction like any other activity when one uses her efforts and ability for economic gain. Excluding that income would be unfair to other taxpayers who earn income through more traditionally taxable ways, and it would frustrate the normative goal of objective taxation. Ultimately, we all use our bodies in some manner to make money, whether it is selling our own eggs or otherwise.
2. Income characterization of egg payments. The more challenging question is how to characterize the payments received in exchange for eggs. As shown in Section B, both the courts and the IRS have gone back and forth between characterizing the payments as services income or proceeds from the sale of property.
a. Services income. Donating eggs is laborious. Egg donors typically spend about 60 hours for screening, testing, and medical appointments throughout the process.82 That process consists of two phases: stimulation of egg production and egg retrieval.83 During the first phase, a donor must inject herself daily with drugs that manipulate her menstrual cycle and stimulate egg production.84 In the second phase, the eggs are surgically removed under conscious sedation.85 Based on that rigorous schedule, one could argue that the donor is working for the clinic, which would support a services income characterization.
The level of participation by the taxpayer in the process weighs heavily in the characterization analysis. The court in Green held that the taxpayer did not perform a service because the lab extracted the eggs using its equipment.86 Although a donor taxpayer must inject herself daily, the clinic also uses a substantial amount of its own resources -- medical staff and equipment -- to facilitate the extraction.
Another factor that could influence how the payments for eggs are characterized is how the payment amount is calculated. If the payment is a flat amount and does not depend on the quality or quantity of eggs produced, it would provide a stronger argument for the performance of a service rather than the sale of a product. That arrangement would demonstrate that the donor is being paid only for her time and efforts, regardless of the end product.
b. Sale of property. The payments could be characterized as proceeds from the sale of property. If it is deemed a sale of property, the eggs would need to be further classified as either capital gain property or ordinary income property. Looking to how the IRS and Tax Court classified other types of bodily property, we see that the IRS deemed breast milk to be a capital asset,87 but that the Tax Court in Green held that plasma is ordinary income property.88
All property is considered a capital asset unless an exception under section 1221 applies.89 The exception for inventory or property held by the taxpayer primarily for sale to customers in the ordinary course of business may apply to human eggs.90 Like plasma in Green, the sale of eggs is analogous to a sale of a product by a manufacturer to a distributor or a sale of raw materials by a producer to a processor. Under that logic, eggs could be considered inventory and, thus, ordinary income property.
If the eggs are considered a capital asset, the holding period will likely begin once they are surgically removed. The taxpayer's basis will be zero, which equals the taxpayer's cost in her own eggs.91 Expenses paid in connection with the creation of that capital asset could be capitalized and added to the taxpayer's basis.92 Those expenses could include any special incidental costs required to promote egg production, but the taxpayer would have an uphill battle proving the costs are not merely personal expenses.
D. Recommendation for Tax Treatment
Arguments may be made for the various inclusion and characterization outcomes, but they are all moot. The Tax Court in Perez should follow its own precedent in Green and apply the rationale for plasma to eggs. A sale of plasma and a sale of eggs should be treated the same from a tax perspective because they are both sales of bodily property. Both transactions involve a physical commitment by the taxpayer, a medical surgery, and an exchange of bodily property -- one that is life-saving and the other life-creating. Biological distinctions may exist between plasma and eggs, and the extraction processes may differ, but from a tax perspective those are distinctions without a difference. Thus, like plasma, payments in exchange for eggs should be included in gross income as gains from the sale of ordinary income property.
The Tax Court in Perez should hold that the sale of all types of bodily property should be taxed the same. The case is an opportunity for the court to clarify this murky area of the tax law and resolve future confusion. Further, it will advance the goal of objective taxation by ensuring that donors of one type of bodily property are not arbitrarily favored over donors of another type. As medical technology advances, those issues will become only more convoluted. Therefore, now is the time for the Tax Court to resolve the question.
The taxation of payments for the sale of eggs poses a complex problem for the Tax Court to solve. The complication, novelty, and importance of this issue are manifested by Judge Holmes's call for amicus briefs. Fortunately, the court can consult Green for guidance, as well as the four amicus briefs filed by concerned experts in the field.
1Perez v. Commissioner, No. 9103-12 (2014).
2 S. Lochlann Jain, "We Must Regulate Reproductive Technology," The Huffington Post, Feb. 23, 2012, available at http://www.huffingtonpost.com/s-lochlann-jain/ivf-reproductive-technology_b_1296517.html.
3Perez, No. 9103-12.
4 Order Denying Respondent's Motion for Partial Summary Judgment, Perez, No. 9103-12 (filed Nov. 7, 2013), available at https://ustaxcourt.gov/UstcDockInq/DocumentViewer.aspx?IndexID=615000.
5 Order for amicus curiae briefs to be filed by May 9, 2014, Perez, No. 9103-12 (filed Feb. 10, 2014), available at https://ustaxcourt.gov/UstcDockInq/DocumentViewer.aspx?IndexID=620476.
8 NBC, "The Soul Mate," Seinfeld (1996) (referring to a mystery surrounding a damaged briefcase).
9See infra Section B.1.
10 Section 162 (trade or business expenses).
11 Section 212 (expenses for production of income).
12 Section 262 (personal, living, and family expenses).
13 Section 61; reg. section 1.61-1(a).
14 Section 104 (compensation for injuries or sickness).
15 Section 104(a)(2).
16 Reg. section 1.104-1(c).
17United States v. Garber (Garber I), 589 F.2d 842, 847 (5th Cir. 1979), rev'd and remanded on procedural grounds, 607 F.2d 92 (5th Cir. 1979) (en banc).
22Id. at 848.
23Id. at 847.
24Id. at 850 (Clark, J., dissenting).
26United States v. Garber (Garber II), 607 F.2d 92 (5th Cir. 1979).
27Id. at 94-95.
28Id. at 95.
30See infra Section B.2.a.
31Garber II, 607 F.2d at 96.
32Id. at 97.
36Id. at 100.
37Id. (Hill, J., concurring).
38Id. at 101-102 (Ainsworth, J., dissenting); id. at 110 (Tjoflat, J., dissenting).
39Id. at 103 (Ainsworth, J., dissenting).
40Id. at 104 (Ainsworth, J., dissenting).
41Id. at 116 n.3 (Ainsworth, J., dissenting).
42Id. at 101, 110. "The conviction is reversed and the case remanded for a retrial, a conclusion which thereby impliedly decides that defendant Garber's income was taxable though it holds that the question of willfulness was not properly submitted to the jury by the district court." Id. at 101 (Ainsworth, J., dissenting). "The majority apparently assumes that the sales proceeds are taxable income and that the indictment is sufficient, for the opinion hinges on an evidentiary question that would otherwise never arise." Id. at 110 (Tjoflat, J., dissenting).
43Id. at 97.
44 74 T.C. 1229 (1980).
45Id. at 1232.
46Id. at 1232-1236.
47Id. at 1223.
49Id. at 1233-1236.
50Id. at 1233-1234.
51Id. at 1234.
55Id. at 1235.
57Id. at 1235.
60Id. at 1236.
62Id. at 1236-1237.
63Id. at 1237.
64Id. at 1238.
66 787 F.2d 1538 (11th Cir. 1986) (per curiam).
68Id. at 1540.
69 Rev. Rul. 53-162, 1953-2 C.B. 127.
73Id. The IRS further remarked that a donation of breast milk is analogous to a donation of blood. See Rev. Rul. 53-162, 1953-2 C.B. 127.
76 GCM 38730 (May 22, 1981) ("The Service argued that such sale should be cast as a sale of services, a position supported by Rev. Rul. 162, 1953-2 C.B. 127. The Tax Court rendered an opinion adverse to the Service's argument and held that the sale of blood is the sale of a product. We have considered the case and concur with the Tax Court opinion.").
78 LTR 8814010.
79See section 104(a)(2); reg. section 1.104-1. See also Downey v. Commissioner, 97 T.C. 150, 160 (1991) (finding "section 104(a)(2) excludes only damages received upon the prosecution of tort or tort-type claims").
80See Robinson v. Commissioner, 102 T.C. 116, 129 (1994).
82 The Medical Procedure of Egg Donation, available at http://www.stanford.edu/class/siw198q/websites/eggdonor/procedures.html.
86See Green, 74 T.C at 1234.
87 GCM 36418.
88See Green, 74 T.C at 1233-1234.
89 Section 1221(a).
90 Section 1221(a)(1).
91See section 1012(a).
92See section 263(a); Commissioner v. Idaho Power Co., 418 U.S. 1, 13 (1974).
END OF FOOTNOTES