3 February 2003 GST/HST Ruling 37600 - The Supply of Spacing Devices

Dear XXXXX:

We are writing to revoke the Application Ruling sent to your client XXXXX concerning the application of the Goods and Services Tax (GST)/Harmonized Sales Tax (HST) to the supply of XXXXX spacing devices.

Your letter XXXXX asked for a review of the XXXXX ruling XXXXX concerning the status of the XXXXX product under the Excise Tax Act (ETA). This letter amends and replaces our earlier ruling. We regret the delay in this response.

Statement of Facts

Our understanding of the facts from your letter and the product literature provided is as follows:

1. XXXXX.

2. The XXXXX product line is used in the treatment of asthma.

3. The XXXXX products are spacing devices, also known as aerosol chambers, that attach to inhalers and deliver metered dose inhaler medication.

Ruling Requested

You have requested a ruling on the GST/HST status of the XXXXX products.

Ruling Given

Based on the information provided, we rule that the XXXXX products are conditionally zero-rated medical devices under section 5.1 of Part II of Schedule VI to the ETA. That is, where the supply of XXXXX product is made on the written order of a medical practitioner for use by a consumer named in the order, it will be zero-rated, meaning it will be taxable at 0%. However, throughout the distribution chain where the two conditions have not been met, the supply of the XXXXX product will be taxable at 7% or 15% depending on where it is supplied, pursuant to section 165 of the ETA.

This ruling is XXXXX subject to the general limitations and qualifications outlined in section 1.4 of Chapter 1 of the GST/HST Memoranda Series. We are bound by this ruling provided that none of the above issues is currently under audit, objection, or appeal; that there are no relevant changes in the future to the Excise Tax Act, or to our interpretative policy; and that you have fully described all necessary facts and transaction(s) for which you requested a ruling.

Explanation

Part II of Schedule VI to the ETA provides a listing of supplies of medical and assistive devices that are unconditionally or conditionally zero-rated.

Medical devices that are unconditionally zero-rated are zero-rated in their own right or because they have certain design features. An unconditional zero-rating provision attaches no restrictive conditions upon the supply of that product; therefore, the supply stated in the particular provision will be taxed at a rate of 0% throughout the distribution chain. The manufacturer may sell the device to a distributor, the distributor to the retailer and the retailer to the final consumer - all on a zero-rated basis.

Conditionally zero-rated provisions are more restrictive in that the medical device will only be zero-rated when supplied under the specific terms described in the provision. Where the requirements of a conditional provision are met, the supply stated in the particular provision will be zero-rated to the extent allowed in the provision. In circumstances where the terms of a conditional zero-rating provision are not met, the medical device will be taxable at 7% GST or 15% HST depending on where it is supplied, pursuant to section 165 of the ETA.

After reviewing the product literature relating to the XXXXX products, it is our conclusion that the products are aerosol chambers used in the treatment of asthma and therefore conditionally zero-rated under section 5.1 of Part II of Schedule VI to the ETA.

Section 5.1 of Part II of Schedule VI to the ETA reads:

A supply of an aerosol chamber or a metered dose inhaler for use in the treatment of asthma when the chamber or inhaler is supplied on the written order of a medical practitioner for use by a consumer named in the order.

Where a provision zero-rates a supply with a condition that it is "... supplied on the written order of a medical practitioner for use by a consumer named in the order", both requirements must be met in order for the supply to be zero-rated.

Relating the foregoing to the supply of the XXXXX product line, XXXXX product will be zero-rated only in circumstances where it is supplied on the written order of a medical practitioner for use by a consumer named in the order (which generally occurs at the retail level). Conversely, where XXXXX product is not supplied on the written order of a medical practitioner for use by a consumer named in the order, for example where XXXXX product is supplied to a distributor, retailer, hospital or other health care organization, it will be subject to the GST at 7% or HST at 15%, pursuant to section 165 of the ETA.

Should you have any further questions or require clarification on the above matter, please do not hesitate to contact me at (613) 954-4395.

Yours truly,

Angela K. Lovric
Municipalities and Healthcare Services Unit
Public Service Bodies and Governments Division
Excise and GST/HST Rulings Directorate