Wis. Admin. Code Department of Revenue Tax 11.45

Current through October 28, 2024

Section Tax 11.45 - Sales by pharmacies and drug stores

(1) TAXABLE SALES. All sales of tangible personal property and items, property and goods under s. 77.52(1) (b), (c) and (d), Stats., by a pharmacy or drug store are taxable under the general sales tax law unless exempted by a specific statute. The most common exemptions are described and enumerated in this section.

(2) DRUGS AND PRESCRIPTION DRUGS.

(a) "Drug" is defined in s. 77.51(3pj), Stats., to mean a compound, substance, or preparation, or any component of them, other than food and food ingredients, dietary supplements, or alcoholic beverages, to which any of the following applies:

1. It is listed in the United States Pharmacopoeia, Homeopathic Pharmacopoeia of the United States, or National Formulary, or any supplement to any of them.

2. It is intended for use in diagnosing, curing, mitigating, treating, or preventing a disease.

3. It is intended to affect a function or structure of the body.

(b) Drugs are exempt from the tax if prescribed by a licensed physician, surgeon, podiatrist or dentist to a patient, who is a human being, for treatment and dispensed on prescription filled by a registered pharmacist in accordance with law.

(c) Drugs described in par. (b) which are exempt from the tax include:

1. Pills and capsules.

2. Powders.

3. Liquids, including sterile water and irrigation solutions.

4. Salves and ointments.

5. Insulin.

6. Other preparations consumed orally, injected or applied, including dermal fillers.

7. Parenteral nutrition formulas.

8. Enteral nutrition formulas that contain a drug facts box.

9. Suppositories.

10. Radioactive isotopes such as implanted seeds.

11. Dyes and other contrast media.

12. Other items which remain or dissolve in the body, such as birth control implants including intra-uterine devices (IUD).

13. Gases - medical grade, such as oxygen and nitrous oxide.

14. Vitamins.

15. Vaccines.

16. Oral contraceptives.

17. Medicated dressings.

(d) This exemption does not include:

1. Prosthetic devices, mobility-enhancing equipment, or durable medical equipment.

2. Non-medicated bandages, pads, compresses, supports, or dressings.

3. Alcoholic beverages.

4. Casts and casting materials.

5. Food and food ingredients, including dietary supplements and soft drinks.

(3) PROSTHETIC DEVICES. The exemption for prosthetic devices under s. 77.54(22b), Stats., applies to sales of all prosthetic devices, including repair and replacement parts, that are used for a human being. The exemption also includes accessories for exempt prosthetic devices.

(a) "Prosthetic device" is defined in s. 77.51(11m), Stats., to mean a replacement, corrective, or supportive device, including the repair parts and replacement parts for the device, that is placed in or worn on the body to artificially replace a missing portion of the body; to prevent or correct a physical deformity or malfunction; or to support a weak or deformed portion of the body.

Note: A listing that contains numerous items and descriptions of items that have been categorized as drugs, durable medical equipment, mobility-enhancing equipment and prosthetic devices can be found in the Streamlined Sales Tax Governing Board, Inc.'s Rules and Procedures, available at www.streamlinedsalestax.org.

(b) "Prosthetic devices" include the following items, as well as repair and replacement parts and accessories for those items, if they are implanted or worn on the body:

1. Trusses; post-operative shoes; orthopedic shoes, shoe lifts, inserts, arch supports, and heel protectors; braces including ankle, knee, neck, and back braces; knee immobilizers; traction devices; cervical collars; head halters; abdominal belts, binders, and supports; slings; suspensories; and bone pins, plates, nails, screws, wax, and cement.

2. Antiembolism elastic hose and stockings, and compression stockings and sleeves.

3. Pressure garments, including edema gloves, mast pants, and burn garments.

4. Artificial limbs; skin, shoulder, elbow, tendon, testicular, penile, hip, and knee implants and acetabular cups for hip implants; neuro, spinal, and joint membranes implants; adhesion barriers; artificial eyes; ocular, orbital, ear, nose, and throat implants; cochlear implants; maxillofacial devices; hands and feet implants; orthobiologics implants; surgical mesh implants; vena cava filters; artificial heart valves; artificial larynx; trachea tubes; grafts; sphincters; stump shrinkers; gastric bands and intragastric balloons; nasogastric tubes; stents; pacemakers and leads that are implanted or worn; defibrillator and leads that are implanted; and hearing aids and batteries.

5. Contact lenses and corrective eyeglasses (prescription and non-prescription).

6. Ostomy adhesives, barriers, catheters, collection bags and pouches, drain tubes, stoma caps, tubing, belts, hernia belts, and valves, but not barrier prep wipes, barrier powder, or lubricants.

7. Feeding, drainage, urinary and dialysis catheters, access ports, drains, and shunts.

8. Collagen implants, implanted tissue expanders, breast implants and prosthesis, and mastectomy surgical bras.

9. Casts and casting materials, splint and splint materials, staples, sutures, and suture alternatives.

10. Bone growth stimulators, CPAP machines, infuser pumps, programmable drug infusion devices, insulin pumps, penile pumps, electronic speech aids and tracheostomy speaking valves, tens units, and nerve stimulators implanted with leads.

(4) MOBILITY-ENHANCING EQUIPMENT. The exemption for mobility-enhancing equipment under s. 77.54(22b), Stats., applies to all mobility-enhancing equipment, including repair and replacement parts, that is for human use. The exemption also includes accessories for exempt mobility-enhancing equipment.

(a) "Mobility-enhancing equipment" is defined in s. 77.51(7m), Stats., to mean equipment, including the repair parts and replacement parts for the equipment, that is primarily and customarily used to provide or increase the ability of a person to move from one place to another; that may be used in a home or motor vehicle; and that is generally not used by a person who has normal mobility. "Mobility-enhancing equipment" does not include a motor vehicle or any equipment on a motor vehicle that is generally provided by a motor vehicle manufacturer. "Mobility-enhancing equipment" does not include durable medical equipment.

(b) "Mobility-enhancing equipment" includes the following items, as well as repair and replacement parts and accessories for those items:

1. Raised toilet seats and tub and shower stools.

2. Canes, crutches, walkers, wheelchairs including motorized wheelchairs and scooters, specialty chairs such as all terrain wheelchairs and pool wheelchairs, and wheelchair ramps.

3. Swivel seats which enable a disabled person to rotate his or her body, while seated, in order to get into position to rise from a chair.

4. Handrails and grab bars to assist in rising from the commode, tub, or shower.

5. Lift chairs, patient lifts, bed pull-ups including trapeze bars, and transfer belts and benches.

6. Mobility enhancing car seats which are car seats that provide restraint and support (five point harness) for disabled children who have outgrown standard size child car seats but still need the restraint and support provided by car seats.

(5) DURABLE MEDICAL EQUIPMENT. The exemption for durable medical equipment under s. 77.54(22b), Stats., applies to all durable medical equipment, including repair and replacement parts, that is for use in a person's home, if the equipment is used for a human being. The exemption also includes accessories for exempt durable medical equipment.

(a) "Durable medical equipment" is defined in s. 77.51(3pm), Stats., to mean equipment, including the repair parts and replacement parts for the equipment that is primarily and customarily used for a medical purpose related to a person; that can withstand repeated use; that is not generally useful to a person who is not ill or injured; and that is not placed in or worn on the body. "Durable medical equipment" does not include mobility-enhancing equipment.

(b)

1. "Use in a person's home" means that the equipment is sold to an individual for use where they are living, regardless of whether the individual resides in a single family home, apartment building, nursing home, assisted living center, convalescent home or school dormitory.

2. Durable medical equipment is not for use in a person's home if it is purchased by a hospital, clinic, nursing home, assisted living center, convalescent home, dental office, chiropractor or optician's office. In addition, purchases of durable medical equipment by a nursing home, assisted living center and convalescent home are not for use in a person's home even if the equipment is purchased for use by the residents of the nursing home, assisted living center or convalescent home.

(c) "Durable medical equipment" includes the following equipment, as well as repair and replacement parts for the equipment if it is primarily and customarily used for a medical purpose related to a person, can withstand repeated use, is not generally useful to a person who is not ill or injured, and that is not placed in or worn on the body:

1. Anesthesia machines and ventilators; anti-thrombolytic pumps; artificial inhalation equipment; audiology equipment including audiometers and acoustic impedance meters or bridges; automatic external defibrillators; autotransfusion equipment; billie lights; bone growth stimulators that are not worn; cardiology machines; cauterization equipment; chair and sling scales; continuous passive motion devices; crash carts; exam and surgical tables and stirrups; electroencephalogram equipment; heat lamps and bulbs; intraaortic balloon pump; kidney dialysis machines and dialyzers; lithotripters; mammography equipment; monitors; MRI/CT machines; needleless drug delivery system injection guns; nerve stimulator programmer; external pacemakers; pacemaker programmers and transmitters; percussors; platelet separators; drug infusion pumps; radiology and ultrasound equipment; pulse oximetery equipment and blood parameter monitors; respiratory equipment; resuscitators; staplers; stretchers; suction regulators; tens units; tourniquets; traction equipment; vaporizers; and medical atomizers and instruments.

2. Apnea monitors and CPAP machines that are not worn.

3. Alternating pressure beds, incubators, hospital beds, kinetic therapy beds, kodel bed pads, pressure reduction therapy beds; blanket cradles, patient positioners, and overbed tables and trays.

4. Abduction, cervical, and orthotic pillows.

5. Enteral and parenteral feeding bags that are generally used for up to 24 hours which will encompass numerous feedings and are then disposed, and enteral and parenteral connectors, pumps, stands, and tubing and feeding plugs.

6. IV poles, stands and reusable therapy arm boards, but not disposable arm boards.

7. Oxygen delivery equipment, oxygen tents or beds, nebulizers, and respiratory bags.

8. Electronic speech aids.

9. Therapeutic heating or cooling pads or compresses or packs.

10. Thermometers; glucose meters; scopes and lasers including stethoscopes, ophthalmoscopes, otoscopes, and endoscopes; and blood pressure equipment.

11. Commodes and collection basins including bed pans, urine containers, and emesis basins.

12. Wheelchair cushions that are braces or supports that are not attached and do not become a component part of the wheelchair itself.

13. Portable over-the-tub whirlpool devices that are not available for sale to the general public and are specifically manufactured for a medical purpose.

(6) MEDICARE CLAIMS. The administrator of Medicare claims, such as surgical care-blue shield, is under contract to withdraw funds from the United States treasury to pay the providers of medical services or for medical supplies and equipment. If the provider of a taxable item bills the administrator directly in full or in part, the portion paid by the administrator is a tax exempt sale to the United States. If the provider of a taxable item bills an individual in full or in part who then seeks reimbursement from Medicare, the portion paid by the administrator to the individual is not an exempt sale to the United States.

Wis. Admin. Code Department of Revenue Tax 11.45

Cr. Register, October, 1976, No. 250, eff. 11-1-76; r. (2) (c) 5., am. (3) (intro.) and (e), Register, September, 1984, No. 345, eff. 10-1-84; am. (3) (d), Register, July, 1987, No. 379, eff. 8-1-87; am. (3) (a) and (b) and (4), cr. (3) (c), renum. (3) (c) to (3) (d), renum. (3) (d) to (3) (e), renum. (3) (e) to (3) (f) and (g) and am., renum. (3) (f) to (3) (h), Register, March, 1991, No. 423, eff. 4-1-91; am. (1), (2) (a), (b) (intro.), (c) (intro.), (3) (intro.) to (e) and (4), r. and recr. (3) (h), Register, May, 1993, No. 449, eff. 6-1-93; EmR0924: emerg. r. and recr. eff. 10-1-09; CR 09-090: r. and recr. Register May 2010 No. 653, eff. 6-1-10; CR 14-006: am. (3) (a) Register August 2014 No. 704, eff. 9-1-14.

Amended by, CR 19-122: am. (4) (b) 3. Register July 2020 No. 775, eff. 8/1/2020

Section Tax 11.45 interprets ss. 77.51(3pj), (3pm), (7m), and (11m) and 77.54(14), (14m), (22b), and (28), Stats.

The interpretations in s. Tax 11.45 are effective under the general sales and use tax law, on and after September 1, 1969, except: (a) Charges for oxygen equipment became exempt September 1, 1983, pursuant to 1983 Wis. Act 27; (b) Charges for motorized wheelchairs and scooters became exempt September 1, 1985, pursuant to 1985 Wis. Act 29; (c) Charges for apparatus or equipment for the injection of insulin or the treatment of diabetes and supplies used to determine blood sugar level became exempt March 1, 1989, pursuant to 1987 Wis. Act 399; (d) Charges for antiembolism elastic hose and stockings prescribed by a physician became exempt October 1, 1989, pursuant to 1989 Wis. Act 31; (e) Sales of parts and accessories for certain medical items became exempt effective August 15, 1991, pursuant to 1991 Wis. Act 39; (f) The definitions of "drug," "durable medical equipment," " mobility-enhancing equipment," and "prosthetic devices" and the exemptions for these items became effective October 1, 2009, pursuant to 2009 Wis. Act 2; (g) The change of the term "gross receipts" to "sales price" and the separate impositions of tax on coins and stamps sold above face value under s. 77.52(1) (b), Stats., certain leased property affixed to real property under s. 77.52(1) (c), Stats., and digital goods under s. 77.52(1) (d), Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2; and (h) The clarification that a "prosthetic device" must be a replacement, corrective, or supportive device became effective July 2, 2013, pursuant to 2013 Wis. Act 20.