Maxxim Medical, Inc. v. Tracy

[Cite as Maxxim Med., Inc. v. Tracy, 87 Ohio St. 3d 337, 1999-Ohio-136.]
MAXXIM MEDICAL, INC., APPELLANT, v. TRACY, TAX COMMR., APPELLEE.
[Cite as Maxxim Med., Inc. v. Tracy (1999), 87 Ohio St. 3d 337.]
Taxation — Decision of Board of Tax Appeals finding transcutaneous electrical
nerve stimulators and neuromuscular electrical stimulators subject to sales
tax affirmed.
(No. 98-2252 — Submitted June 23, 1999 — Decided December 29, 1999.)
APPEAL from the Board of Tax Appeals, No. 94-X-224.
Maxxim Medical, Inc. (“Maxxim”) sells and leases transcutaneous electrical
nerve stimulators (“TENS”) and neuromuscular electrical stimulators (“NMES”)
and associated equipment. After a sales and purchase audit, and a test check of
sales, the Tax Commissioner issued a sales tax assessment against Maxxim for the
audit period December 1, 1987 through December 31, 1990.
The TENS unit is a battery-powered stimulation device that sends electrical
impulses through wires to electrodes attached to the user’s skin by an adhesive
patch. The electrical impulses generated by the TENS unit act either to block pain
or to contract or relax a patient’s muscles. The electrodes from a TENS unit can be
placed wherever there are nerves and muscles; for instance, they can be placed on
the back, shoulders, neck, wrists, fingers, or arms.
The NMES unit is another battery-powered stimulator similar to the TENS
unit, except it is used to cause involuntary contractions or flexing of larger muscle
groups on both the upper and lower extremities. A possible use for a NMES unit
would be to control foot drop. When used for this purpose, the electrodes attached
to the skin stimulate, in a coordinated manner, the various muscle groups that
control the foot while walking, so that the heel will land first. The NMES unit can
also be used to stimulate muscles on the arms, shoulders, and back.
When this case was previously before this court in Maxxim Med., Inc. v.
Tracy (1996), 76 Ohio St. 3d 1201, 666 N.E.2d 1140 (“Maxxim I”), we granted
Maxxim’s motion for remand to the Board of Tax Appeals (“BTA”), based upon
our decision in Kempf Surgical Appliances, Inc. v. Tracy (1996), 74 Ohio St. 3d
517, 660 N.E.2d 444. Kempf determined that TENS and NMES units were not
braces or other devices that supported weakened or nonfunctioning parts of the
human body. We had remanded Kempf to the Board of Tax Appeals (“BTA”) for a
determination of whether the TENS and NMES devices aided perambulation
within the meaning of R.C. 5739.02(B)(19).
On remand, the BTA in Maxxim found that the TENS and NMES units
could be used to aid human perambulation. However, the BTA also found that the
units could be used to strengthen “dysfunctional parts of the body, akin to physical
fitness equipment, which is expressly excluded from the exemption.” Because of
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the possible multiple uses of the units, the BTA held that Maxxim must present
evidence of the actual use of the device by the end user. The evidence presented
by Maxxim failed to prove that the units whose sale was in question were being
used by the buyer in an exempt manner.
This court in Maxxim I also reserved judgment on whether Maxxim must
collect sales tax from persons receiving TENS or NMES units paid for by the Ohio
Bureau of Workers’ Compensation (“BWC”). In its initial decision, Maxxim Med.,
Inc. v. Tracy (Nov. 3, 1995), BTA No. 94-X-224, unreported, the BTA held that
former R.C. 4121.44(P) did not prevent Maxxim from collecting the tax from the
patient receiving the TENS or NMES units. The BTA on remand found no basis
for reconsidering its earlier determination.
This cause is now before this court upon an appeal as of right.
__________________
Buckingham, Doolittle & Burroughs, L.L.P., Steven A. Dimengo and William
G. Nolan, for appellant.
Betty D. Montgomery, Attorney General, and Robert C. Maier, Assistant
Attorney General, for appellee.
__________________
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Per Curiam. Maxxim contends that R.C. 5739.03(B) relieves it from
establishing each customer’s use and therefore all its sales of TENS and NMES
units were exempt. We disagree.
R.C. 5739.02 provides that an “excise tax is hereby levied on each retail sale
made in this state,” and for the proper administration of R.C. Chapter 5739 “to
prevent the evasion of the tax, it is presumed that all sales made in this state are
subject to the tax until the contrary is established.” Thus, until proven exempt or
excepted from taxation, all retail sales are taxable.
R.C. 5739.03(B) provides two opportunities for a vendor to relieve itself of
the obligation to collect the tax. If a sale is claimed to be exempt, the consumer
must furnish the vendor a certificate specifying the reason the sale is not legally
subject to tax. The certificate must be furnished within the period for filing the
return in which the sale is consummated. R.C. 5739.03(B) further provides that if
no exemption certificate is obtained within the period for filing the return, it shall
be presumed that the tax applies. Here, no exemption certificates were provided to
Maxxim by its customers for the sales being contested.
R.C. 5739.03(B) provides a second chance for a vendor to establish that a
sale is not subject to the tax by providing that, after a vendor has received a notice
of intention to levy an assessment, it may obtain letters of usage from its
customers. By means of timely and proper letters of usage the vendor may
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establish that the sale is not subject to the tax. No disallowed letters of usage are
being questioned in this appeal.
Finally, R.C. 5739.03(B) provides that certificates need not be obtained, or
furnished, when the identity of the consumer is such that the transaction is never
subject to the tax imposed or the item of personal property sold is never subject to
the tax regardless of use. Maxxim relies upon this latter portion of R.C.
5739.03(B) to claim that its sales are not subject to tax.
In Federated Dept. Stores, Inc. v. Lindley (1983), 5 Ohio St. 3d 213, 215, 5
OBR 455, 457, 450 N.E.2d 687, 688, we stated that “when an assessment is
contested, the taxpayer has the burden ‘ * * * to show in what manner and to what
extent * * * ’ the commissioner’s investigation and audit, and the findings and
assessments based thereon, were faulty and incorrect.” The Tax Commissioner’s
findings are presumptively valid, absent a demonstration that those findings are
clearly unreasonable or unlawful. Hatchadorian v. Lindley (1986), 21 Ohio St. 3d
66, 21 OBR 365, 488 N.E.2d 145, paragraph one of the syllabus. Thus, the burden
was on Maxxim to prove that its sales of the TENS and NMES units were exempt
regardless of use.
R.C. 5739.02 does except from taxation the sale of certain personal property
no matter what its use, for instance, the sales of food for human consumption off
the premises where sold. Additional examples of sales that are exempt regardless
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of the use are contained in R.C. 5739.02(B)(1) to (11). However, the sale of TENS
and NMES units is not among those sales listed as being exempt regardless of the
use. Maxxim has not referred us to any statute that would exempt the sales of the
TENS and NMES units regardless of use.
Here the only asserted exemption for the sale of TENS and NMES units is
contained in R.C. 5739.02(B)(19), which provides an exemption for “devices to aid
human perambulation” and “items of tangible personal property used to
supplement impaired functions of the human body such as respiration, hearing, or
elimination.” While the BTA did find that the TENS and NMES units “can aid
human perambulation,” it also found that the TENS and NMES units can be used
to strengthen “dysfunctional parts of the body, akin to physical fitness equipment.”
(Emphasis by BTA.) R.C. 5739.02(B)(19) specifically provides that no exemption
is allowed for “physical fitness equipment.” The evidence showed that the units
have a multitude of uses, including treatment of elbow and shoulder ailments,
itching, and chronic pain throughout the body. These uses do not aid human
perambulation.
The mere fact that a device “can” be used for an exempt purpose, such as
aiding human perambulation or to supplement impaired functions of the human
body such as respiration, hearing, or elimination, does not mean that its sale is
always exempted or excepted from taxation regardless of its use. Because the sales
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of TENS and NMES units are not exempt from tax regardless of their use, Maxxim
had to provide either certificates of exemption or acceptable letters of usage to
account for its failure to collect the tax. Maxxim failed to provide such documents
for the sales in dispute and, therefore, failed to meet its burden of proof.
Maxxim contends that no tax can be charged to the patient/consumer
receiving the TENS and NMES units that were paid for by the Bureau of Workers’
Compensation (“BWC”). We disagree.
Maxxim bases its contention on former R.C. 4121.44(P). Maxxim argues
that R.C. 4121.44(P) prevents the tax from being collected from the claimant, and
therefore Maxxim is relieved from any obligation to collect the tax.
The language contained in R.C. 4121.44 upon which Maxxim relies
provided:
“The administrator of workers’ compensation shall adopt rules to ensure that
the following requirements are met with respect to any payments made to health
care providers for a claim pursuant to Chapter 4123. of the Revised Code:
“***
“(P) Provide that where a fee bill for services or supplies rendered or
provided has been submitted by a health care provider to the bureau for assignment
and the fee bill has been approved for payment by the bureau, the health care
provider may not assess the claimant or the employer for the difference between
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the amount allowed by the bureau and the health care provider’s charge[.]” (143
Ohio Laws, Part II, 3296.)
When the purchase of a TENS or NMES unit is approved by the BWC for a
claimant, the bill for the unit is paid by the BWC. However, the amount paid by
the BWC does not include any sales tax. Usually the amount paid to Maxxim by
the BWC is less than the amount billed by Maxxim, necessitating that Maxxim
write off the unpaid balance. The BTA determined that the tax base for calculating
Maxxim’s tax liability should reflect the actual amount collected from BWC, not
the billed amount. That portion of the BTA’s decision was not appealed.
The sale of the TENS or NMES unit is made to an individual. No sale is
made to BWC, although the BWC makes the payment for the sale. Maxxim
contends that the language of R.C. 4121.44(P) prevents it from collecting the sales
tax from the patient who receives the unit.
There is no dispute between the parties that the person who receives the
TENS or NMES unit is the consumer for tax purposes, not the BWC. R.C.
5739.01(D)(1) provides that the “consumer” is “the person * * * to whom the
transfer effected or license given by a sale is or is to be made or given.” R.C.
5739.03 provides that the tax “shall be paid by the consumer to the vendor, and
each vendor shall collect from the consumer, as trustee for the state of Ohio.” R.C.
5739.13(A), formerly R.C. 5739.13, provides that “if any vendor fails to collect the
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tax or any consumer fails to pay the tax,” the Tax Commissioner “may make an
assessment against either the vendor or consumer, as the facts may require.”
Maxxim did not charge or collect any sales tax on the sales in question.
The tax chargeable by Maxxim for the TENS and NMES units is not part of
the fee for supplies provided by Maxxim. Any tax charged and collected by
Maxxim as vendor from the consumer is “not part of the price, but is a tax
collection for the benefit of the state and of counties levying an additional tax.”
R.C. 5739.01(H)(1). R.C. 5739.03(B) also provides that at the time of delivery the
tax should be charged to the account of the consumer and “shall be collected by the
vendor from the consumer in addition to the price.” Finally, R.C. 5739.13(A)
provides that “[a]n assessment against a vendor when the tax * * * has not been
collected or paid, shall not discharge the purchaser’s or consumer’s liability to
reimburse the vendor for the tax applicable to such transaction.”
For all the foregoing reasons, the decision of the BTA is reasonable and
lawful and is therefore affirmed.
Decision affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
PFEIFER and LUNDBERG STRATTON, JJ., dissent.
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LUNDBERG STRATTON, J., dissenting. I respectfully dissent. I consider the
sales of the TENS and NMES units exempt from taxation because they are either
“devices to aid human perambulation” or “items of tangible personal property used
to supplement impaired functions of the human body.” R.C. 5739.02(B)(19).
I do not agree with the BTA’s conclusion in Kempf II (Kempf Surgical
Appliances, Inc. v. Tracy [July 18, 1997], BTA No. 93-D-486, unreported, at 6)
that these units “may be subject to a reasonable and primary use by the consumer
for a form of exercise of muscles and joints.” Nor do I agree with the BTA in
Maxxim that the devices are “akin to physical fitness equipment” used to
strengthen various parts of the human body, including “the strengthening of
dysfunctional parts.” Maxxim Med., Inc. v. Tracy (Sept. 25, 1998), BTA No. 94-
X-224, unreported, at 9. The evidence shows that a TENS unit is a device attached
to the skin. It emanates electrical impulses in an effort to reduce or control pain.
The NMES unit also attaches to the skin and sends electrical impulses to large
muscles to cause them to involuntarily contract or flex. There was testimony that
the NMES unit may be used to prevent atrophy in muscles. The BTA had no
evidence before it that either the TENS or NMES unit was intended for use in
developing muscles, physical training, or that their use required any physical
exertion. The fact that the muscle may involuntarily move when the unit is on
does not indicate that the user is exercising or strengthening a joint or muscle.
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Certainly the use of the equipment to prevent atrophy of muscles signifies that the
user is not strengthening a muscle but rather preventing further deterioration of the
muscle. The fact that the TENS and NMES units may be used in a stationary
position belies that conclusion that they are akin to physical fitness equipment.
It is apparent that the General Assembly intended to exclude from the
exemption equipment such as exercise bikes, weights, treadmills, and other
equipment used for strengthening, conditioning, and developing the human body.
A TENS or NMES unit does not convey an image of physical fitness or exercise. I
find it impossible to equate these units with physical fitness equipment that is not
subject to the exemption in R.C. 5739.02(B)(19).
In the BTA’s original decision in Maxxim, the BTA considered whether
these units should be exempt from taxation as a device similar to a brace that
supports nonfunctioning parts of the human body. The BTA distinguished the
TENS and NMES units from a brace or other device that physically supports a part
of the body. The BTA specifically stated that a TENS or NMES unit “acts on parts
of the body: it is not designed to strengthen and support it.” (Emphasis added in
part.) Maxxim Med., Inc. v. Tracy (Nov. 3, 1995), BTA No. 94-X-224, unreported,
at 7. Although the issue involved an actual physical support of the body, the BTA
clearly found that the TENS and NMES units were not intended to strengthen and
support the body. Yet the BTA reached the opposite conclusion upon remand and
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expressly found that the equipment was used to strengthen parts of the body. I
cannot affirm the BTA’s most recent position when it is contrary to an earlier
finding.
I would consider that, in addition to a device to aid human perambulation,
the TENS and NMES units may be “items of tangible personal property used to
supplement impaired functions of the human body.” R.C. 5739.02(B)(19).
Mobility is a function of the human body. When mobility is impaired, a physician
may prescribe a TENS or NMES unit in an effort to decrease pain and ultimately
improve the patient’s flexibility and mobility. Thus, the TENS or NMES unit may
be used to supplement the impaired function of mobility. I do not see the examples
of respiration, hearing, and elimination as being inclusive, but merely illustrative.
The statute does not confine the application of the exemption to those bodily
functions enumerated.
Because I do not agree that the TENS and NMES units are akin to physical
fitness equipment, it is my position that the decision of the BTA was unreasonable
and unlawful. The sales of the TENS and NMES units should be exempt from
taxation. I respectfully dissent.
PFEIFER, J., concurs in the foregoing dissenting opinion.
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