Request By:
Hon. Joseph L. Fink, III
Attorney at Law
2009 Ermine Court
Lexington, Kentucky 40513
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Alex W. Rose, Assistant Attorney General
You have asked whether drugs and health devices such as hypodermic needles and diabetic monitoring devices such as Testape and Clinitest, which may lawfully be sold without prescription, are exempt from sales and use taxes when purchased pursuant to a prescription issued by a physician.
KRS 139.472(1) defines "prescription medicine" eligible for exemption from sales and use tax as follows:
"(1) 'Prescription medicine' shall mean and include any substance or preparation intended for use by external or internal application to the human body in the diagnosis, cure, mitigation, treatment or prevention of disease and which is commonly recognized as a substance or preparation intended for such use which is prescribed for the treatment of a human being by a person authorized to prescribe the medicines and dispensed on prescription by a registered pharmacist in accordance with law."
Based on this definition, to qualify for the exemption three (3) criteria must be met: (1) the drug or medicine must be a substance or preparation used to diagnose, cure, mitigate, treat or prevent disease; (2) the drug or medicine must be prescribed for treatment of a human being by a person authorized to prescribe these medicines; and (3) the drug or medicine must be dispensed by a registered pharmacist.
The language of KRS 139.472(1) does not require that a drug or medicine must be one which can only be lawfully purchased by prescription in order to be exempt. The liberal language of the statute makes it clear that as long as a prescription has been issued, the drug or medicine may be purchased tax free, even if the drug or medicine could be purchased lawfully without a prescription.
Kentucky courts have emphasized that, where there is no ambiguity in a law, there is no occasion for the court to look beyond the words of the statute to attempt to ascertain legislative intent. See
Thomas v. Commonwealth, Ky.App., 563 S.W.2d 493 (1978) and
Kentucky Association of Chiropractors, Inc., v. Jefferson County Medical Society, Ky., 549 S.W.2d 817 (1977).
Since KRS 139.472(1) clearly does not require drugs or medicines eligible for exemption to be those which may only lawfully be purchased by prescription, it is unnecessary to go beyond the words of the act in determining the intent of the statute in this regard.
With regard to your question concerning the applicability of the exemption to non-medicines and non-drug items such as Testape and Clinitest, it is equally clear from the language of KRS 139.472(1) that only drugs or medicines applied to the body externally or internally are eligible for exemption.
KRS 139.472(1) limits the exemption to medicinal substances or preparations that are used to treat, diagnose, mitigate or cure disease. Items such as hypodermic syringes, Testape and Clinitest are not medicinal substances or preparations within the statutory definition of "prescription medicine, " and are therefore not eligible for exemption from sales and use tax pursuant to KRS 139.472(1).