Kamp v. Johnson

GIBSON, J.

This action was instituted by the plaintiff pursuant to section 31 of the Retail Sales Tax Act of 1933 to recover tax paid under protest. Plaintiff appeals herein from the judgment entered for defendants by the trial court.

The plaintiff is engaged in the practice of optometry under the authority conferred by a registration certificate or license issued to him by the state board of optometry under the State Optometry Act. He does not carry a stock of frames, lenses or other tangible personal property for sale at his office, but keeps there only an assortment of samples of frames from which his patient makes a selection: When his examination of the. patient discloses the necessity of glasses, he prepares a prescription for the lenses to be fitted into the type of frame selected, and the prescription is then sent to the supply house to be filled. After the glasses are completed they are re

[189]

turned to plaintiff who fits and adjusts them to his patient’s eyes.

Plaintiff makes a lump sum charge to his patients, the form of his statement reading “For Professional Services Rendered”. There is no itemization in the statement of separate charges for services, lenses, frames or fitting, although the cost of the lenses and frames is taken into consideration in arriving at the amount of the lump sum charge. The only question presented for our consideration is whether the retail sales tax applies to the portion of the charge which may be said to represent the fair retail value of the glasses furnished by the plaintiff to his patient.

The State Board of Equalization, the tax administering agency, regards an optometrist as a retailer of glasses furnished to his patients, its sales tax ruling number 37 reading as follows:

“Oculists, opticians and optometrists must pay the tax on the receipts from the sales of glasses, frames, lenses and other items of tangible personal property sold by them. However, the tax does not apply to charges for eye examination and fitting glasses to a patient. If the charges made cover both glasses, frames, lenses and other items of tangible personal property and also charges for professional service, a segregation must be made and the tax paid on the fair retail value of the items of tangible personal property furnished.”