LR 8227
Taxability of Teeth Whitening Treatment
December 30, 2022
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 November 4, 2022.
The facts as presented in your letter ruling request, subsequent phone conversation, and information gathered from your vendor's website, are summarized as follows:
Applicant is a dental practice. As part of their practice, Applicant provides some patients gel refills for professional whitening. This gel is not for retail sale, and is sold only to patients of the practice by a dentist as a professional tooth whitening treatment. According to the vendor of the gel's website, it is a dentist-prescribed, home teeth bleaching system.
ISSUE:
Should Applicant be charging their patients sales tax when the gel refills are issued as part of their professional teeth whitening?
RESPONSE:
Yes. Applicant should be charging sales tax when the gel refills are issued to their patients.
Section 144.020, RSMo, imposes a sales tax on the privilege of making retail sales of tangible personal property or providing certain taxable services in this state.
However, section 144.010.1(13), RSMo, provides that the definition of "sale at retail" shall not include:
...(i). purchases of tangible personal property made by duly licensed physicians, dentists, optometrist and veterinarians and used in the practice of their professions shall be deemed to be purchases for use or consumption and not for resale.
This is further described in 12 CSR 10-103.395:
In general, physicians, dentists, and optometrists are rendering services not subject to tax. Tangible personal property purchased by physicians, dentists, and optometrists and used or consumed in the practice of their professions is subject to tax when purchased. Tangible personal property purchased by physicians, dentists, and optometrists and not used or consumed in the practice of their professions is subject to tax when resold by them.
Section 332.181, RSMo, provides:
No person shall engage in the practice of dentistry in Missouri without having first secured a license as provided for in this chapter.
Additionally, section 332.366, RSMo, contains:
Any person who provides teeth whitening services to another person by use of products not readily available to the public through over-the-counter purchase shall be deemed to be engaging in the practice of dentistry. Licensed dental hygienists or dental assistants may apply teeth whitening formulations, formulations, but only under the appropriate level of supervision of a licensed dentist as established by rule. Any individual who take the dental impression of another person or who performs any phase of any operation incident to teeth whitening, including but not limited to the instruction or application of on-site teeth whitening materials or procedures, except under the appropriate level of supervision of a licensed dentist, shall be engaging in the practice of dentistry.
Here, Applicant provides gel refills to their patients as part of their teeth whitening services. Section 332.336, RSMo, describes two situations where a non-dentist may apply the teeth whitening services, and have it still be considered the practice of dentistry for purposes of the statute. Both require the "appropriate level of supervision of a licensed dentist." Although the gel refills are not readily available through over the counter purchase, and provided by a licensed dentist, they are applied without any supervision from a licensed dentist, at the home of the patient.
Because the gel is applied outside of the supervision from a licensed dentist, it is not considered to be a part of the practice of dentistry for purposes of section 332.336, RSMo.
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 Legal Counsel J. Ross Shelton, General Counsel's Office, Post Office Box 475, Jefferson City, Missouri 65105-0475, phone (573) 751-0961.
Sincerely,
Wayne Wallingford
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