Opinion Letter

Letter Number:O-2010-006
Tax Type:Kansas Retailers' Sales Tax
Brief Description:Sales tax in Kansas as applied to sales of medical items.
Keywords:
Approval Date:06/23/2010



Body:
Office of Policy & Research


June 23, 2010

XXXXX
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XXXXX Dear Dr. XXXXX:

Thank you for your recent e-mail that lists a number of medical items. You ask if sales of the items are subject to Kansas retailers' sales tax. You are a Doctor of Chiropractic.

The Streamlined Sales Tax Project (SSTP) publishes a uniform classification table for medical items, such as the ones in your list. Medical items may be classified as prosthetic devices, durable medical equipment, mobility enhancing equipment, medical supplies, clothing, OTC drugs, prescription drugs, and so forth. This uniform classification remedies some of the problems caused when different states classify the same medical item as a different type of device. For example, before the classification table was adopted, some member states would classify a particular medical device as durable medical equipment, while others would classify the same device as mobility enhancing equipment. This continues to occur with States that are not members of the SSTP. It is problematic for nationwide vendors of medical items that are required to track how their sales are taxed in different states.

SSTP states continue to tax or exempt the sale of medical items as their legislatures see fit. However, SSTP states generally tax or exempt sales of medical items based on the classes established by the SSTP.

A state that does not exempt a class of devices for sales tax can exempt a medical item within the class by specifically listing it in an exemption statute. For example, the SSTP classifies oxygen delivery equipment and kidney dialysis equipment as durable medical equipment. Kansas statutes do not exempt sales of durable medical equipment except to certain nursing homes. K.S.A. 2009 Supp. 79-3606(r) does, however, specifically exempt sales of oxygen delivery equipment and kidney dialysis equipment. The Kansas legislature wanted to exempt sales of oxygen delivery and dialysis equipment but did not want to enact a broad exemption for sales of other durable medical equipment.

I will list the medical items that you asked about and identify how each one is classified in the SSTP table. I will then review how the different classes or items are treated under the Kansas retailers' sales tax act.

K.S.A. 79-3606(r) exempts sales of prosthetic devices prescribed in writing by a person licensed to practice the healing arts. Accordingly, sales of the listed items classified above as Prosthetic Devises are exempt when you sell them to a patient in the course of your practice or when a patient purchases them for a supplier with a prescription you issue. See Department of Revenue Q & A, Prescription Requirement in Sales Tax Exemption for Prosthetic Devices and Mobility Enhancing Equipment.

A TENS or TeNS unit is a Transcutaneous electrical nerve stimulation used to treat pain. A TENS unit is usually connected to a patient's skin by two or more electrode pads. TENS applies small electric pulses that excite nerves that stimulate muscle contractraction.

The SSTP has classified TENS units that are worn by a patient as prosthetic devices. Like other prosthetic devices, sales of these units are exempt when you sell them to a patient in the course of your practice or when a patient buys one with a prescription that you issue.

The SSTP has classified TENS units that are not worn by a patient as durable medical equipment. Sales of these units to patients are subject to sales tax, because sales of durable medical equipment are generally taxable. You are required to charge Kansas sales tax when you sell them to patients in the course of your practice. Medical supply houses are required to charge and collect sales tax on the sale or rental of the unit, even when a patient has been issued a prescription for the TENS device. Sales of orthopedic cervical pillows are also taxable because such pillows are classified as durable medical equipment.

Sales of durable medical equipment are only exempt when sold to certain nursing homes or to exempt entities that can claim exemption on their purchases, such as a non-profit hospitals and blood banks. This limited exemption is contained in K.S.A. 79-3603(hh). It exempts:

Electro-pads for TENS use at home are not listed in the SSTP classification table. Some SSTP states currently tax or exempt these pads based on whether the pads are intended to be used with TENS unit that a patient wears on his or her body or with a TENS unit that is not worn on the body. Since you describe the TENS electro-pads as being for home use, I assume the pads are for a TENS unit that is not worn on the body. Charges for these pads are taxable. Charges for pads that are intended to be used with a TENS unit that is worn on the body are exempt.

Date Composed: 06/24/2010 Date Modified: 06/24/2010