Are gastrostomy feeding tubes, the 'spike set' tubing kit, and feeding machines/pumps used for tube-feeding patients exempt from sales tax as prosthetic devices?

Plain-English summary

For patients who can no longer eat by mouth -- typically because their esophagus is permanently diseased or nonfunctional -- a gastrostomy feeding tube delivers life-sustaining nutrition directly into the stomach through an opening in the abdominal wall. A "spike set" (a piercing pin, flush bag, tubing, and adapter, all specifically designed for and used exclusively in this feeding process) connects the feeding supply to the tube, and a specially designed feeding machine/pump provides the power to move the nutrients through the system. A petitioner asked whether a medical facility's purchases of these items qualify for New York's sales-tax exemption for prosthetic aids.

New York exempts prosthetic aids that completely or partially replace a missing body part or the function of a permanently malfunctioning body part, as long as they're primarily and customarily used for that purpose and aren't generally useful to people without the underlying illness or incapacity. The Department found the gastrostomy tube itself squarely meets that test -- it substitutes for the lost ability of the esophagus to carry food to the stomach -- so it's exempt regardless of whether the buyer is using it to perform medical services for compensation (an exception that otherwise applies to ordinary "medical equipment").

The tube alone can't work without the spike set delivering the feeding supply and the pump propelling it, so the Department extended the same reasoning it had already applied to hemodialysis equipment (where a dialysis machine, tubing, and connectors collectively replace a failed kidney's filtration function): because the spike set and feeding machine/pump are essential, specifically-designed, exclusively-used parts of the same prosthetic feeding regimen, they qualify as exempt prosthetic aids too. And even for any component that might not independently qualify as a prosthetic aid, it would still be exempt as medical "supplies" used in treating illness -- except when purchased for use in performing medical services for compensation, unless sold to an exempt hospital or similar organization that gives the seller a timely exemption certificate.

What this means for you

Medical equipment suppliers and manufacturers of feeding-therapy devices

Feeding-therapy components (tubes, connector/tubing kits, feeding pumps) that are specifically designed for and exclusively used in a prosthetic feeding regimen can qualify for the broader prosthetic-aid exemption -- which, unlike the general medical-equipment exemption, applies even when the buyer uses the items to perform medical services for compensation.

Hospitals and other medical facilities

If an item doesn't independently qualify as a prosthetic aid, it may still be exempt as a medical supply, but that narrower exemption doesn't cover purchases used in performing medical services for compensation -- unless the facility itself is an exempt organization under Tax Law § 1116(a) and gives the seller a properly completed exemption certificate within 90 days of the sale.

Accountants and tax professionals

This ruling extends the Department's dialysis-equipment reasoning (Cobe Laboratories, Fresenius USA) to a different but analogous prosthetic regimen -- the key legal test throughout is whether each component is essential to, specifically designed for, and exclusively used in restoring a permanently lost bodily function, not whether it independently "looks like" a prosthetic device.

Common questions

Q: Are all feeding tubes and related supplies exempt from sales tax?
A: Only those that meet the prosthetic-aid test -- specifically designed for and exclusively used to replace the lost function of a permanently malfunctioning body part, and not generally useful absent illness or incapacity. Ordinary medical equipment/supplies used for compensation-based services can be taxable unless a separate exemption applies.

Q: Does it matter that a medical facility, not an individual patient, is buying these items?
A: For the prosthetic-aid exemption specifically, no -- it applies "regardless of whether purchased for use in performing medical or similar services for compensation." That "for compensation" limitation only affects the narrower general medical-equipment/supplies exemption.

Q: Can another supplier or facility rely on this ruling?
A: No. It binds the Department only as to this petitioner and the facts described, though it applies the same reasoning as several other Department rulings on prosthetic dialysis and feeding equipment.

Citations and references

Statutes and regulations:

• Tax Law § 1105(a) (tax on retail sales of tangible personal property)
• Tax Law § 1115(a)(3) (exemption for medical equipment and supplies)
• Tax Law § 1115(a)(4) (exemption for prosthetic aids and artificial devices)
• 20 NYCRR § 528.4(e), (g) (medical equipment and supplies definitions)
• 20 NYCRR § 528.5(a), (b)(1) (prosthetic aid exemption and qualification test)

Prior rulings referenced:

• Comprehensive Dialysis Center of WNY, Inc., Adv Op Comm T&F, Aug. 4, 1998, TSB-A-98(51)S
• Cobe Laboratories, Inc., Adv Op Comm T&F, Aug. 6, 1998, TSB-A-98(53)S
• Fresenius USA, Inc., Adv Op Comm T&F, Feb. 29, 2000, TSB-A-00(12)S
• Microvasive, Inc., Adv Op Comm T&F, Mar. 28, 1989, TSB-A-89(9)S

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2000.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a00_23s.pdf

Original ruling text

New York State Department of Taxation and Finance

Office of Tax Policy Analysis
Technical Services Division

TSB-A-00(23)S
Sales Tax
May 31, 2000

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S000329A

On March 29, 2000, the Department of Taxation and Finance received a Petition for Advisory
Opinion from Tony Gilburt, 2 Hopkins Plaza, Suite 2100, Baltimore, MD 21201.
The issue raised by Petitioner, Tony Gilburt, is whether gastrostomy tubes, “spike sets” and
feeding machines/pumps purchased by a medical facility and used in conjunction with gastrostomy
feedings are prosthetic devices that are exempt from sales and compensating use tax under Section
1115(a)(4) of the Tax Law.
Petitioner submitted the following facts as the basis for this Advisory Opinion.
For patients who are incapable of oral feeding, a gastrostomy feeding allows substances
(nutrients) to enter the stomach through a tube which penetrates the abdominal wall. This feeding
regimen replaces the overall ingestion function of the human body by delivering life-sustaining
nourishment to the stomach in the patient whose diseased esophagus (the tube connecting the mouth
to the stomach) no longer functions properly or at all. Most patients that require gastrostomy tube
feedings will never again resume the oral ingestion of food.
A feeding machine specifically designed for gastrostomy feedings provides the power to
pump the nutrients (food) through the gastrostomy tube into the stomach. A “spike set,” used in
conjunction with the gastrostomy tube, contains the following items:
1.

Piercing pin - to pierce the feeding container to begin the flow of the food.

2.

Flush bag - for the flush solution.

3.

Tubing - to carry the feeding supply to the gastrostomy tube.

4.

Adapter for the gastrostomy tube - to connect the tubing to the gastrostomy tube.

The spike sets are also specifically designed for and exclusively used for gastrostomy tube feedings.
Applicable Law and Regulations
Section 1105(a) of the Tax Law imposes a tax on “[t]he receipts from every retail sale of
tangible personal property, except as otherwise provided in this article.”

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Section 1115(a) of the Tax Law exempts from the sales tax imposed by Section 1105(a) of
the Tax Law and from the compensating use tax imposed under Section 1110:
*

*

*

(3) Drugs and medicines intended for use, internally or externally, in the cure,
mitigation, treatment or prevention of illnesses or diseases in human beings, medical
equipment (including component parts thereof) and supplies required for such use or
to correct or alleviate physical incapacity, and products consumed by humans for the
preservation of health but not including . . . medical equipment (including component
parts thereof) and supplies, other than such drugs and medicines, purchased at retail
for use in performing medical and similar services for compensation.
(4) Prosthetic aids, hearing aids, eyeglasses and artificial devices and
component parts thereof purchased to correct or alleviate physical incapacity in
human beings.
Section 528.4 of the Sales and Use Tax Regulations provides, in part:
*

*

*

(e) Medical equipment. (1) Medical equipment means machinery, apparatus
and other devices (other than prosthetic aids, hearing aids, eyeglasses and artificial
devices which qualify for exemption under section 1115[a][4] of the Tax Law),
which are intended for use in the cure, mitigation, treatment or prevention of illnesses
or diseases or the correction or alleviation of physical incapacity in human beings.
(2) To qualify, such equipment must be primarily and customarily used for
medical purposes and not be generally useful in the absence of illness, injury or
physical incapacity.
*

*

*

(4) Medical equipment is not exempt if purchased by a person performing
medical or similar services for compensation. . . .
*

*

*

(g) Supplies. (1) Supplies used in the cure, mitigation, treatment or
prevention of illnesses or diseases or for the correction and alleviation of physical
incapacity are exempt.

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*

*

*

(2) Medical supplies are not exempt if purchased by a person performing
medical or similar services for compensation. . . .
Section 528.5 of the Sales and Use Tax Regulations provides, in part:
(a) Exemption. Prosthetic aids, hearing aids, eyeglasses and artificial devices
and component parts thereof, purchased to correct or alleviate physical incapacity in
human beings are exempt from the tax.
(b) Qualifications. (1) In order to qualify as a prosthetic aid, a hearing aid,
eyeglasses or an artificial device, the property must either completely or partially
replace a missing body part or the function of a permanently inoperative or
permanently malfunctioning body part and must be primarily and customarily used
for such purposes and not be generally useful in the absence of illness, injury or
physical incapacity.
Opinion
Section 1115(a)(4) of the Tax Law exempts from sales and compensating use taxes receipts
from the sales of prosthetic aids which alleviate physical incapacity in human beings. To qualify as
a prosthetic aid, the property must either completely or partially replace a missing body part or the
function of a permanently inoperative or permanently malfunctioning body part, and must be
primarily and customarily used for such purposes and not be generally useful in the absence of
illness, injury or physical incapacity. See Section 528.5(b)(1) of the Sales and Use Tax Regulations.
In this case, it is the function of the gastrostomy tubes, “spike sets” and feeding machines/pumps
purchased by the medical facility that is key in determining whether these items should be classified
as exempt prosthetic aids or as medical equipment or supplies which, under Section 1115(a)(3) of
the Tax Law, are taxable when purchased at retail for use in the performance of medical or similar
services for compensation (see Comprehensive Dialysis Center of WNY, Inc., Adv Op Comm T&F,
August 4, 1998, TSB-A-98(51)S; Cobe Laboratories, Inc., Adv Op Comm T&F, August 6, 1998,
TSB-A-98(53)S; Microvasive, Inc., Adv Op Comm T&F, March 28, 1989, TSB-A-89(9)S).
The treatment for a patient with a failed esophagus, through which food can no longer pass
into the stomach, is feeding through the use of a gastrostomy tube. A gastrostomy tube carries the
life-sustaining nourishment directly into the stomach through an opening in the patient’s abdominal
wall. As such, when substituting its ability to carry the food into the stomach for the lost ability of
a permanently malfunctioning body part, the gastrostomy tube qualifies as a prosthetic aid as defined
in Section 528.5(b)(1) of the Sales and Use Tax Regulations and its purchase is not subject to sales
or use tax, regardless of whether it is purchased for use in performing medical or similar services for
compensation (see Microvasive, Inc., supra).

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The gastrostomy tube alone cannot perform its function without the spike set to carry the
feeding supply to it and the pumping action of the feeding machine to propel the food. In Cobe
Laboratories, Inc., supra, and Fresenius USA, Inc., Adv Op Comm T&F, February 29, 2000,
TSB-A-00(12)S, it was found that the dialysis machine/tubing/connectors and fistula needles,
respectively, are all part of the prosthetic hemodialyis regimen which pumps blood to and from a
dialyzer (artificial kidney). Collectively, these items and the dialyzer replace the filtration function
of a failed human kidney. Similar to these items, the spike set and feeding machine/pump are
essential to the gastrostomy feeding process and contribute to the restoration of the lost function of
the esophagus as part of the feeding regimen. Moreover, since they are specifically designed for and
are exclusively used in gastrostomy feeding treatment, they satisfy the regulatory requirement that
they be primarily and customarily used for such purposes and are not generally useful in the absence
of illness, injury or physical incapacity. Accordingly, purchases by the medical facility of spike sets
and feeding machines/pumps that replace a missing body part or the function of a permanently
inoperative or malfunctioning body part (in conjunction with gastrostomy tubes which qualify for
exemption as prosthetic aids) are also exempt from sales tax under Section 1115(a)(4) of the Tax
Law (see Comphrehensive Dialysis Center of WNY, Inc., supra; Cobe Laboratories, Inc., supra;
Fresenius USA, Inc., supra). Moreover, spike sets and feeding machines/pumps that are not exempt
under Section 1115(a)(4) of the Tax Law but that are used in the cure, mitigation, treatment or
prevention of illness or disease in human beings or to correct or alleviate physical incapacity are
exempt from sales and use taxes pursuant to Section 1115(a)(3) of the Tax Law, except when
purchased at retail for use in performing medical and similar services for compensation. The sale
of such items to a hospital or other organization qualifying for exemption under Section 1116(a) of
the Tax Law would be exempt from the imposition of sales tax even if such entity was using the
devices in performing medical services for compensation, provided a properly completed exemption
certificate is furnished to the seller within ninety days of the date of sale. See Section 1132(c) of the
Tax Law.

DATED: May 31, 2000

NOTE:

/s/
John W. Bartlett
Deputy Director
Technical Services Division

The opinions expressed in Advisory Opinions are limited to
the facts set forth therein.