Are breast prostheses and the special bras that hold them exempt from Texas sales tax?

Subject

Bra — Holds Breast Prosthesis

Plain-English summary

A taxpayer wrote to the Comptroller asking whether several breast-prosthesis-related products were taxable: a silicone breast prosthesis prescribed by a doctor, breast prosthesis bras with built-in pockets, regular bras with sewn-in stretch pockets, breast forms (lighter and cheaper than silicone prostheses), and breast pads (worn under a silicone prosthesis to fill out a deep cavity after a radical mastectomy so both sides match).

The Comptroller held that the breast prosthesis, breast pads, and breast forms are all exempt as prosthetic devices under Rule 3.284(a)(10) because they replace a missing breast. The bras -- whether they have built-in pockets or sewn-in stretch pockets -- are also exempt when they are specially made to hold a breast prosthesis for women who have had breast surgery. The Comptroller reasoned that these bras count as "related supplies" for the prosthesis, not as ordinary clothing.

What this means for you

Sellers of mastectomy/prosthesis products

Silicone breast prostheses, breast forms, and breast pads sold to replace a missing breast can be sold exempt from Texas sales tax as prosthetic devices. Bras designed with built-in or sewn-in pockets specifically to hold a breast prosthesis are also exempt as related supplies -- but this exemption is tied to the bra's special construction for holding a prosthesis, not to bras in general.

Consumers who have had breast surgery

You should not be charged sales tax on a prescribed breast prosthesis, breast form, breast pad, or a specially made prosthesis-holding bra purchased in Texas.

Accountants and tax professionals

The exemption turns on function: an item that replaces a missing breast, or that is specially constructed to hold such a replacement item in place, qualifies as a prosthetic device or related supply under Rule 3.284(a)(10). The letter notes this answer is based on the facts presented and that different facts could produce a different result.

Common questions

Q: Is a silicone breast prosthesis taxable in Texas?
A: No. Per this letter, it is exempt as a prosthetic device under Rule 3.284(a)(10) when prescribed by a doctor.

Q: Are bras with pockets to hold a breast prosthesis taxable?
A: No. The Comptroller treated both built-in-pocket prosthesis bras and regular bras with sewn-in stretch pockets as exempt related supplies for the prosthesis, when specially made for women who have had breast surgery.

Q: What about breast forms and breast pads?
A: Both are exempt as prosthetic devices under this letter -- breast forms as a lighter, less expensive alternative to a silicone prosthesis, and breast pads as a supplement worn under a prosthesis to match the other breast.

Citations and references

Rules:

• 34 Tex. Admin. Code Rule 3.284(a)(10) (prosthetic devices exemption)

Source

• STAR search: https://star.comptroller.texas.gov/search?doc_type_code=L&tax_type_code=SST
• Opinion: https://star.comptroller.texas.gov/view/9605L1412G06

Original ruling text

May 8, 1996

Dear ****:

Thank you for your letter dated April 20, 1996, concerning the taxability of
the items listed below.

Silicone breast prosthesis (prescribed by a doctor).

Breast prosthesis bras - with built in pockets.

Regular bras with sewn in stretch pockets.

Breast forms - usually lighter and much less expensive than the silicone
prosthesis.

Breast pads - the purpose is to go under the silicone breast prosthesis. It is
for women who have a very deep cavity after a radical mastectomy and who does
not want a silicone prosthesis large enough to fill the cavity. The pad is used
to match the other breast so she will not look smaller on one side.

Comptroller Response: Breast prosthesis, breast pads, and breast forms that
replace a missing breast(s) are exempt as prosthetic devices. Rule 3.284(a)(10).
The bras with built in pockets or with sewn in stretch pockets that are
specially made to hold breast prosthesis by women who have had breast surgery
are also exempt. The bras would be considered related supplies for the
prosthesis.

This opinion is based on the facts presented and current law. Different facts
although similar, may result in different answers.

If you have any questions or need more information, you may call me toll free
at 1-800-531-5441, ext. 50330. The direct line is 512/475-0330. You may also
write to Tax Policy Division, Comptroller of Public Accounts.

Sincerely,

Bettie Peterson
Tax Policy Division

NOTE: Previous Accession Number 9605256L