The statutes involved herein- La. R.S. 47:301(10)(u), La. R.S. 47:337.9(F), and La. R.S. 47:315.3 -provide for the exclusion, exemption, and refund of local sales taxes of personal, tangible property "made under the provisions of Medicare," provided the ultimate "end user" of the property-here, prescription drugs administered to patients receiving dialysis treatment-is a Medicare patient. I disagree with the plurality's opinion which holds the aforementioned statutes do not apply to bulk drug transactions between a pharmaceutical vendor and a dialysis clinic at issue in this case. Specifically, I disagree that the sales by AmerisourceBergen Drug Corporation ("ABC") of certain prescription drugs for administration to Medicare patients at Bio-Medical Applications of Louisiana, L.L.C.'s ("Bio-Medical") kidney dialysis facility did not involve sales of personal, tangible property "made under the provisions of Medicare," and would not be excluded from local sales under La. R.S. 47:301(10)(u). Additionally, I disagree with the plurality's opinion that ABC's sales of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare part B or D plan," and would not be exempted from local sales tax under La. R.S. 47:337.9(F)
Furthermore, I find there are genuine issues of material fact regarding: (i) the value of sales which could be excluded from local taxation under La. R.S. 47:301(10)(u) ; and (ii) the actual amount of prescription drugs sold by ABC and purchased by Bio-Medical "through or pursuant to a Medicare Part B or D plan" so as to permit an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). It is my opinion, therefore, that summary judgment should not have been granted in favor of the Sheriff.
I therefore disagree with the plurality's opinion, affirming the trial court's grant, in part, of the Washington Parish Sheriff's motion for summary judgment, declaring that ABC was not entitled to a sales tax exclusion, exemption, or refund under the aforementioned statutes for the drug purchases at issue herein, denying ABC's motion for partial summary judgment, and dismissing ABC's reconventional demand for declaratory judgment relief. I must respectfully dissent from the plurality's opinion.
Hon. Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.