Were a skin cleanser and conductive gel used during medical diagnostic procedures exempt from Florida sales tax?

Plain-English summary

The skin cleanser and conductive gel were taxable medical supplies on the stated facts.

The products were used during diagnostic procedures such as an EEG, but they were not prescribed to individual patients as medicine or a medicinal salve. The Department found no specific exemption covering them and said sales to physicians, hospitals, and similar purchasers remained taxable even when the products were used in medical treatment.

What this means for you

Use in a medical procedure alone did not establish an exemption. The seller needed a specific statutory or regulatory exemption or valid resale documentation.

Common questions

Q: Was the skin cleanser exempt?
A: No.

Q: Was the conductive gel exempt?
A: No.

Q: Could a purchaser buy the products exempt for resale?
A: Yes, if registered with the Department and if it gave the seller a properly executed resale and exemption certificate at the time of sale.

Citations and references

• Fla. Stat. § 212.05(1)(a)1.a — tax on retail sales of tangible personal property
• Fla. Stat. §§ 212.08(2)(a) and 212.21(2) — medical exemptions and intent to tax unless specifically exempt
• Fla. Admin. Code rr. 12A-1.020(6), 12A-1.021(1)(a), and 12A-1.038(1) — medical products and exemption documentation
• Asphalt Pavers, Inc. v. Department of Revenue, 584 So. 2d 55 (Fla. 1st DCA 1991)
• Department of Revenue v. Skop, 383 So. 2d 678 (Fla. 1980)
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 95A-004

Original ruling text

Jan 24, 1995

Re: TAA 95A-004
Medical Products and Supplies
Sections 212.05(1)(a)1.a., 212.08(2)(a), 212.21(2), F.S.
Rules 12A-1.020(6), 12A-1.021(1)(a), 12A-1.038(1), F.A.C.

Dear :

This is in response to your letter of November 2, 1994, in
which you requested the issuance of a technical assistance
advisement regarding the taxability of your company's sale of
the following medical products and supplies which are used as
part of a medical procedure such as an EEG:

1) XXX -

a cleanser in the form of a cream used to

remove dirt and oils from the skin before
the electrode paste is applied.
2) XXX -

a gel used as a conduit between the

patient's skin and the electrode.

You stated that a customer of your company was advised by
Florida Department of Revenue personnel that the sale of XXX is
exempt from tax when sold pursuant to a prescription by a
licensed practitioner of the healing arts for a specific
condition of a patient. You also stated that the products in
question are used primarily as part of a medical diagnostic
procedure and are not prescribed to individual patients as a
medicine or medicinal salve.

APPLICABLE AUTHORITY

Section 212.05(1)(a)1.a., F.S., provides in part:

"212.05 Sales, storage, use tax.--It is hereby declared to
be the legislative intent that every person is exercising a
taxable privilege who engages in the business of selling
tangible personal property in this state....
"(1) For the exercise of such privilege, a tax is levied on

each taxable transaction or incident, which tax is due and
payable as follows:
"(a)1.a. At the rate of 6 percent of the sales price of
each item or article of tangible personal property when
sold at retail in this state, computed on each taxable sale
for the purpose of remitting the amount of tax due the
state, and including each and every retail sale...."

Section 212.21(2), F.S., provides in part:

"(2) It is hereby declared to be the specific legislative
intent to tax each and every sale, admission, use, storage,
consumption, or rental levied and set forth in this
chapter, except as to such sale, admission, use, storage,
consumption, or rental as shall be specifically exempted
therefrom by this chapter subject to the conditions
appertaining to such exemption."

Section 212.08(2)(a), F.S., provides in 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; hypodermic needles; hypodermic syringes;
chemical compounds and test kits used for the diagnosis or
treatment of human disease, illness, or injury; and common
household remedies recommended and generally sold for
internal or external use in the cure, mitigation,
treatment, or prevention of illness or disease in human
beings, but not including cosmetics or toilet articles,
notwithstanding the presence of medicinal ingredients
therein, 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. 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...."

Rule 12A-1.020(6)(a) and (b), F.A.C., provides:

"(6)(a) Medical products and supplies used in the cure,
mitigation, alleviation, prevention or treatment of injury,
illness, disease or incapacity are taxable, unless:
"1. Temporarily or permanently incorporated into a patient
or client by a practitioner of the healing arts licensed by
the State of Florida.
"2. Ordered and dispensed by or on the prescription of a
duly licensed practitioner authorized by the laws of the
state to prescribe medicinal drugs;
or
"3. Ordered and dispensed by a pharmacist pursuant to the
established dispensing procedures determined by the joint
committee of medical, osteopathic and pharmacy professions
as created by section 465.186, F.S.
"(b) The sale of medical products or supplies to
physicians, dentists, veterinarians and hospitals is
taxable even though the medical products or supplies may be
used in connection with medical treatment, unless the
products and supplies are specifically exempt from tax
under this rule or in Rule 12A-1.021, F.A.C."

Rule 12A-1.021(1)(a), F.A.C., provides:

"(1)(a) Prosthetic and orthopedic appliances are exempt.
The term `prosthetic and orthopedic appliances' means any
apparatus, instrument, device, or equipment used to replace
or substitute for any missing part of the body, used to
alleviate the malfunction of any part of the body, or used
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 duly licensed practitioner authorized by the
laws of the state 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 from time to
time. A list of prosthetic and orthopedic appliances (DR46NT), Nontaxable Medical and General Grocery List, dated
October, 1987, which is incorporated in this rule and made
part of this rule by reference, which has been certified to
the Department of Revenue by the Department of Health and
Rehabilitative Services, is available without cost, upon
written request directed to the Department of Revenue,
Supply Section, Tallahassee, Florida 32399-0100."

Additionally, Rule 12A-1.038(1), F.A.C., provides:

"(1) It is the specific legislative intent that each and
every sale, admission, use, storage, consumption or rental
is taxable under Chapter 212, F.S., unless such sale,
admission, use, storage, consumption or rental is
specifically exempt. The exempt status of the transaction
must be established by the dealer. Unless the dealer shall
have taken from the purchaser a certificate to the effect
that the property or service was purchased for resale and
bearing the name and address of the purchaser, the
effective date of the certificate and the number of his
dealer's certificate of registration, or a certificate
bearing the number of his consumer's exemption certificate,
and the effective date of the certificate, the sale shall
be deemed to be a taxable sale at retail, except sales of
alcoholic beverages by distributors, licensed by the
Division of Alcoholic Beverage and Tobacco, Department of
Business and Professional Regulation."

The construction of the sales and use tax law is to tax
specific sales and to provide specific exemptions from some of
those otherwise taxable transactions. In order for a taxpayer
to claim an exemption, he must clearly show that he is entitled
to the exemption. The law is to be strictly construed against
the taxpayer in the application of specific exemptions. See
Asphalt Pavers, Inc. v. D.O.R., 584 So. 2d 55 (Fla. 1st DCA
1991). Doubtful language should be resolved against the
existence of an exemption. See Department of Revenue v. Skop,
383 So. 2d 678 (1980).

The above quoted sections of Chapter 212, F.S. and rules of
the Florida Administrative Code, reveal no specific exemption
from tax for the medical products and supplies in question. In
addition, Rule 12A-1.020(6)(b), F.A.C., provides that the sale
of these medical products and supplies to physicians, hospitals,
etc., is subject to tax even though they are used in connection
with medical treatment. However, if the purchaser is registered
with the Department and extends a properly executed resale and
exemption certificate to the selling dealer at the time of sale
under the provisions of Rules 12A-1.038 and 12A-1.039, F.A.C.,
such products and supplies may be purchased exempt from tax.

This response constitutes a Technical Assistance Advisement
under s. 213.22, 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. 213.22, 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 public records under Chapter 119, F.S., which are subject to
disclosure to the public under the conditions of s. 213.22, 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 the response.

Sincerely,

Richard S. Harrod
Technical Assistant

RSH/h

Control No. 18310