IRS Releases Job Killing Medical Device Tax Guidance

The Office of the Federal Register has released the Internal Revenue Services (IRS) guidance document on the job killing Taxable Medical Devices, that I covered last year: Do you work in the Medical Device field? You won't after 2013 due to this new Tax. My four top picks:

One commenter suggested that the listing rule is overbroad because it includes virtually all types of medical devices in the tax base. The commenter requested that the final regulations narrow the definition of a taxable medical device so that the excise tax is imposed only on devices that Congress specifically intended to subject to the tax.

The final regulations do not adopt this suggestion.

[Doublespeak translation: It is a device if we say it is a device.]

---

Sale price:

Numerous commenters suggested that the IRS apply the constructive sale price rules with flexibility and sensitivity to data limitations that medical device companies face. The IRS and the Treasury Department recognize that the medical device industry will likely face some implementation issues when the medical device excise tax goes into effect on January 1, 2013, and the IRS intends to work with stakeholders on compliance-related issues, such as the determination of price.

[Doublespeak translation: You and I are going to pay through the nose for any medical device to just to handle all this new paperwork!]

---

Licensing of software:

One commenter requested clarification on whether the licensing of software that is a taxable medical device is a taxable event. Under existing chapter 32 rules, the manufacturers excise tax generally attaches upon the sale or use of a taxable article by the manufacturer. The lease of a taxable article by the manufacturer is considered a sale. Neither the existing chapter 32 rules nor the final regulations address the issue of whether the licensing of a taxable article is a taxable event. However, the IRS and the Treasury Department will issue separate interim guidance along with these regulations to address this issue.

[Doublespeak translation: Not even the FDA can figure out what the IRS wants, or is it the other way around?]

---

Semimonthly deposits:

Several commenters suggested that the semimonthly deposit requirements under section 6302 are burdensome to medical device manufacturers because device manufacturers have little or no experience with returning and paying federal excise taxes and because manufacturers need time to develop their systems to implement these final regulations...Given that the tax goes into effect on January 1, 2013, the IRS and the Treasury Department will issue separate interim guidance along with these regulations that addresses penalties under section 6656.

[Doublespeak translation: We don't care if you know how any of this stuff works, and we have not gotten around to writing the statute that would tell you yet, even tho we had a year to do it, but we do have the system of applying involuntary monetary fortuities {high fines that raise costs for you and I} in place now.]

The job killing tax, part of the Patient Protection and Affordable Care Act, has already been taking its toll this year. It may hit the Cleveland/Pittsburgh area hard. Resume anyone?