can you deduct assisted living expenses for both spouses if only one needed the care?

Question

i have a client who wants to amend his return since he and his wife are in an assisted living home and the wife definitely is there for medical reasons. the problem is the husband is their only because of the wife.
the client want to to know if he could deduct the cost for himself in addition to his wife.
please include the IRS code section/source for your answer.
The only loophole i see applies for lodging - that an accompanying person can deduct the cost of lodging.
2) can he ammend his returns & claim a refund more than 3 years since he already filed his returns even though the normal statute of limitation rule rule is you cant claim refunds more than 3 years old?

Answer 1

I do not agree with your reasoning about the accompanying person deduction (a $50 per day lodging deduction for an accompanying person who is required to travel with the patient for treatment away from home) applying to the spouse. There is no section of the IRS code that supports your position.

In fact, the wife could be living in the facility without a spouse, it happens all the time. While the husband is in the facility only because his wife is there and he chooses to be there, it is not necessary that the husband accompany the wife in the assisted living facility. His lodging would not be deductible.

Only the portion of the fee for the wife which is related to medical treatment would be deducted as a medical expense. If the fees cannot be separated between husband and wife, I believe the IRS would accept 50% of the fee as a medical expense for the wife. If there is a surcharge for nursing care for the wife, of course add that to the normal charges. The wife's meals are also deductible, but not the husband's.

There is no extension of the time limit for an amendment in this case.

Answer 2

If you will look in the pub. 17 you will find all the answers you need. as far as i can tell the only thing that he might be able to deduct would be 50 a night that is the limit the irs allows for lodging. you can not amend for more than 3 years back.

hope this helps

if a person is in a hospital, nursing home, or similar institution primarily for medical care, the cost of the meals and lodging the institution provides is a deductible medical expense.
The cost of non-hospital lodging while away from home primarily for medical care provided by a physician in a licensed hospital or in a medical facility that is related to or equivalent to a licensed hospital is deductible. The deduction is limited to 50 dollars per night per person. Meals in this situation are not deductible.
Lodging expenses for a person accompanying the patient are deductible if the patent's expenses are deductible and the patient is unable to travel alone. No deduction is allowed for either the patient or the companion if the accommodations are lavish or if there is Any significant element of personal pleasure or recreation involved

Answer 3

From the IRS:....(substitute "assisted living" for "nursing home")

>>>>Nursing home expenses are allowable as medical expenses in certain instances. If you, your spouse, or your dependent is in a nursing home, and the primary reason for being there is for medical care, the entire cost, including meals and lodging, is a medical expense. If the individual is in the home mainly for personal reasons, then only the cost of the actual medical care is a medical expense, and the cost of the meals and lodging is not deductible. <<<<

I would say "No" to his expenses because his primary reason for being there is not medical but personal.

Either way, you can not go back further than 3 years.
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One other way to look at it: While they are married couple filing a joint return, they are still individuals and the above test must be applied to them individually. That is, assume that they were individuals.

Her) Primary Reason: Medical - All expenses deductible

Him) Primary Reason: Personal - Meals and Lodging not deductible.

In my opinion, the fact that he is not there for medical reasons and would have other lodging options, makes his expenses non-deductible.

Answer 4

Nope. Lodging for accompanying a person travelling for medical care doesn't include charges for assisted living.