Did corrective cervical and lumbar pillows or exercise tubes qualify as exempt orthotic devices?

Plain-English summary

The seller asked why a prior Board letter excluded exercise tubes and cervical and lumbar pillows from orthotic devices. The July response quoted the historical rule for devices designed to be worn on the user as a brace, support or correction for body structure.

Tax Counsel accepted that the pillows might be corrective but relied on the seller's statement that a patient slept on a cervical pillow. Because the cervical and lumbar pillows were not designed to be fully worn on the user, they did not qualify as orthotic medicines. The letter applied the same rationale to the exercise tubes without describing their design or use.

The seller was therefore treated as the retailer of all three product categories. The letter directed the seller to apply for a seller's permit, file returns and remittances, and then purchase inventory ex-tax for resale by giving the supplier a resale certificate.

Live annotation and source posture

The current live annotation matches the source's fully worn conclusion and taxable-sale result. It says the same rational applied to exercise tubes; the source itself uses same rationale. Neither source supplies facts showing how an exercise tube was held, attached or used, so the shared conclusion cannot be independently tested against a particular tube design.

The letter responds to a June 14, 1988 request for clarification of a June 1 Board letter to the taxpayer's accountant. Neither earlier letter is included. The request also reportedly identified an error in the seller's permit number printed in the June 1 letter. The July response does not correct the number in the public text; instead, it directs the seller to apply for a permit and asks the San Jose District Administrator to help. The supplied record does not explain whether the taxpayer had no permit, had a different permit, or what happened next.

No sales dates, prices, customers, invoices, returns, tax amounts, penalties, permit issuance or completed compliance outcome appears. The source also supplies no pillow or tube samples, literature, specifications, photographs or instructions beyond the quoted statement that the patient slept on the cervical pillow.

The official two-page PDF has a complete native text layer. Its only raster image is the California state seal in the first-page letterhead, not scanned body text, so no OCR was required. Two fresh direct PDF downloads and two live-page downloads were byte-identical; duplicate default text extractions also matched.

CDTFA's Annotated Legal Opinions collection says the opinion letters are summarized as annotations and statutory law controls when a statute and annotation conflict.

What this means for you

A therapeutic or corrective purpose did not by itself satisfy the historical orthotic-device rule. The agency focused on whether the product was designed to be fully worn on the user's person; the stated cervical-pillow use was sleeping on it.

For a current product, preserve design drawings, instructions, photographs and evidence of how the user wears or supports it. Separately confirm present seller-permit, return, resale-certificate and tax duties rather than relying on this 1988 compliance direction.

Common questions

Q: Did corrective function alone create an orthotic exemption?

A: No. The letter also required the item to be designed to be fully worn on the user's person.

Q: What facts supported the pillow classification?

A: The seller's request reportedly said the cervical pillow treated the cervical spine while the patient slept on it. The source gives no other product details.

Q: What facts supported the exercise-tube classification?

A: None are described. The letter simply says the same fully worn rationale applied.

Q: Could the seller purchase inventory without tax?

A: The letter said the seller could purchase the products ex-tax for resale after obtaining a seller's permit and giving the supplier a resale certificate.

Q: Did the source resolve the incorrect permit number?

A: No. It notes the reported error, tells the seller to apply for a permit and supplies no later permit record or result.

Missing evidence and references

• June 14, 1988 clarification request — described but absent
• June 1, 1988 Board letter to the accountant — referenced but absent
• Accountant, seller and seller's-permit identity — redacted
• Pillow and exercise-tube literature, samples, specifications, photographs and instructions — not supplied
• Product sales, invoices, prices, customers and claimed exemptions — not supplied
• Correct permit number, permit application, issuance and filing history — not supplied
• Returns, remittances, assessments, refunds and completed compliance outcome — not supplied

Verbatim support

From the official July 22, 1988 Senior Tax Counsel letter:

While it may be true that cervical and lumbar pillows are corrective devices, our determination in excluding them from the definitional grouping of orthotic devices was premised on the fact that neither is “designed to be worn on the person of the user.”

Thus, the cervical and lumbar pillows are not “fully worn on the person of the user” and as such are not orthotic devices. The same rationale applies to the exercise tubes.

As a retailer, you are required to apply for a seller's permit and to file tax returns and remittances with the Board (see Revenue and Taxation Code sections 6066, 6452, 6453, and 6454).

Once you are in possession of a seller's permit, you may purchase the cervical and lumbar pillows and the exercise tubes ex-tax for resale by issuing your supplier a resale certificate.

Citations and references

• Historical California Revenue and Taxation Code § 6369(c)(3) — orthotic-device definition quoted and applied in the letter
• California Revenue and Taxation Code §§ 6066 and 6452-6454 — seller-permit, return and remittance duties cited in the letter
• June 1, 1988 Board letter to the taxpayer's accountant — referenced but not reproduced

Source

• Annotated Legal Opinions collection: CDTFA Annotated Legal Opinions
• Live annotation: Annotation 425.0041
• Original supporting opinion: 425.0041 PDF

Original ruling text

STATE OF CALIFORNIA

425.0041

STATE BOARD OF EQUALIZATION
July 22, 1988
REDACTED TEXT

Dear REDACTED TEXT,
This is in response to your letter to me dated June 14, 1988. You have requested a clarification concerning our June 1, 1988 letter to your accountant, Mr. REDACTED TEXT. Specifically you inquire the reason for our excluding exercise tubes and cervical and lumbar pillows as orthotic devices. In addition, you bring to our attention our error in listing your seller's permit number as SR REDACTED TEXT. Revenue and Taxation Code section 6369(c)(3) defines orthotic devices as those which are “... designed to be worn on the person of the user as a brace, support or correction for the body structure ...” While it may be true that cervical and lumbar pillows are corrective devices, our determination in excluding them from the definitional grouping of orthotic devices was premised on the fact that neither is “designed to be worn on the person of the user.” To buttress this conclusion, your letter states that the cervical pillow “treats patients cervical spine as they sleep on it.” Thus, the cervical and lumbar pillows are not “fully worn on the person of the user” and as such are not orthotic devices. The same rationale applies to the exercise tubes. Since the cervical and lumbar pillows and the exercise tubes are not orthotic devices, you will be considered the retailer of these items. As a retailer, you are required to apply for a seller's permit and to file tax returns and remittances with the Board (see Revenue and Taxation Code sections 6066, 6452, 6453, and 6454). We suggest you contact our field office located at REDACTED TEXT, San Jose, California, 95113-1477, telephone number (408) 277-1231. Our office personnel will be happy to assist you in completing the necessary paperwork. Once you are in possession of a seller's permit, you may purchase the cervical and lumbar pillows and the exercise tubes ex-tax for resale by issuing your supplier a resale certificate.

again.

I hope you find this information helpful. If there is a need, please feel free to write Very truly yours,

ELS:md
bc:

E. L. Sorensen, Jr.
Senior Tax Counsel

San Jose – District Administrator
Please assist this taxpayer in obtaining a seller’s permit.