Is a body-worn appliance that protects the hips from fracture in a fall exempt from sales tax as medical equipment or a prosthetic aid?

Plain-English summary

Robert C. Ferber, through Prevent-Wise, Inc., invented HIP-GUARD — a protective, body-worn appliance designed to keep an older person's hips from fracturing or dislocating if they fall onto a hard surface. He asked whether it could be sold tax-free as medical equipment or a prosthetic aid.

The Department said no — HIP-GUARD is taxable.

• It is not exempt "medical equipment." Under Tax Law § 1115(a)(3) and 20 NYCRR § 528.4(e), exempt medical equipment must be primarily and customarily used for medical purposes and not generally useful in the absence of illness, injury or physical incapacity. A device that just prevents injury in a healthy person by cushioning an impact does not clear that bar. The Department grouped HIP-GUARD with child car seats, football helmets, and construction hard hats — all taxable despite obviously protecting their users.
• The specifics sealed it. HIP-GUARD is useful only to someone who has not yet suffered a hip fracture (so it is "generally useful … in the absence of injury"), it does not cure, treat, or prevent an illness or disease, and — while it helps preserve health — it is not a product "consumed" (ingested) by humans, so it misses that branch of the exemption too.
• It is not a "prosthetic aid" either. Under Tax Law § 1115(a)(4) and 20 NYCRR § 528.5(b)(1), a prosthetic aid must replace a missing body part or the function of a permanently inoperative one. HIP-GUARD does neither.

What this means for you

"It prevents injury" is not the same as "it's medical equipment." New York's medical-equipment exemption is narrow: the device has to be primarily medical and essentially useless to a healthy person. Protective gear that a healthy person can wear to avoid getting hurt — helmets, pads, car seats, impact guards — stays taxable, no matter how genuinely safety-enhancing it is.

Prosthetic and artificial-device exemptions are about replacement, not protection. To fall under § 1115(a)(4), the item must stand in for a missing or permanently non-working body part. A device that shields an intact body part doesn't qualify.

If you make or sell a wellness or safety product, don't assume it's exempt. The health benefit is not the test. Confirm the specific statutory category before advertising a product as tax-free or omitting sales tax at the register.

Common questions

Q: My product genuinely prevents serious injury. Why is it still taxable?
A: Because New York asks whether it is primarily and customarily used for medical purposes and not generally useful without illness or injury. Protective devices worn by healthy people to avoid injury (helmets, hard hats, car seats, impact guards) don't meet that definition, so they are taxable.

Q: Would a doctor's recommendation make it exempt?
A: This opinion turns on what the device is and does, not on who suggests it. HIP-GUARD failed because it protects an intact hip in a healthy person rather than treating an illness or replacing a body part.

Q: What kinds of items do qualify?
A: Exempt categories include drugs and medicines, true medical equipment and supplies used to treat illness or correct physical incapacity (§ 1115(a)(3)), and prosthetic aids, hearing aids, eyeglasses, and artificial devices that replace a missing or permanently inoperative body part (§ 1115(a)(4)).

Citations and references

Statute and regulation:

• Tax Law § 1115(a)(3) — exempts drugs and medicines, medical equipment (and component parts) and supplies required for such use or to correct/alleviate physical incapacity, and products consumed by humans for the preservation of health
• Tax Law § 1115(a)(4) — exempts prosthetic aids, hearing aids, eyeglasses, and artificial devices (and component parts) purchased to correct or alleviate physical incapacity
• 20 NYCRR § 528.4(e) — defines "medical equipment"; to be exempt it must be primarily and customarily used for medical purposes and not generally useful in the absence of illness, injury or physical incapacity
• 20 NYCRR § 528.5(b)(1) — a prosthetic aid must completely or partially replace a missing body part, or the function of a permanently inoperative/malfunctioning body part
• C. D. Lane, Determination of the State Tax Commission, TSB-H-79(62)S — cited on the "consumed for preservation of health" branch (a device used, not ingested, is not "consumed")

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1988.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a88_51s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-88 (51) S
Sales Tax
October 13, 1988

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S880826C

On August 26, 1988, a Petition for Advisory Opinion was received from Robert C. Ferber,
c/o PREVENT-WISE, INC., P.O. Box 909, Jackson Heights, New York 11372.
The issue raised is whether Petitioner's product is considered to be medical equipment or a
prosthetic aid which would be exempt from sales tax pursuant to Section 1115(a)(3) or Section
1115(a)(4) of the Tax Law, respectively.
Petitioner invented HIP-GUARD, which is a protective body-worn appliance for the
prevention of hip joint fractures and dislocations, especially in older persons. The device is intended
to protect the wearer's hips in case of a fall onto a hard surface.
Section 1115(a)(3) of the Tax Law exempts from sales tax:
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....
Section 1115(a)(4) of the Tax Law exempts from sales tax:
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(e) of the Sales and Use Tax Regulations defines medical equipment as
"machinery, apparatus and other devices (other than prosthetic aids, hearing aids, eyeglasses and
artificial devices...), 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". To
qualify for exemption, equipment must be primarily and customarily used for medical purposes and
cannot be generally useful in the absence of illness, injury or physical incapacity.
Protective devices do not qualify as medical equipment merely because they prevent injury
in healthy individuals by absorbing the force caused by impact against hard surfaces. Thus, such
protective devices as child car seats, football helmets and construction hard hats are all subject to
sales tax notwithstanding their obvious usefulness in protecting their users from injury cause by
impact against a hard surface.
Petitioner's devices do not qualify as medical equipment merely because they prevent injury
in healthy individuals by absorbing the force of an impact against a hard surface. Thus, such
protective devices as child car seats, football helmets and construction hard hats are all subject to
sales tax notwithstanding their obvious usefulness in protecting their users from injury cause by
impact against a hard surface.
TP-9 (9/88)

-2­
TSB-A-88 (51) S
Sales Tax
October 13, 1988

Petitioner’s device is intended to protect the wearer’s hips from injury caused by the force
of an impact against a hard surface. Its usefulness is limited to those individuals who have not yet
suffered a hip joint fracture or dislocation. Thus, it is generally useful only in the absence of such
an injury. Moreover, Petitioner's device is not intended for use in the cure, mitigation, treatment or
prevention of illness or diseases. Petitioner's device is not intended for the correction or alleviation
of physical incapacity in human beings. While Petitioner's device is a product used by humans for
the preservation of health, it is not a product consumed by humans for the preservation of health
since it is not ingested by humans. C. D. Lane, Determination of the State Tax Commission, TSB-H­
79(62)S.
Therefore, Petitioner's device does not qualify as medical equipment within the meaning of
section 1115(a)(3) of the Tax Law.
Additionally, section 528.5(b)(1) of the Sales and Use Tax Regulations states:
(1) In order 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. 20 NYCRR 528.5(b).
Petitioner's device does not completely or partially replace a missing body part or the function
of a permanently inoperative or permanently malfunctioning body part.
Therefore, Petitioner's device does not qualify as a prosthetic aid within the meaning of
section 1115(a)(4) of the Tax Law.
Accordingly, Petitioner's device does not qualify for exemption from sales tax pursuant to
either Section 1115(a)(3) or Section 1115(a)(4) of the Tax Law.

DATED: October 13, 1988

s/FRANK J. PUCCIA
Director
Technical Services

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