II 112th CONGRESS 1st Session S. 965 IN THE SENATE OF THE UNITED STATES May 12, 2011 Mrs. Gillibrand introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Internal Revenue Code of 1986 to provide an income tax credit for the costs of certain infertility treatments, and for other purposes.

1.

Short title

This Act may be cited as the Family Act of 2011.

2.

Findings

Congress finds the following: (1)The World Health Organization formally recognizes infertility as a disease, and the Centers for Disease Control and Prevention have stated that infertility is an emerging public health priority. (2)According to the Centers for Disease Control and Prevention, approximately 3,000,000 have infertility. (3)Medical insurance coverage for infertility treatments is sparse and inconsistent at the State level—only 8 States have passed laws to require comprehensive infertility coverage, and under those State laws most employer-sponsored plans are exempt; therefore, coverage for treatments such as in vitro fertilization is limited. According to Mercer's 2005 National Survey of Employer-Sponsored Health Plans, in vitro fertilization was covered by 19 percent of large employer-sponsored health plans and only 11 percent of small employer-sponsored health plans. Even in States with coverage mandates, out-of-pocket expenses for these treatments are significant.

3.

Credit for certain infertility treatments

(a)

In general

Subpart A of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 is amended by inserting before section 24 the following new section:

23A.

Credit for certain infertility treatments

(a)

Allowance of credit

In the case of an eligible individual, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to 50 percent of the qualified infertility treatment expenses paid or incurred during the taxable year. (b)

Limitations

(1)

Dollar limitation

The aggregate amount of qualified infertility treatment expenses which may be taken into account under subsection (a) for all taxable years shall not exceed $13,360 with respect to any eligible individual. (2)

Income limitation

(A)

In general

The amount otherwise allowable as a credit under subsection (a) for any taxable year (determined after the application of paragraph (1) and without regard to this paragraph and subsection (c)) shall be reduced (but not below zero) by an amount which bears the same ratio to the amount so allowable as— (i)the amount (if any) by which the taxpayer’s adjusted gross income exceeds $150,000; bears to (ii)$40,000. (B)

Determination of adjusted gross income

For purposes of subparagraph (A), adjusted gross income shall be determined without regard to sections 911, 931, and 933. (3)

Denial of double benefit

(A)

In general

No credit shall be allowed under subsection (a) for any expense for which a deduction or credit is taken under any other provision of this chapter. (B)

Grants

No credit shall be allowed under subsection (a) for any expense to the extent that reimbursement or other funds in compensation for such expense are received under any Federal, State, or local program. (C)

Insurance reimbursement

No credit shall be allowed under subsection (a) for any expense to the extent that payment for such expense is made, or reimbursement for such expense is received, under any insurance policy. (4)

Limitation based on amount of tax

In the case of a taxable year to which section 26(a)(2) does not apply, the credit allowed under subsection (a) for any taxable year shall not exceed the excess of— (A)the sum of the regular tax liability (as defined in section 26(b)) plus the tax imposed by section 55; over (B)the sum of the credits allowable under this subpart (other than this section) and section 27 for the taxable year. (c)

Carryforwards of unused credit

(1)

Rule for years in which all personal credits allowed against regular and alternative minimum tax

In the case of a taxable year to which section 26(a)(2) applies, if the credit allowable under subsection (a) exceeds the limitation imposed by section 26(a)(2) for such taxable year reduced by the sum of the credits allowable under this subpart (other than this section), such excess shall be carried to the succeeding taxable year and added to the credit allowable under subsection (a) for such succeeding taxable year. (2)

Rule for other years

In the case of a taxable year to which section 26(a)(2) does not apply, if the credit allowable under subsection (a) exceeds the limitation imposed by subsection (b)(4) for such taxable year, such excess shall be carried to the succeeding taxable year and added to the credit allowable under subsection (a) for such succeeding taxable year. (3)

Limitation

No credit may be carried forward under this subsection to any taxable year after the 5th taxable year after the taxable year in which the credit arose. For purposes of the preceding sentence, credits shall be treated as used on a first-in first-out basis. (d)

Qualified infertility treatment expenses

For purposes of this section— (1)

In general

The term qualified infertility treatment expenses means amounts paid or incurred for the treatment of infertility via in vitro fertilization if such treatment is— (A)provided by a licensed physician, licensed surgeon, or other licensed medical practitioner, and (B)administered with respect to a diagnosis of infertility by a physician licensed in the United States. (2)

Treatments in advance of infertility arising from medical treatments

In the case of expenses incurred in advance of a diagnosis of infertility for fertility preservation procedures which are conducted prior to medical procedures that, as determined by a physician licensed in the United States, may cause involuntary infertility or sterilization, such expenses shall be treated as qualified infertility treatment expenses— (A)notwithstanding paragraph (1)(B), and (B)without regard to whether a diagnosis of infertility subsequently results. Expenses for fertility preservation procedures in advance of a procedure designed to result in infertility or sterilization shall not be treated as qualified infertility treatment expenses.(3)

Infertility

The term infertility means the inability to conceive or to carry a pregnancy to live birth, including iatrogenic infertility resulting from medical treatments such as chemotherapy, radiation or surgery. Such term does not include infertility or sterilization resulting from a procedure designed for such purpose. (e)

Eligible individual

For purposes of this section, the term eligible individual means an individual— (1)who has been diagnosed with infertility by a physician licensed in the United States, or (2)with respect to whom a physician licensed in the United States has made the determination described in subsection (d)(2). (f)

Filing requirements

Married taxpayers must file joint returns. Rules similar to the rules of paragraphs (2), (3), and (4) of section 21(e) shall apply for purposes of this section. (g)

Adjustments for inflation

(1)

Dollar limitations

In the case of a taxable year beginning after December 31, 2012, the dollar amount in subsection (b)(1) shall be increased by an amount equal to— (A)such dollar amount; multiplied by (B)the cost-of-living adjustment determined under section 1(f)(3) for the calendar year in which the taxable year begins, determined by substituting calendar year 2011 for calendar year 1992 in subparagraph (B) thereof. If any amount as increased under the preceding sentence is not a multiple of $10, such amount shall be rounded to the nearest multiple of $10.(2)

Income limitation

In the case of a taxable year beginning after December 31, 2002, the dollar amount in subsection (b)(2)(A)(i) shall be increased by an amount equal to— (A)such dollar amount; multiplied by (B)the cost-of-living adjustment determined under section 1(f)(3) for the calendar year in which the taxable year begins, determined by substituting calendar year 2001 for calendar year 1992 in subparagraph (B) thereof. If any amount as increased under the preceding sentence is not a multiple of $10, such amount shall be rounded to the nearest multiple of $10.

. (b)

Conforming amendments

(1)The table of sections for subpart A of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 is amended by inserting before the item relating to section 24 the following new item: Sec. 23A. Credit for certain infertility treatments. . (2)Section 36C(b)(4) of such Code is amended by striking section 25D and inserting sections 23A and 25D. (3)Section 25(e)(1)(C)(ii) of such Code is amended by inserting 23A, before 24,. (4)Section 25D(c)(1)(B) of such Code is amended by striking section 27 and inserting sections 23A and 27. (5)Section 1400C(d)(1) of such Code is amended by striking section 25D and inserting sections 23A and 25D. (6)Section 1400C(d)(2) of such Code is amended by inserting 23A, after 23,. (c)

Effective date

The amendments made by this section shall apply to taxable years beginning after December 31, 2011.