Is the Berman Airway, a mouthpiece that keeps the mouth open and tongue down, exempt from Texas sales tax?

Plain-English summary

A taxpayer asked the Comptroller how Texas sales tax applies to the Berman Airway, a medical device described as a mouthpiece that keeps the mouth open and the tongue down. The Comptroller explained that the device is used either to keep the airway open or to keep the mouth open so it doesn't close on tubes delivering oxygen to the body, and ruled that the Berman Airway is exempt from sales tax when used in that manner.

The letter is short and does not cite a specific statute or rule number. It simply describes the device's medical function and states the exemption conclusion, noting that the opinion is based on the facts presented and that different facts, even if similar, might lead to a different answer.

What this means for you

Patients and individuals with medical needs

If you or a family member uses a Berman Airway to keep an airway open or to keep the mouth open so tubes delivering oxygen don't get blocked, this letter indicates the device should be exempt from Texas sales tax when purchased for that purpose.

Businesses selling medical devices

If you sell the Berman Airway or similar mouthpiece devices used to maintain an open airway or hold the mouth open for oxygen delivery, this letter indicates you may be able to sell the device tax-free when it is used in that specific manner. Because the letter doesn't cite a statute, you should confirm the applicable exemption provision with the Comptroller or a tax professional before relying on this letter for other products.

Accountants and tax professionals

This is a brief, fact-specific letter with no statutory citation, so it's most useful as evidence of the Comptroller's position on this exact device and use rather than as a source of detailed legal reasoning. If a client asks about the taxability of a similar airway-maintenance device, this letter shows the Comptroller has treated at least this one as exempt when used for its stated medical purpose.

Common questions

Q: Is the Berman Airway exempt from Texas sales tax?
A: Yes, according to this letter, when it is used to keep the airway open or to keep the mouth open so it doesn't close on tubes delivering oxygen to the body.

Q: Does the letter cite a specific statute for the exemption?
A: No. The letter states the conclusion without referencing a statute or rule number.

Q: Would the exemption still apply if the device were used for a different purpose?
A: The letter says the opinion is based on the facts presented and that different facts, though similar, might lead to different answers, so a different use isn't necessarily covered by this ruling.

Q: Is this ruling still useful today even though it's from 1994?
A: It shows the Comptroller's position on this specific device at the time, but because the letter gives no statutory citation and STAR letters can only be relied upon by the original requester, taxpayers should confirm current law rather than relying on this letter alone.

Citations and references

The original letter does not cite any specific statute or rule by number.

Source

• STAR search: https://star.comptroller.texas.gov/search?doc_type_code=L&tax_type_code=SST
• Opinion: https://star.comptroller.texas.gov/view/9404L1295G13

Original ruling text

April 11, 1994

Dear *****:

This is in response to your letter dated March 24, 1994,
regarding sales tax as it applies to a particular medical
device.

The Berman Airway is a mouthpiece that keeps the mouth open
and the tongue down. It is utilized to either (1) keep the
airway open or (2) keep the mouth open so it does not close
up on any tubes delivering oxygen to the body.

The Berman Airway is exempt from tax when used in the manner
described above.

This opinion is based on the facts presented. Different
facts, though similar, might lead to different answers. If
you have any questions or need more information, please
write or call me toll free at 1-800-531-5441, extension
5-0330, or 512-475-0330.

Sincerely,

Bettie Peterson
Tax Administration Division

NOTE: Previous Accession Number 9404234L