In July 2022, as abortion-rights opponents sought to capitalize on the previous month’s Supreme Court decision overturning Roe v. Wade, officials in Georgia’s Department of Revenue were grappling with how to issue guidance on another provision in the state’s recent six-week abortion-ban law: an “unborn child” tax exemption.
Records obtained by American Oversight reveal conversations among officials at the agency about the need for guidance regarding the new exemption — and provide a glimpse of some of the confusion that arose following the change.
Georgians can claim a fetus with a detectable heartbeat as a dependent and receive a state tax exemption of $3,000. This policy resulted from Georgia House Bill 481, signed by Gov. Brian Kemp in 2019, which banned abortion after about six weeks of pregnancy and contained a “fetal personhood” provision giving fetuses legal rights and protections. A federal judge ruled the measure was unconstitutional and blocked it from taking effect the next year, but after the Supreme Court’s June 2022 Dobbs decision, a federal appeals court allowed the legislation to go into effect that July.
In early August 2022, Georgia’s Department of Revenue (DOR) released guidance establishing that residents could claim a fetus with a detectable heartbeat as a dependent on their tax returns, prompting many questions about the policy. For example, would someone still qualify for the tax exemption if the pregnancy resulted in a miscarriage or was terminated? If an individual who had claimed this exemption were audited, would they have to produce documentation of a fetal heartbeat? If the parents were unmarried, could both claim the fetus as a dependent?
The records we obtained show DOR officials discussing the need for HB 481 guidance in May 2022, following the leak of the Supreme Court’s draft Dobbs opinion, and later fielding questions from tax professionals once the guidance had been issued.
On May 4, Chester Cook, DOR’s assistant deputy commissioner for tax operations, emailed Deputy State Revenue Commissioner Frank O’Connell and several other department officials and noted that they would “[p]robably need to chat about HB 481 over the next month.”
“We will need to be prepared to issue potential guidance (and respond to external inquiries) once the Dobbs decision is issued by the US Supreme Court,” Cook wrote. If the Supreme Court overturned Roe, he added, the department “would likely be in a situation where we’d have to update instructions and provide general guidance.”
Emails and drafts of the upcoming guidance sent that July reveal a significant point of discussion was around what documentation to specify was required. For example, one draft of the guidance said that medical records “may be provided to support the dependent dedication claimed if requested by the Department.” O’Connell and Kristyn Long, the deputy chief operating officer for the governor’s office, recommended changing “may” to “shall,” a suggestion reflected in DOR’s Aug. 1 guidance.
But even after the guidance was issued, significant questions remained. Don Cook, the vice president of legislative affairs for the Georgia Society of CPAs, told O’Connell on Aug. 8 that he was “getting all kinds of questions on this as you can imagine, and I know y’all are getting the same.” Eligibility for the exemption was “pretty straightforward,” O’Connell responded, and the “only question I can think that folks may have is what type of documentation would be sufficient if we happen to request after filing.”
Later that month, a senior tax analyst at Thomson Reuters contacted the agency with several questions, including “Will taxpayers need to submit any documentation for proof of unborn dependent’s heart beat?” In internal email discussions among officials, Jarter Gao, an attorney at DOR, wrote that while taxpayers did not need to submit documentation, “They are certainly welcome to.” DOR’s Chester Cook qualified that recommendation: “While taxpayers can send what they want, I don’t think we’ll encourage or mention that they are welcome to send documentation.” After several emails back and forth, DOR responded to the analyst’s questions, writing that while documentation was not necessary when filing tax returns, “taxpayers will need to keep relevant medical records or other appropriate supporting documentation in their own files so that it will be available to provide to the Department upon request.”