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Quick Tips - Aviation Tax Planning

by David Wyndham 31. August 2018 14:36
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In my previous blog post, the financial analysis identified the aircraft that does the best job for the money. This month, I'll touch on some of the US aviation tax basics to be considered.

Ben Franklin supposedly said that in life, there are only two certainties - death and taxes. The former I'll leave to others. Taxes can be significant, and if not properly planned for, can lead to spending more money than is necessary. 

My partner, [Nel Stubbs], is business aviation’s best resource on aviation taxes for the United States. If you are buying or selling an aircraft that will be based in the US, she’s your contact. However, here are some general tips.

You may be FAA Part 91 and still face “commercial” taxes! What?

At the Federal level, the tax laws are managed by the Internal Revenue Service. The IRS separates aviation into two groups - commercial and non commercial. Do not make the mistake that the IRS definition is in any way required to match that of the FAA Federal Aviation Regulations (FAR's) for commercial and non commercial operations. The IRS and FAA use different standards to define commercial operations and they have "agreed to disagree."

The FAA uses regulatory definitions for a commercial operator. It involves the "intent" to hold one's aircraft out for hire. The IRS looks primarily at whether there is "transportation of persons or property for compensation or hire by air." Whether a profit is intended is not the IRS' concern. There may be times when an operator is FAA Part 91 private but can be subject to IRS "commercial" taxes. Many operators run afoul of the IRS in incorrectly figuring out how or whether to apply the Federal Excise Taxes. Add in an election year with carriage of elected officials, transporting guests on corporate aircraft and international operations, and it can get confusing fast. Business and Personal use is a complicated subject on its own.

Aircraft Are Not Real Estate. But, its still Location, Location, Loacation

Add to that the 50 US States Departments of Revenue and local county/city tax authorities. They are all slightly different. Some apply sales taxes. The seller of an aircraft may be required to collect and remit sales taxes on the sale of an aircraft. Many states offer some exemptions or exceptions. Property taxes can be applied to aircraft - some being based on the percentage of time the aircraft spends in the state and others flat rated for aircraft based in their state.

Where the aircraft is based matters. It can be in a Delaware LLC or in a Trust, but if the aircraft spends any significant amount of time in (Name a US state), then your aircraft may be subject to taxes. There may be sales taxes, use taxes, and property taxes. You may even face taxes from two different states if the aircraft spends a lot of time in a second location over than its home base. 

There are use taxes and fuel taxes applied at the state and county level. Some of those taxes get applied to the state's aviation fund and other just go into the general fund. Again, there may be exemptions for commercial operators.

The biggest thing to remember is to Plan Ahead. Before taking action, find out what the options are and their costs. Trying to do this after the fact often proves costly. Secondly, document, document, document. Paperwork can be your friend as a "paper trail" can provide proof of the taxable/non-taxable activity and or its intent.

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October 16-18, I'll be at the 2018 NBAA BACE. Stop by Booth 1134 to say hi. 

 

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David Wyndham



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