justicestatue

Deducting the Cost of Diapers

for your Child with a Disability

Stepnowski Law Library

The Law Office of Edward L. Stepnowski 
The Law Office of Francis E. Stepnowski 

Please do not use this article as definitive advice, as your situation may vary.  Consult your attorney or tax professional.  Nothing on this page creates an attorney-client relationship.
Someone asked the question if she could deduct on her taxes the cost of diapers used by her child with a disability.  Great question!  Having a child with disabilties puts great strain on your budget, and every bit of savings helps.

There is no definitive answer, but an analysis of IRS documents implies that the cost can be deducted if your child is disabled and above the age when a child without a disability would no longer use them. 

Ordinarily, diapers are not deductible as a medical deduction to your taxes, and the primary government documents specifically exclude them.

The easiest place to look for information of the deductibility of medical expenses is IRS Publication 502.
Links to Pub 502 and the tax code and regulations are on the tax reference page.

Publication 502 gives the general rules:

Medical expenses are the costs of diagnosis, cure, mitigation, treatment, or prevention of disease, and the costs for treatments affecting any part or function of the body. They include the costs of equipment, supplies, and diagnostic devices needed for these purposes. They also include dental expenses.

Medical care expenses must be primarily to alleviate or prevent a physical or mental defect or illness. They do not include expenses that are merely beneficial to general health, such as vitamins or a vacation.

It also describes those that are not deductible:

You cannot include in medical expenses the cost of an item ordinarily used for personal, living, or family purposes unless it is used primarily to prevent or alleviate a physical or mental defect or illness. For example, the cost of a toothbrush and toothpaste is a nondeductible personal expense.

Where an item purchased in a special form primarily to alleviate a physical defect is one that in normal form is ordinarily used for personal, living, or family purposes, the excess of the cost of the special form over the cost of the normal form is a medical expense

In particular IRS Pub 502 states:
You cannot include in medical expenses the amount you pay for diapers or diaper services, unless they are needed to relieve the effects of a particular disease.

This statement seems to apply the general rules above.  Also, the statement is based on IRS Revenue Ruling 55-261, which states:

"16. Maternity clothing, antiseptic diaper service, wigs, toothpaste .-Amounts expended for the preservation of general health or for the alleviation of physical or mental discomfort which is unrelated to some particular disease or defect are not expenses for medical care as defined in section 23(x) of the Code. [Step-Law note: Now sec. 213.] Expenditures for maternity clothing, antiseptic diaper service, wigs, and toothpaste, are held to be personal expenses, the deduction of which is prohibited by section 24(a)(1) of the Code. O. G. Russell v. Commissioner , Tax Court Memorandum Opinion, entered November 6, 1953."

So far, IRS Pub 502 accurately states the law for most people.  Our sons and daughters, however, are not like most people.  Diapers are ordinary personal costs of most babies, and for them not deductible.  The key here is the "unless."  The real question here is whether diapers count for the exception: "they are needed to relieve the effects of a particular disease."

The answer is that they can be, but there is no controlling precedent.

In 1981, the Tax Commissioner issued a Private Letter Ruling discussing Code Section 213.  As opposed to court rulings which have precedential value, a letter ruling is directed only to the taxpayer who requested it and is not precedential.  However, the letter provides guidance on how the IRS has considered the issue in the past.

In PLR 8137085: the commissioner noted the following facts:
  • the taxpayer's daughter suffered from Aicardi syndrome, which resulted in brain damage,
  • she was completely incontinent,
  • she was "long past the age when diapers would be a normal living expense" (she was 4 years old).
  • "her physician stated that should require diapers
    •  on a constant basis because of her neurological disease,
    • and because of her size and skin breakdown potential, absorbent paper product diapers should be used."
The IRS concluded:
"Because disposable diapers are used to alleviate the effects of a particular disease, ...  we hold that the cost of disposable diapers is a cost of the medical care of your daughter and is deductible under section 213 of the Code."

If your child has the above effects, the IRS should rule similarly.  It should apply to any neurologic disorder which results in incontinence, not just the syndrome listed above.  They help alleviate the effects of a particular disease.

However, no medical expenses are deductible unless you meet two other requirements:
  1. Your itemized deductions exceed the "standard deduction" (easy to do if you have a mortgage and pay real estate and State income taxes.)  The standard deduction is about $9,700 for married couples, less for singles.
  2. Your family's total, unreimbursed medical expenses exceed 7.5% of your adjusted gross income (usually hard, but can be met if your child has medical treatments insurance will not pay, such as ABA or other treatments).  This threshold is described in the tax reference page.:MedicalDed.html
Remember that the law is always changing and you should consult a tax professional.

Dietary Foods

A 09/28/2007 IRS information letter ( http://www.irs.ustreas.gov/pub/irs-wd/07-0037.pdf) explains that diet foods, meal replacements, and dietary supplements to help people reduce their weight do not qualify as medical care expenses under Code Section 213(d). The IRS letter notes that expenses must be for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting a structure or function of the body in order to qualify as Code Section 213(d) medical care expenses. In contrast, diet foods, meal replacements, an dietary supplements are substitutes for the food that individuals normally consume to satisfy their nutritional requirements and are nondeductible personal expenses. The letter references Revenue Ruling 2002-19, holding that even though obesity was considered to be a disease,  reduced-calorie diet foods were not medical care expenses under IRC Section 213(d), even when purchased by individuals diagnosed with obesity..

However, previous IRS guidance states that, in special cases, depending upon the particular facts presented, if the prescribed food or beverage is taken solely for the alleviation or treatment of an illness, is in no way a part of the nutritional needs of the patient, and a statement as to the particular facts and to the food or beverage prescribed is submitted by a physician, the cost of such food or beverage may be deducted as a medical expense. Where the special food or beverage is taken as a substitute for food or beverage normally consumed by a person and satisfies his nutritional requirements, the expense incurred is a personal expense; but where it is prescribed by a physician for medicinal purposes and is in addition to the normal diet of the patient, the cost may qualify as a medicinal expense, based on IRS Revenue Ruling 55-261,
IRS Circular 230 Disclosure
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

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