Is a kegel pelvic-floor exercise device exempt from NY sales tax as medical equipment?

Plain-English summary

The petitioner sells a kegel exercise device -- a portable, resistive device inserted into the vagina; the user performs kegel contractions against it to strengthen the pelvic-floor muscles. The seller described its uses as: improving/preventing incontinence, promoting a healthier female core, increasing sexual pleasure, and, if used before childbirth or pelvic surgery, easing childbirth and recovery. It asked whether the device is exempt as medical equipment.

The Office of Counsel concluded it is taxable:

• The test. Tax Law 1115(a)(3) exempts medical equipment and supplies, but to qualify, equipment must be primarily and customarily used for medical purposes and not generally useful in the absence of illness, injury, or physical incapacity (20 NYCRR 528.4(e)). Exemptions are strictly construed, and the burden is on the person claiming them (528.1(c)).
• This device has general uses. By the seller's own description, the device can be used for many purposes -- including increasing sexual pleasure and promoting a "healthier core" -- so it is generally useful even for healthy people. The seller did not show it is primarily and customarily used for medical purposes.
• Result. Because it may be generally useful absent illness, injury, or physical incapacity, it doesn't qualify for the medical-equipment exemption and is subject to sales tax.

What this means for you

Sellers of pelvic-floor, fitness, and "wellness" devices

A product that also serves general fitness, comfort, or sexual-wellness purposes generally won't qualify as exempt medical equipment in New York, even if it has real health benefits and is marketed for a condition like incontinence. The exemption asks whether the type of item is primarily/customarily medical and useless to a healthy person -- and you bear the burden of proving it. Dual-use items are taxable.

Common questions

Q: Our device helps prevent incontinence -- isn't that medical? A: Helping with a condition isn't enough. If the item is also generally useful to healthy people (here, for a "healthier core" and sexual pleasure), it fails the primarily-and-customarily-medical test and is taxable.

Q: Does marketing it as a medical or therapeutic device make it exempt? A: No. The Department looks at whether the item is primarily/customarily medical and not generally useful absent illness; multi-use marketing actually cuts against exemption.

Q: Who has to prove it's exempt?
A: The seller. Exemptions are strictly construed and the burden of proving non-taxability is on the person claiming it.

Citations and references

• Tax Law section 1105(a) (tax on retail sales of tangible personal property)
• Tax Law section 1115(a)(3) (exemption for medical equipment and supplies)
• 20 NYCRR section 528.1(c) (exemptions strictly construed; burden on claimant)
• 20 NYCRR section 528.4(e) (medical equipment must be primarily/customarily used for medical purposes)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2012.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a12_13s.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-12(13)S
Sales Tax
June 27, 2012

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S111214A

The Department of Taxation and Finance received a Petition for Advisory Opinion from name and address redacted. Petitioner asks whether its product qualifies for the exemption under the sales and use tax law for medical equipment and supplies. We conclude that Petitioner’s product does not qualify for the exemption. Facts Petitioner’s product is a kegel exercise device. The product is a resistive device used to improve and/or prevent incontinence and promote a healthier female core. The device is portable, resistive and easy to insert, remove and clean. The product is inserted into a user’s vagina and the user will perform kegel muscular contractions against the device to strengthen pelvic floor muscles. The device will aid in strengthening the pelvic floor muscles by keeping them young and healthy to prevent and eliminate incontinence. The device will also increase sexual pleasure and, if used prior to childbirth or pelvic surgery, it will ease childbirth and the recovery of childbirth or pelvic surgery. Analysis Retail sales of tangible personal property are subject to sales tax. See Tax Law § 1105(a). Tax Law § 1115(a)(3) exempts medical equipment and supplies from sales and compensating use tax, unless purchased at retail for use in performing medical and similar services for compensation. An exemption is strictly construed and the burden of proving that an exemption applies is on the person claiming the exemption. See 20 NYCRR § 528.1(c). Medical equipment is defined as machinery, apparatus and other devices other than prosthetic aids, hearing aids, eyeglasses and artificial devices, etc., 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. See 20 NYCRR 528.4(e)(1). To qualify for the exemption, the equipment must be primarily and customarily used for medical purposes and not be generally useful in the absence of illness, injury, or physical incapacity. See Tax Law § 1115(a)(3); 20 NYCRR § 528.4(e)(2). As stated above, Petitioner’s device can be used for many different purposes. Some of these uses are to improve and/or prevent incontinence, promote a healthier female core, increase sexual pleasure, ease childbirth and ease recovery from childbirth or pelvic surgery. Since Petitioner has not shown that its product is to be primarily and customarily used for medical purposes and Petitioner has stated that it may be generally useful in

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TSB-A-12(13)S
Sales Tax
June 27, 2012

the absence of illness, injury or physical incapacity, the device will not qualify for the exemption under the sales and compensating use tax laws as medical equipment and supplies.

DATED: June 27, 2012

NOTE:

/S/
DEBORAH R. LIEBMAN
Deputy Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the facts set forth therein and is binding on the Department only with respect to the person or entity to whom it is issued and only if the person or entity fully and accurately describes all relevant facts. An Advisory Opinion is based on the law, regulations, and Department policies in effect as of the date the Opinion is issued or for the specific time period at issue in the Opinion. The information provided in this document does not cover every situation and is not intended to replace the law or change its meaning.