Opinion
Docket No. 48070.
1955-03-9
VINCENT P. RING AND JANE H. RING, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Eugene H. Bruns, Esq., and Charles R. Cuntz, Esq., for the petitioners. Urban C. Bergbauer, Esq., for the respondent.
Eugene H. Bruns, Esq., and Charles R. Cuntz, Esq., for the petitioners. Urban C. Bergbauer, Esq., for the respondent.
Under the evidence, held, expenses incurred for a trip to the Shrine of Our Lady of Lourdes to seek spiritual aid did not constitute cost of medical care within the meaning of section 23(x), Internal Revenue Code of 1939.
This proceeding involves a deficiency of $1,297.16 in income tax for 1949. The issue is whether the cost of a trip to the Shrine of Our Lady of Lourdes in France is deductible as a medical expense.
FINDINGS OF FACT.
The petitioners are husband and wife and reside in Clayton, Missouri. They filed a joint return for the taxable year with the collector of internal revenue for the first district of Missouri. The husband will be referred to hereinafter as the petitioner.
On April 13, 1948, an exploratory operation was performed on the right leg of petitioner's dependent daughter Joan, then 16 years of age, by the chief surgeon for 23 years of a hospital for crippled children, to ascertain the exact nature of a tumor of the bone. The diagnosis was malignant osteogenic sarcoma.
A majority of the physicians consulted about the condition recommended amputation of the leg at the joint above the cancerous tumor, the usual procedure in such cases, to reduce chances of metastesization. The surgeon who had performed the exploratory operation was one of those of the opinion that amputation could be avoided by a complete resection of the bone, and, after his conclusion was concurred in by an orthopedic surgeon recognized by the medical profession as an authority on bone tumors, he performed such an operation on May 27, 1948.
The resection was performed by removing two inches of bone on each side of the tumor and filling the gap by sections of bone removed from the left leg. Both legs were then placed in a plaster cast from the groin to the toes. The normal time for recovery from such an operation is from a year to 18 months.
Bone tumors tend to metastesize rapidly and at times enter the blood stream. The attending surgeon was hopeful that the operation would effect a complete cure but could not be certain that it would because of a lack of a method to determine whether the malignancy had not already entered the blood stream. The recognized waiting period in the medical profession for determining whether the operation not only cured the tumor, but had prevented as metastesization a tumor elsewhere in the body, is 5 years.
On October 15, 1948, the cast was removed from the left leg and a brace was installed. The brace was removed prior to July 27, 1949. By December 1948 a rigid brace was placed on the right leg, and it was not removed until September 15, 1950, by which time Joan had completely recovered from the operation.
One of the principal recognized shrines of the Roman Catholic Church is the Shrine of Our Lady of Lourdes in Lourdes, France, hereinafter referred to as the shrine. The Catholic Church has officially recognized the performance of miracles at the shrine in the cure of physical ailments. Such recognition is not given without verification. The required conditions for recognition are registration at one of the several hospitals in Lourdes, the deposit of a certificate from the individual's home doctor, and a physical re-examination by hospital physicians to determine whether any alleged cure has occurred at the shrine. There is no prescribed time for the patient to remain at the shrine. The shrine is visited by many Catholics from all parts of the world, some of whom are seeking a cure or alleviation of a physical ailment as a miracle. Many others go there to pray for the granting of some other favor.
Petitioner and the members of his family were devout Catholics. Knowledge of the recording of miracles performed at the shrine influenced him to have Joan make a pilgrimage to the place. He had no idea that she would be benefited by a miracle, but believed that such spiritual aid as he considered was available through the ‘procedure’ there would bring about some improvement of her physical condition to supplement the care given her by the surgeon at home. Joan was of the opinion that the primary purpose of the trip to France was hope of obtaining spiritual aid at the shrine. The trip was delayed so that it would not interfere with Joan's graduation from high school.
Joan and her mother left St. Louis, Missouri, July 25, 1949, on a trip to Paris, the shrine, and then to Rome where they had arranged for an audience with the Pope, returning by steamship from Le Havre on August 25. They spent a week in Paris enroute to the shrine and while there spent most of their time resting, did some walking, and made one sightseeing trip in a private car. Their next stop was at the shrine from August 7 to August 11. While at the shrine Joan each day attended mass, took the baths, and participated in the candlelight procession of pilgrims. Their itinerary called for a visit of 2 days at Nice, France, enroute to Rome, but upon arrival in Nice the remainder of the trip was canceled because impaired service due to a railroad strike would have made further travel by rail too tiresome for them. They could have made the trip by Air. The remainder of their visit to Europe was spent in Nice and Paris. Petitioner had no knowledge of the activities of Joan while at the shrine.
The trip to the shrine was not discussed with or taken at the suggestion or pursuant to the order of any physician. The attending surgeon had no knowledge of and would not have recommended the trip as a specific cure for the disease for which the operation had been performed. Joan did not take a doctor's certificate to Lourdes. She did not register or go to the hospital or consult a physician there during her visit at the shrine.
Members of the medical profession do not recommend mineral or other baths as a specific cure for malignant tumors. The water at the shrine does not have, of itself, any medicinal value, but it is regarded by the Catholic Church as being connected with the cures recognized by it as having occurred at the shrine as miracles. The malignant tumor Joan had in April 1948 was cured by the operation performed on May 27, 1948.
Petitioners claimed as a medical expense on their return for 1949 the amount of.$2,787.19 for transportation costs on the trip of Joan and her mother to Lourdes. Respondent disallowed the deduction upon the ground that the amount did not constitute medical expenses within the meaning of section 23(x) of the 1939 Code.
OPINION.
JOHNSON, Judge:
Agreement of the parties on the amount spent for the trip to France leaves for decision only the question of whether the cost is deductible as an expense for medical care within the meaning of section 23(x) of the 1939 Code, which provides:
The term ‘medical care’, as used in this subsection, shall 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 (including amounts paid for accident or health insurance).
Petitioner asserts, in general, that the expense involved here was paid to obtain a cure or mitigation of the physical condition of his daughter. Acknowledging that there is no case directly in point, he contends that he meets the tests set out in Edward A. Havey, 12 T.C. 409.
The intent of the statute was discussed at considerable length in the Havey case and L. Keever Stringham, 12 T.C. 580, affd. 183 F.2d 579. We remarked in the Havey case: ‘To be deductible as medical expense, there must be a direct or proximate relation between the expense and the diagnosis, cure, mitigation, treatment, or prevention of disease or the expense must have been incurred for the purpose of affecting some structure or function of the body’ and that an amount is not deductible unless ‘the expense was incurred primarily for the prevention or alleviation of such condition. An incidental benefit is not enough.’ The conclusions reached in the Stringham case on congressional intent are to the same effect.
The regulations of the Commissioner, quoted with approval in L. Keever Stringham, supra, and Samuel Dobkin, 15 T.C. 886, include as expenses for medical care ‘travel primarily for and essential to the rendition of the medical services or to the prevention or alleviation of a physical or mental defect or illness.’ Regs. 111, sec. 29.23(x)-1.
The Internal Revenue Code of 1954 includes in the statutory definition of ‘medical care’ amounts paid ‘for transportation primarily for and essential to medical care.’ Sec. 213(e). The amendment was made to clarify the existing statute. H. Rept. No. 1337, 83d Cong., 2d Sess., p. A60, S. Rept. No. 1622, 83d Cong., 2d Sess., p. 219.
While the provisions of section 23(x) are broad, they are restricted by the provisions of section 24(a)(1), which make living expenses nondeductible unless they are ‘extraordinary medical expenses deductible under section 23(x).’ Frances Hoffman, 17 T.C. 1380. Whether a living expense falls within section 23(a)(1) or the exception in section 23(x) is a factual question.
The trip to France was not commenced until 14 months after the operation was performed and it was purposely delayed so that there would be no interference with the scheduled graduation of Joan from high school. By that time the only known physical defect or ailment of Joan was the bone condition in her right leg, from which she appears to have been making a normal recover without need for further medical services or treatment other than the stiff brace she was wearing. That no medical treatments, as such, were necessary at that time or in the immediate future is evident from testimony of petitioner that the surgeon ‘had done what he could’; that ‘his work as a professional man was, in the main finished,‘ and that he could not, as a physician, recommend that Joan go to Lourdes. Moreover, no physician suggested or recommended the trip to the shrine and no medical advice was sought or given while there. Thus, the travel expense was not paid to seek or obtain medical advice or services within, at least, the narrow and commonly understood meaning of the terms. And we do not interpret petitioner as contending otherwise. His motive for having Joan make the trip is apparent from his testimony.
Petitioner was greatly concerned about whether the operation would result in a complete cure of the malignant tumor. He had knowledge of the cures recorded as having occurred at the shrine from the ‘procedure’ there and testified that his motive for sending Joan was to assure spiritual aid with the expectation that it would bring about some improvement of her physical condition, mentally in particular. He also testified that while the reported miracles performed at the shrine influenced his thinking about sending his daughter to France, he had no idea that a miracle would be performed for her. Joan testified that the purpose of making the trip was ‘In the hope of spiritual help.’
The visit to the shrine was to seek spiritual aid with no more than a hope that as a result some improvement would occur in a physical condition, for which no additional medical attention, as such, was required at the time.
Petitioner points to nothing in the applicable statute or its legislative history disclosing intent to treat as an expense for medical care the cost of travel to a place for the purpose of seeking spiritual help to alleviate a physical defect. We find none.
Reviewed by the Court.
Decision will be entered for the respondent.