Tax Type
Retail Sales and Use Tax
Description
Medical Equipment and Devices; Breast Pumps for New Mothers
Topic
Taxability of Persons and Transactions
Date Issued
10-08-1991
October 8, 1991
Re: Request for Ruling: Retail Sales and Use Tax
Dear***************
This will reply to your letter of July 19, 1991 in which you request a ruling on behalf of********(the Taxpayer) as to whether the tax applies to tangible personal property sold by the Taxpayer
FACTS
The Taxpayer is a business that sells and rents manuelectric and electric breast pumps to new mothers. In some cases, use of the equipment is prescribed by a physician. The Taxpayer requests a ruling on the applicability of the tax on the sales and rentals of the equipment.
RULING
Va. Code §58.1-608(A)(7)(a) (copy enclosed) provides a sales and use tax exemption for medicines and drugs sold on prescriptions or work orders of licensed physicians. While breast pumps may be prescribed by a physician, they do not constitute a "medicine" or "drug." In numerous prior rulings, the department has interpreted the exemption as not applying to medical devices or equipment and this position is supported by the doctrine of strict construction adopted by the Virginia courts in reviewing sales and use tax exemptions.
Va. Code §58.1-608(A)(7)(b) does provide an exemption from the sales and use tax for "durable medical equipment and devices." Durable medical equipment is defined as equipment which (1) can withstand repeated use; (2) is primarily and customarily used to serve a medical purpose; (3) generally is not useful to a person in the absence of illness or injury; and (4) is appropriate for use in the home.
In order for an item to be exempt as durable medical equipment, the item must qualify under all four of the above stated criteria. While the breast pumps sold or rented by the Taxpayer can withstand repeated use, serve a medical purpose in some instances, and are appropriate for use in the home, under the facts presented, the pumps fail to qualify for exemption as they are not primarily and customarily used for a medical purpose and are useful in absence of illness.
Accordingly, as the items in question are devices, rather than medicines or drugs, and do not meet the durable medical equipment requirements, I must conclude that these items are subject to the sales and use tax, even when purchased pursuant to a prescription or work order.
If you have any further questions regarding this matter, please contact the department.
Sincerely,
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner