Which listed supports, braces, splints, and rehabilitation products did California treat as orthotic devices?

Plain-English summary

California treated fully worn devices used as a brace, support, or other correction for body structure as orthotic devices. That included the described head, neck, chest, back, abdominal, clavicle, elbow, wrist, hip, knee, ankle, and similar supports; specified slings and immobilizers; several arm, finger, knuckle, and leg splints; and identified sports-therapy sleeves, cuffs, braces, and stabilizers.

The opinion did not extend that treatment to products that merely restricted movement, were not worn on the body, functioned as appliances or accessories, or were too vaguely described. It specifically treated the abduction cushion, leg boots, tension pillows, listed shoes and cast accessories, protectors, bandages, restraints, and padding as taxable. The Pavlik Harness and several general product categories were taxable pending more information.

Common questions

Was every item called a support or splint treated as an orthotic device?

No. The item had to be worn as a brace, support, or correction for body structure; merely restricting mobility was not enough.

Did the opinion finally classify every catalog product?

No. It said the Pavlik Harness and several broadly labeled product groups lacked enough information and were taxable pending further details.

Citations and references

• California Revenue and Taxation Code section 6051 — general tax on retail sales of tangible personal property
• California Revenue and Taxation Code section 6369 and Sales and Use Tax Regulation 1591(a) — prescription-medicine exemption and furnishing conditions discussed in the opinion
• California Sales and Use Tax Regulation 1591(b)(1) and (b)(4) — general medicine rule and orthotic-device classification

Source

• Annotated Legal Opinions collection: https://cdtfa.ca.gov/taxes-and-fees/annotations-menu.htm
• Annotation page: https://cdtfa.ca.gov/lawguides/vol2/suta/425-0000-all.html
• Original supporting opinion: https://cdtfa.ca.gov/lawguides/annotations/425-0162.pdf

Original ruling text

425.0162

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION

WILLIAM M. BENNETT
First District, Kentfield

1020 N STREET, SACRAMENTO, CALIFORNIA
(P.O. BOX 942879, SACRAMENTO, CALIFORNIA 94279-0001)
(916) 324-3828

BRAD SHERMAN
Second District, Los Angeles
ERNEST J. DRONENBURG, JR.
Third District, San Diego
MATTHEW K. FONG
Fourth District, Los Angeles

December 9, 1992

GRAY DAVIS
Controller, Sacramento

BURTON W. OLIVER
Executive Director

Mr. M--- A. W--Tax Manager, B---, Inc.
P.O. Box XXX
---, Indiana XXXXX-XXXX
Re:

SC --- XX-XXXXXX
Orthotic Devices

Dear Mr. W---:
I am responding to your letter to the Legal Division dated October 13, 1992. You requested advice regarding your company’s sales of orthotic and sports therapy and rehabilitation (“START”) devices. Included with your letter were excerpts from a catalog, two lists of devices, and a START which you asked me to review. You attached an excerpt from Pamphlet No. 45, and a copy of Regulation 1591. You indicate that the majority of B---’s customers are hospitals. Many of the devices it sells are “eventually” prescribed by a physician, but the hospitals purchase several items at once. You do not indicate if the hospitals purchase the devices free of tax by issuing B--- resale certificates. OPINION A.

Sales and Use Tax Generally

In California, except where specifically exempted by statute, Revenue and Taxation Code Section 6051 imposes an excise tax, computed as a percentage of gross receipts, upon all retailers for the privilege of selling tangible personal property at retail in this state. (Unless otherwise noted, all statutory references are to the Revenue and Taxation Code.) As you are aware, Section 6369, interpreted and implemented by Title 28, California Code of Regulations, Regulation 1591, provides that sales of medicine, when prescribed and sold or furnished under certain conditions for the treatment of a human being, are exempt from sales or use tax. (Reg. 1591(a).) Subdivision(b)(1) provides that, as a rule, items used to diagnose a condition or to

Mr. Mike A. Wojtysiak

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apply medicine or treatment to the patient are not considered to be medicines.

December 9, 1992
425.0162

Mr. Mike A. Wojtysiak

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December 9, 1992
425.0162

As you also note, Regulation 1591(b) does provide that certain items which might otherwise be considered as being devices, etc., are defined as “medicines.” Regulation 1591(b)(4) includes orthotic devices, or their replacements, designed to be worn on the person of the user as a brace, support, or other correction for the body structure. Although splints are generally not considered medicines, they may be so if used as a support, brace, or other correction for the body structure. Such devices that merely restrict mobility in the affected area are not medicines. We have previously determined the tax status of most of these devices. B.

Tax Consequences to B---

1.
Head & Neck/ Chest/ Back & Abdominal Supports are considered to be orthotic devices when used for the above purposes. 2. Shoulder/ Upper Arm/ Elbow/ Wrist and Forearm Supports. Clavicle, elbow, and wrist supports, slings, and shoulder immobilizers are orthotic devices when used as supports, braces, or other correction for the body structure. (Reg. 1591(b)(4).) I could not determine from the copy of the catalog what a “Pavlik Harness” was, except that it was used on infants. As a result, you must consider it to be a taxable device pending further information. 3 Hip/ Thigh/ Knee/ Lower Leg and Foot Supports. We have previously determined hip, knee, and ankle supports to be orthotic devices because they help support the body structure. The abduction cushion is, however, a taxable appliance. 4. Splints and Braces. We have previously determined that aluminum arm splints, finger splints, knuckle benders, and leg splints are exempt orthotic devices. Leg Boots are not, however. 5. Support Accessories and Supplies. Tension pillows do not appear to be worn on the body and so do not qualify as orthotic devices. We have previously determined that post-op shoes, rocker cast shoes, Reed cast belts, cast boots, heel and elbow protectors, bandages, restraints, and padding are taxable devices. 6. START Products. We have previously determined knee sleeves and patella stabilizers, shoulder cuffs and sleeves, wrist and elbow supports, ankle braces, and rehabilitation knee braces to be orthotic devices. Your categories, “Other CTN Sleeves and Products,” and “Athletic Bandages and Splints,” are too general for me to render an opinion, and the brochure does not describe the items you categorize as “Soft Sports Medicine Products.” Sales of these items are taxable pending further information.

Mr. Mike A. Wojtysiak

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December 9, 1992
425.0162

I hope the above discussion has answered your question. If you need anything further, please do not hesitate to write again. Sincerely,

John L. Waid
Tax Counsel

JLW:es