Title: Medical Exemptions/Vision Assist Products. May 23, 1990

Transcription

1 Title: Medical Exemptions/Vision Assist Products May 23, 1990 Re: TAA 9OA-032 Sales Tax on "Vision Assist Products" Section (2), F.S. Rules 12A & 12A-1.021, F.A.C. Dear This is in response to your letter dated April 5, 1990, in which you requested the issuance of a Technical Assistance Advisement concerning the taxability of above referenced products sold in this state by your company. Your letter provided the following in pertinent part. "We have been selling optical equipment, parts and supplies to optical labs and doctors for years in Florida and collecting sales tax. Recently, we have begun selling what we call `vision assist products' to end users - people who are visually handicapped. Among items sold are XXX Electronic Magnification Systems, a closed circuit television which enables partially sighted individuals to read, various magnifiers and other items such as monoculars, and behind-the-lens telescopes. "While we have been collecting Florida sales tax on these items, it has come to our attention that a major competitor in this field, XXX, does not collect the tax, thereby giving them the price advantage. It is our desire to comply with the sales tax laws, but at the same time be aware of any exemptions available to our customers. "Enclosed is a packet containing descriptions of our `vision assist' line of products as well as pricing..." We thank you for your letter and would like to inform you that this response constitutes a Technical Assistance Advisement issued pursuant to the provisions of Section , F.S. Upon review and analysis of the pictorial descriptions of your

2 company's products, the Department is of the opinion that some of these products may indeed be classified as "prosthetic and orthopedic appliances", as that term is defined under the sales and use tax law. Your attention is invited to the following excerpts from the Florida Statutes. Section (2), F.S., provides in pertinent part: "(2) EXEMPTIONS; MEDICAL. "(a) There shall be exempt from the tax imposed by this chapter any product, supply, or medicine dispensed in a retail establishment by a pharmacist licensed by the state, according to an individual prescription or prescriptions written by a prescriber authorized by law to prescribe medicinal drugs;...there shall also be exempt from the tax imposed by this chapter artificial eyes and limbs; orthopedic shoes; prescription eyeglasses and items incidental thereto or which become a part thereof; dentures; hearing aids; crutches; prosthetic and orthopedic appliances; and funerals... "(b) For the purposes of this subsection: "1. `Prosthetic and orthopedic appliances' means any apparatus, instrument, device, or equipment used to replace or substitute for any missing part of the body, to alleviate the malfunction of any part of the body, or to assist any disabled person in leading a normal life by facilitating such person's mobility. Such apparatus, instrument, device, or equipment shall be exempted according to an individual prescription or prescriptions written by a prescriber authorized by law to prescribe medicinal drugs or according to a list prescribed and approved by the Department of Health and Rehabilitative Services, which list shall be certified to the Department of Revenue from time to time and included in the rules promulgated by the Department of Revenue." (Emphasis Supplied) As provided for in the above quote, the list containing specifically exempted prosthetic and orthopedic appliances is incorporated under paragraph (1)(b) of Rule 12A-1.021, F.A.C.,

3 and is also published under form "DR-46NT", copies of which are enclosed herewith for your reference. Pursuant to the provisions contained under the statutory and regulatory languages of the tax law, in addition to the items enumerated in Rule 12A-1.021(1)(b), F.A.C., tax is not imposed on any product sold or dispensed according to an individual prescription or prescriptions written by a duly authorized physician. Your attention is, again, invited to the following excerpts from the Florida Administrative Code. Rule 12A-1.020(17), F.A.C., provides: "(17)(a) Prescription eyeglasses and incidental items which become parts thereof are exempt. Prescription eyeglasses includes lenses, including contact lens, prescribed for the correction of a patient's refractive effort, for the improvement of a patient's vision, or for protective purposes. Incidental items to prescription eyeglasses includes frames, component parts, carrying case and other like items if purchased for use with the prescription eyeglasses. Eyeglass lens cleaning solutions, including contact lens cleaning solutions, are taxable. "(b) The sale of standard or stock eyeglasses and other incidental component parts thereto without a prescription is taxable. These include frames and component parts, carrying cases, safety glasses, sunglasses, field glasses, opera glasses, magnifying glasses and spec chains." (Emphasis Supplied) Rule 12A-1.021(2), F.A.C., provides: "(2)(a) Parts, special attachments, special lettering and other like items that are added to or attached to tangible personal property so that a handicapped person can use them are taxable, unless such items are purchased by a person pursuant to an individual prescription or prescriptions as prescribed in paragraph (a) of subsection (1). For example: items installed on motor vehicles to make them adaptable for use by handicapped persons, such as special controls for paralytics or amputees, when purchased by a

4 person pursuant to a written prescription, are exempt. However, standard or optional equipment, as well as the motor vehicle, is taxable. "(b) If tangible personal property is sold with special controls, lettering or devices, and the additional charge for the added features is separately stated on the sales invoice for the tangible personal property, that portion of the sales receipts attributable to the added features is taxable, unless purchased pursuant to an individual prescription or prescriptions. For example, a television set sold with a closed captioned device built-in, the portion of the price attributable to the closed captioned device, if separately stated on the sales invoice and purchased by a person pursuant to a written prescription, may be deducted from the selling price before computing tax." (Emphasis Supplied) The above rule provisions provide further guidance in determining the taxability of your company's products which consist of various models and sizes of eyeglasses, sunglasses, microscopic spectacles, magnifying lenses, telescopes and telescope lenses and other electronically magnifying devices which include television monitors, computer hardware, software and accessories. Rule 12A-1.020(17), F.A.C., provides that prescription eyeglasses and incidental items which become parts thereof are exempt from taxation when sold pursuant to an individual prescription or prescriptions. It should be noted that "incidental items" to prescription glasses only qualify for tax exemption, and in order to qualify for the exemption, such item or items are to be sold to the individual customer along with or subsequently as part of the prescription eyeglasses which are ordered and dispensed according to a prescription. Any non-prescription sale of eyeglasses and/or incidental items thereof, to an individual customer is subject to taxation. Likewise, any apparatus, instrument, equipment, device or product to alleviate the malfunction of the eyes or to enhance a visually handicapped person's visibility is exempt from taxation provided such item or items are sold to the individual customer according to a doctor's prescription. In other words, only those apparatus, instruments, equipment, devices or products

5 which are prescribable by a licensed physician would qualify for tax exemption. All items which may not be prescribed are taxable. If taxable and non- taxable items are sold together as a single unit or package and a single price is charged, the entire charge would be subject to taxation. In instances, where such items are sold together and prices for such items are separately stated on the sales invoice or sales ticket, tax is to be collected on the portion of the total charge attributable to the taxable items only, and the portion attributable to the non-taxable items would be exempt from taxation. Based on the information obtained from the various brochures enclosed with your letter, it is the position of the Department that none of the products detailed therein, would qualify for tax exemption without a doctor's prescription or prescriptions when sold to an individual customer (end consumer) in this state. Therefore, the Department hereby construes that any sale, purchase, use or consumption in this state of your company's "vision assist products", as referred to above, without an individual prescription or prescriptions written by a prescriber authorized by law to prescribe medicinal drugs is a taxable transaction unless such transaction is specifically exempt otherwise under another provision of the tax law, such as a sale for resale or a sale to a tax exempt entity. Regarding your concern that your competitor does not collect tax on the sale of similar products, please be assured that this information will be passed on to appropriate officials of the Department to take whatever action seems most necessary. This response constitutes a Technical Assistance Advisement under s , F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice as specified in s , F.S. Our response is predicated on those facts and the specific situation summarized above. You are advised that subsequent statutory or administrative rule changes or judicial interpretations of the statutes or rules upon which this advice is based may subject similar future transactions to a different treatment than expressed in this response. You are further advised that this response and your request are

6 public records under Chapter 119, F.S., which are subject to disclosure to the public under the conditions of s , F.S. Your name, address, and any other details which might lead to identification of the taxpayer must be deleted by the Department before disclosure. In an effort to protect the confidentiality of such information, we request you notify the undersigned in writing within 15 days of any deletions you wish made to the request or this response. Sincerely, Neel Jacob, Technical Assistant NJ/pb Enclosure