ATO ID 2001/281: GST and Non-invasive acupuncture point electric stimulators
Date of decision: 26 July 2001
Business line: Indirect Tax

Issue
Is the entity, a supplier of medical appliances, making a GST-free supply under subsection 38-45(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it supplies a non-invasive acupuncture point electric stimulator developed primarily for the relief of pain?

Decision
Yes, the entity is making a GST-free supply under subsection 38-45(1) of the GST Act when it supplies a non-invasive acupuncture point electric stimulator developed primarily for the relief of pain.

Facts
The entity is a supplier of medical appliances. In this case, the entity supplies a non-invasive acupuncture point stimulator device. The non-invasive acupuncture point stimulator device is a small, battery-operated unit with leads connected to electrodes that are then attached to the skin. The device has been developed primarily for the relief of pain associated with various illnesses. The non-invasive acupuncture point stimulator device is specifically designed for people with an illness or disability and is not widely used by people without an illness or disability. There is no agreement between the entity and the recipient that the supply will not be treated as a GST-free supply. The entity is registered for goods and services tax (GST).

Reasons for decision
Summary: Under subsection 38-45(1) of the GST Act, the supply of certain medical aids and appliances is GST-free where the medical aid or appliance: The only item of relevance to this case is item 141 in the table in Schedule 3 to the GST Act (Item 141). Item 141 lists 'transcutaneous nerve stimulator machines' (TENS machines). Non-invasive acupuncture point electric stimulators are not specified in the Regulations. The phrase 'transcutaneous nerve stimulator machines' is not defined in the GST Act. Generally, where a phrase is not defined in the relevant Act, it is usually interpreted in accordance with its ordinary meaning, unless it has a special or technical meaning. Where a phrase has a special or technical meaning, it is necessary to determine its meaning by reference to the industry to which that phrase relates ( Herbert Adams Pty Ltd v FCT (1932) 47 CLR 222). In this case, given the context in which the phrase appears (ie in a list of medical aids and appliances), the phrase is considered to have a special or technical meaning. The Concise Medical Dictionary (1998) defines 'transcutaneous electric nerve stimulation' as: 'the introduction of pulses of low-voltage electricity into tissue for the relief of pain. It is effected by means of a small portable battery-operated unit with leads connected to electrodes attached to the skin; the strength and frequency of the pulses, which prevent the passage of pain impulses to the brain, can be adjusted by the patient. TENS is used mainly for the relief of rheumatic pain; as a method of producing pain relief in labour, it is less frequently used than epidural anaesthesia (see spinal anaesthesia), which has a much wider application for pain relief in obstetrics.' Black's Medical Dictionary (1995) defines 'transcutaneous nerve stimulation' as: 'a method of electrical stimulation that is being used for the relief of pain, including that of migraine, neuralgia and phantom limbs. Known as TENS, its mode of action appears to have some resemblance to that of acupuncture. Several controlled trials suggest that it provides at least a modicum of relief of pain after operations, thereby reducing the amount of analgesics that may be called for.' Based on the above definitions, it is considered that a TENS machine is a small portable battery-operated unit with leads connected to electrodes that are then attached to the skin. The purpose of the machine is to aid pain relief by preventing the passage of pain impulses to the brain. As such, a TENS machine only includes those devices which are developed primarily for the purpose of pain relief. In this case, the non-invasive acupuncture point stimulator device is a small portable battery-operated unit with leads connected to electrodes that are then attached to the skin. The device has been developed primarily for the relief of pain. As such, the device is a TENS machine for the purposes of Item 141. Additionally, the non-invasive acupuncture point stimulator device is specifically designed for people with an illness or disability and is not widely used by people without an illness or disability. As such, the requirements of subsection 38-45(1) of the GST Act are satisfied. Therefore, the supply of the non-invasive acupuncture point stimulator device that is developed primarily for pain relief is a GST-free supply under subsection 38-45(1) of the GST Act.

Legislative references: A New Tax System (Goods and Services Tax) Act 1999 section 9-5 Division 38 subsection 38-45(1) Schedule 3 table item 141
Case references: Herbert Adams Pty Ltd v FCT (1932) 47 CLR 222
Related ATO interpretative decisions: ATO ID 2001/282
Other references: Concise Medical Dictionary, 1998, Oxford University Press, Market House Books Ltd Black's Medical Dictionary, 1995, 38th Edition, A & C Black, London
Subject references: Goods & services tax GST free GST health Medical aids & appliances