Senator Schumer contacted the IRS in Spring of 2010 on behalf of one of his constituents requesting clarification of when an herb is a medical care expense that can be paid for with funds from the constituent's Flexible Spending Account, (FSA). The individual was taking a herbal remedy for migraines, prescribed by a health care practitioner.
An FSA is a benefit offered by some companies where an deduction is made from the employee's wages. This amount is pre-tax dollars and held in an account that may be used to pay qualified medical expenses. Typical expenses include insurance and prescription medicine co-pays, eyeglasses, hearing aids and other medical expenses that the employee pays for out of pocket.
The IRS response to Senator Schumer's inquiry advises that: "A taxpayer claiming a deduction must establish that the expense is primarily for medical care. Among the objective factors indicating that an otherwise personal expense is for medical care are the taxpayer’s motive or purpose, recommendation by a physician, linkage between the treatment and the illness, treatment effectiveness, and proximity in time to the onset or recurrence of a disease. Havey v. Commissioner, 12 T.C. 409 (1949). The taxpayer must also establish that the expenses would not have been incurred “but for” the disease or illness."
Full text of letter (personal details redacted) is below
