LR 7702

Taxability of the Sale of Mouth Guards

April 05, 2016

Dear Applicant:

     This is a letter ruling issued by the Director of Revenue under Section 536.021.10, RSMo, and Missouri Code of State Regulations 12 CSR 10-1.020, in response to your letter dated February 18, 2016.

     The facts as presented in your letter ruling request are summarized as follows:

Applicant is a dental supply and service distributor. Applicant intends to start selling two types of mouth guards. The first type of mouth guard is a "boil and bite" mouth guard for use during athletic events. The second type of mouth guards are laminates used by a dentist to create a mouth guard for either athletics or for use during sleep to prevent the grinding of teeth.

ISSUE 1:

     Is the sale of the "boil and bite" mouth guard subject to tax?

RESPONSE 1:

     Yes. The sale of the "boil and bite" mouth guard is subject to tax.

     Section 144.020.1(1), RSMo, imposes a sales tax "[u]pon every retail sale in this state of tangible personal property".

     Section 144.030.2(19), RSMo, in relevant part, exempts from sales or use tax:

All sales of insulin and prosthetic or orthopedic devices as defined on January 1, 1980, by the federal Medicare program pursuant to Title XVIII of the Social Security Act of 1965, including the items specified in Section 1862(a)(12) of that act . . .

     Missouri Code of State Regulations 12 CSR 10-110-013(2(A) defines an orthopedic device as "a rigid or semirigid leg, arm, back or neck brace and casting materials which are directly used for the purpose of supporting a weak or deformed body member or restricting or eliminating motion in a diseased or injured part of the body" and (D) defines a prosthetic device as "a device that replaces all or part of the function of a permanently inoperative or malfunctioning internal body organ and is medically required."

     The "boil and bite" mouth guard is tangible personal property and is subject to tax unless there is an exemption. Missouri Code of State Regulations 12 CSR 10-110.013 lists the various exemptions for orthopedic and prosthetic devices for dental and orthodontic purposes. The "boil and bite" mouth guard does not fall within the definitions of orthopedic or prosthetic devices and is not included in any of the listed exemptions of the regulation. Therefore, the sale of the "boil and bite" mouth guard is subject to tax.

ISSUE 2:

     Is the sale of the laminate mouth guard subject to tax?

RESPONSE 2:

     Yes. The sale of the laminate mouth guard is subject to tax. See Response 1.

     This letter ruling is binding upon the Department of Revenue with respect to the Applicant for three (3) years from the date of this letter and is subject only to statutory changes by the General Assembly and to changes in the interpretation of law by the courts or administrative tribunals. If a change occurs, the taxpayer who relies upon an outdated interpretation may be subject to additional taxes, interest and penalties, which may be imposed prospectively from the date of the change. For this reason, the interpretation set forth above should be reviewed on a regular basis. Please note that any change in or deviation from the facts as presented will render this ruling inapplicable.

     Should additional information be needed, please contact Associate Counsel Christopher Fehr, General Counsel's Office, Post Office Box 475, Jefferson City, Missouri 65105-0475 (phone 573-751-0961), or me.

Sincerely,

Nia Ray