Gregory J. Reigel
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October 01, 2018

Using A "Fly-Away" Exemption To Avoid Paying Sales Tax On An Aircraft Purchase

When buying an aircraft, one of the issues a buyer must determine is whether the buyer will have to pay any sales tax on the transaction. As you may know, most states charge sales tax on the purchase of tangible property, including aircraft. In some cases, a buyer may be able to take advantage of an exemption such as a "fly-away exemption" to avoid having to pay sales tax to the state where the buyer takes delivery of the aircraft.

As an example, Texas provides a fly-away exemption when an aircraft is sold/delivered in Texas state for use and registration in another state before any use of the aircraft is made in Texas. Texas Tax Code ("TTC") Section 151.328(a)(4) exempts from sales tax aircraft "sold to a person for use and registration in another state or nation before any use in this state other than flight training in the aircraft and the transportation of the aircraft out of the state."

Use

In order to take advantage of this exemption, an aircraft sold in Texas may not be "used" in Texas after the buyer takes delivery of the aircraft. Unfortunately, the Texas Tax Code applicable to sales tax does not define what it means to "use" an aircraft in the state. However, TTC Section 151.011(a), which relates to the "use tax" in Texas, defines "use" as “the exercise of a right or power incidental to the ownership of tangible personal property over tangible personal property… ."

Additionally, TTC Section 151.011(f)(1) provides that "[n]either 'use' nor 'storage' includes the exercise of a right or power over or the keeping or retaining of tangible personal property for the purpose of: (1) transporting the property outside the state for use solely outside the state." So, at least in Texas, a buyer may be permitted limited post-closing use of the aircraft in Texas for the purposes of (i) training, (ii) maintenance, repairs, completion etc., or (iii) to fly the aircraft out of Texas.

Registration

The Texas fly-away exemption also requires that the aircraft be registered in another state or nation, but not Texas. So, while the transfer of ownership will be filed with the FAA, in order to satisfy the statute the aircraft also needs to registered in another state or country after it is removed from Texas.

To claim the fly-away exemption, the buyer must give the seller a Form 01-907, Texas Aircraft Exemption Certificate Out-of-State Registration and Use (“Exemption Certificate”). Both the buyer and the seller must sign the Exemption Certificate and the seller must send a copy to the Texas Comptroller’s office within 30 days of the sale’s occurrence in Texas. And in the event of a dispute with the Comptroller, the buyer has the burden of proving by clear and convincing evidence that the aircraft was not subject to Texas sales tax per TTC Section 151.328(a)(4).

It is important to know that, at least in Texas, each case is unique and even though it may appear that the buyer has satisfied all requirements of the fly-away exemption, the Comptroller could take a different view of the case. Although this may not be the case in all states, it is prudent for aircraft buyers in all states to work with their aviation and tax counsel to properly structure their transactions in a way that complies with/satisfies any requirements for taking advantage of a fly-away or any other type of exemption.

Posted by Greg

September 21, 2018

Operation Safe Pilot All Over Again, But This Time FAA Cross-Checks Pilots With The VA Disability Database

As some of you may know, the Department of Justice recently issued a Press Release announcing that it had indicted four pilots for lying on their medical applications. In each case, the airman failed to disclose that he was receiving Veterans Administration ("VA") benefits for a medical condition that would likely have either disqualified the airman from receiving a medical certificate, or would have certainly subjected the airman to additional scrutiny and/or testing requirements by the FAA's Office of Aerospace Medicine.

The airmen were "caught" when the FAA cross-checked its database of airmen holding medical certificates with the VA's disability benefits database. This is reminiscent of the FAA's 2002 Operation Safe Pilot in which it performed a similar cross-check, but with the Social Security Administration's ("SSA") disability database. Operation Safe Pilot resulted in prosecution of forty pilots who were receiving SSA disability benefits for conditions that would have either disqualified the airmen from receiving a medical or would have triggered further inquiry by the FAA.

After Operation Safe Pilot, the FAA revised the application for medical certificate to include language that specifically authorizes it to conduct this type of cross-check with SSA and VA. When an airman signs the medical application, he or she is agreeing that the FAA can perform this type of search.

Since the DOJ Press Release was issued, I have received multiple calls from airmen who believe they may be in a similar situation, but have not yet been "discovered" or received any notice from the FAA. In each call the airman is, perhaps justifiably, concerned regarding his or her liability exposure for criminal prosecution. Fortunately, options, albeit not great options, are available provided the airman is not yet in the FAA's cross-hairs.

Depending upon the circumstances, airmen have at least two options for dealing with the situation:
  1. An airman can contact the FAA via letter and disclose the previously omitted information regarding both the medical condition and the receipt of disability benefits. It is also helpful to provide an explanation for the non-disclosure, to the extent that the airman has a reasonable explanation for failing to disclose the information. This may persuade the FAA that the failure to disclose was not intentional, but merely a misunderstanding etc.; or

  2. The airman can apply for a new medical certificate and disclose the medical condition and receipt of benefits on the application. Then when the airman goes to his or her aviation medical examiner ("AME") for the medical examination the airman can explain the situation to the AME.

In either instance, the airman will want to have all of his or her VA medical/disability records available to provide to the FAA. However, an airman should keep in mind that any information he or she provides to the FAA could be used against the airman in a criminal prosecution. So it is important for the airman to be very careful about what he or she says to the FAA or AME.

Although pursuing one of these two options does not guarantee that the FAA will not prosecute the airman, coming clean and correcting the record before the airman is "caught" may convince the FAA that prosecution is unnecessary. However, even if an airman is not prosecuted, it is quite likely that the FAA will follow its standard playbook and revoke all of the airman's certificates as a sanction for falsifying the airman's medical application(s).

If you find yourself in this situation, please call and I will be happy to help you through the process.

Posted by Greg

September 14, 2018

If You Want To Be A Part 135 Check Airman Or Instructor In A Simulator, You Have To Fly The Plane

In a recent Legal Interpretation, the FAA reaffirmed its position that an individual acting as a check airman or flight instructor in a simulator must fly at least two flight segments for the type aircraft involved within the 12-month period preceding the performance to comply with 14 C.F.R. § 135.337(f). The Interpretation responded to an inquiry from a Part 142 Training Center asking whether a Part 135 check airman/instructor conducting turbine aircraft flight checks/flight instruction in a simulator could use a multi-engine piston aircraft to satisfy the requirements of §§ 14 C.F.R. § 135.337(f) or 14 C.F.R. § 135.338(f). Both sections require that the check airman/instructor
  1. Fly at least two flight segments as a required crewmember for the type, class, or category aircraft involved within the 12-month preceding the performance of any check airman or flight instructor duty in a flight simulator; or

  2. Satisfactorily complete an approved line observation program.

In its request the training center explained that it was either cost prohibitive or simply not feasible for a training center or contract check airman/flight instructor to be able to satisfy these requirements in an actual turbine aircraft. On the other hand, accomplishing the flight segments or line observation in a multi-engine piston aircraft was not only more economical, but was actually feasible given the availability of multi-engine piston aircraft for rent.

In response, the Interpretation states that
recency of experience in a light piston engine would not satisfy the recency requirements for serving as a check airman or instructor in an aircraft of a different type, class, or category aircraft. Because the purpose of the requirements is for experience in a similar aircraft, the aircraft type must be the same. If the aircraft does not have a type rating, then the class and category, in that order, must be the same.
So, if you are a conducting Part 135 flight checks or instruction in a simulator, you will need to make arrangements to obtain the required currency experience in a similar aircraft. Unfortunately, this will make it more difficult, and more expensive, for training centers to either obtain or maintain qualified check airmen/instructors.

Posted by Greg

September 07, 2018

If You Are Unhappy With Your ASAP Program, Suing DOT Won't Help.

An airman found this out the hard way in a recent case in Michigan. In Mark v. U.S. Dep't of Transportation the plaintiff was a flight engineer working for Kalitta Chartes II, LLC, an air carrier. During one particular flight, the captain nearly crashed the aircraft in what the Court characterized was a "nearly-disastrous unstable landing approach" which left the plaintiff "understandably shaken."

Shortly after the flight, the plaintiff failed a simulator proficiency exam and claimed his failure was the result of the post-traumatic stress disorder ("PTSD") he was suffering from the previous flight. The Plaintiff then filed a report under Kalitta's Aviation Safety Action Program ("ASAP") detailing his physical and mental condition which was then provided to the Event Review Committee ("ERC"). As you may know, ASAP programs are established via a memorandum of understanding ("MOU") between an air carrier and the FAA which detail procedures for participating in the program. The MOU establishes the ERC which includes a representative from each of the air carrier and pilot's union, as well as an FAA inspector.

In this case, the plaintiff alleged that the MOU required the ERC to report his medical issue to the FAA Regional Flight Surgeon and then comply with any instructions received in response to the report. However, the ERC did not follow this procedure, but simply determined that the plaintiff was fit to fly. Based upon this determination, the plaintiff submitted to another simulator proficiency check which he also failed, and he again claimed the failure was caused by his PTSD. After the second failure, the plaintiff's employment was terminated.

The plaintiff sued the Department of Transportation alleging that he would not have lost his job if the FAA inspector on the ERC had reported the plaintiff's medical condition to the Regional Flight Surgeon as required by the MOU. The plaintiff asserted claims against the DOT for ordinary negligence grounded in the alleged unlicensed practice of medicine by the FAA inspector and intentional infliction of emotional distress. The DOT then moved to dismiss the plaintiff's claims.

The Court agreed with the DOT and held that the plaintiff's claims were barred by the doctrine of sovereign immunity. The Court determined the plaintiff's allegations that the FAA inspector's alleged failure to comply with the MOU and the resulting termination of plaintiff's employment were really contract claims which are expressly barred by sovereign immunity and not covered under the Federal Tort Claims Act (which does permit some tort claims against the government). It also observed that the plaintiff had provided no evidence or case law to support his claims for unlawful practice of medicine or intentional infliction of emotion distress.

So, I think the takeaway from this case is that any disputes arising from an ASAP program are probably best pursued with the air carrier rather than the DOT. Although the government can be sued in tort (e.g. the plaintiff's negligence and intentional infliction of emotion distress claims), the burden is high to assert facts and precedent to support those claims. And as this case shows, contract cases against the government are, for the most part, completely barred.

Posted by Greg

August 31, 2018

The IRS May Disregard Your LLC, But You Shouldn’t.

As you may know, an aircraft owner may use a limited liability company (“LLC”) to register and hold title to the owner’s aircraft. An LLC is formed by filing articles of organization with Secretary of State (or equivalent) in the state in which the LLC is organized. The LLC has members who hold/own membership interests in the company that are represented by the members’ capital accounts. The LLC may be managed by managers or it may be managed by the LLC member(s).

An LLC is a type of business entity that has distinct legal personality from its owner(s)/member(s) and managers. An LLC is treated as a separate “person” in the eyes of the law with an independent existence from its members. Thus, if the owner/member of an LLC dies, the entity continues to exist (although an LLC needs to specifically elect to have this continuity of existence).

However, once set up, the laws governing LLCs require that certain formalities be observed (e.g. annual meetings, separate checking accounts, maintaining corporate/company books and records, filing annual renewals/registrations etc.). If the LLC does not comply with those formalities, it is possible that the law will not recognize the LLC as a separate “person” and will look to the LLC’s members or managers to personally honor the LLC’s obligations. This is called “piercing the corporate veil.” Not only is this a bad situation for the LLC members, this concept is frequently confused with the Internal Revenue Service’s treatment of an LLC as a “disregarded entity.”

Although an LLC is a “legal entity”, the Internal Revenue Service (“IRS”) does not treat an LLC as a “tax entity.” Rather, the IRS “disregards” LLCs for federal tax purposes as if the entity does not exist. Most LLCs with a single member are taxed as a sole proprietorship, while a multi-member LLC is usually taxed as a partnership. In some cases, the LLC can elect to be treated as an “S” corporation if the LLC satisfies certain criteria.

As a disregarded entity, a single-member LLC does not file an income tax return or report income, loss, deduction, or credit. Instead, the LLC member incorporates these tax items into the member’s tax return. Similarly, a multi-member LLC’s members and the members of an LLC that has elected “S” corporation tax status would report on their respective tax returns.

If you are using an LLC to own an aircraft, keep in mind that the IRS’s disregard of your LLC for tax purposes does not relieve you of your responsibility to comply with the formalities required by the laws applicable to LLCs. Failure to comply with the formalities can negate the personal liability protection otherwise afforded to an LLC’s members, and can also render the aircraft’s registration invalid. So, it is important to pay attention to both the tax and the legal aspects applicable to your LLC to take advantage of the benefits of owning an aircraft with an LLC.



Posted by Greg

August 17, 2018

No, A Court Can't Force The NTSB To Explain Why It Hasn't Completed An Investigation.

In a recent case, In re Show Cause Order Dated December 15, 2017, a federal court in Maryland has quashed a state court's order requiring the NTSB to designate a person to appear on its behalf and explain why the NTSB had not yet finished an investigation into a gas explosion. Although this case doesn't involve an aircraft accident, it is both analagous and instructive with respect to the autonomy the NTSB has with respect to its investigations.

The case arose out of a gas explosion which the NTSB was investigating and during which it had taken certain physical evidence into custody for analysis in making its determination regarding the probable cause of the explosion. As you might expect, around the same time multiple lawsuits were filed alleging that the explosion was caused by the negligence of the defendants and seeking to recover damages suffered as a result of the explosion.

Although the case does not provide the full background, I suspect that at least some of the physical evidence being held by the NTSB was of interest to the parties in the litigation and they were frustrated by the length of time it was taking the NTSB to complete its investigation and release the physical evidence. Certainly not an uncommon situation and, given the NTSB's limited manpower and the broad scope of its investigatory charge, the lengthy time required to complete an investigation is, in many cases, understandable.

In any event, at some point in the underlying state court litigation the court entered an order requiring the NTSB to "designate an official to appear before the court in order to show cause as to why the agency should not be held in contempt for its failure to complete its investigation regarding the cause of the explosion and to provide dates by which the NTSB would complete its investigation and release the physical evidence in its custody."

Well, when the NTSB received the order it promptly removed the case to federal court and asked the federal court judge to quash (reject or void) the order based upon the doctrine of sovereign immunity. (Sovereign immunity precludes lawsuit against the government unless the government has consented to the type of lawsuit). The Court found that the state court order "seeks to compel the NTSB, a federal agency, to send a federal official to appear in state court for the purpose of divulging information obtained in his or her official capacity", and thus the action was barred by sovereign immunity unless the government consented. Since the NTSB did not consent, neither the state nor the federal court had jurisdiction to compel the NTSB to comply with the order.

As this case shows, motions and orders will simply incur time and expense that will not, at the end of the day, get the NTSB to move any faster than it otherwise would and, in fact, may even create delay arising from the NTSB having divert its attention from its investigation to deal with the distraction of such motions/orders. So, the moral of the story, as frustrating as it may be, is: Litigants (and others) just have to wait for the NTSB to complete an investigation and/or release physical evidence in its custody.

Posted by Greg

August 10, 2018

Understanding and Complying With Aircraft Truth in Leasing Requirements

If you lease an aircraft that is a "large civil aircraft", as defined in 14 C.F.R. § 1.1 (12,500 pounds, maximum certificated takeoff weight), you should be aware of the truth-in-leasing ("TIL")requirements of 14 C.F.R. § 91.23. Section 91.23(e) defines a lease as "any agreement by a person to furnish an aircraft to another person for compensation or hire, whether with or without flight crewmembers." Assuming your arrangement for use of the large civil aircraft falls within this definition, then you must also comply with the following TIL requirements:
  • The lease agreement must be in writing;

  • The lease must include a written TIL clause that is in bold print, at the end of the lease, and immediately preceding the space for the parties' signatures, which includes:

    1. Identification of the Federal Aviation Regulations ("FAR") under which the aircraft has been maintained and inspected during the 12 months preceding the execution of the lease and certification by the parties that the aircraft is in compliance with applicable maintenance and inspection requirements for the operations contemplated by the lease (e.g. typically Part 91 since TIL requirements don't apply to Part 121 or 135 air carrier lessees);

    2. The name, address and signature of the person responsible for operational control of the aircraft under the lease, and certification that each person understands that person's responsibilities for compliance with applicable FAR;

    3. A statement that an explanation of factors bearing on operational control and pertinent FAR can be obtained from the responsible Flight Standards District Office ("FSDO");

  • A copy of the lease must be carried in the aircraft during all operations under the lease;

  • A copy of the lease must be sent to to the Aircraft Registration Branch, Attn: Technical Section, P.O. Box 25724, Oklahoma City, OK 73125, within 24 hours of execution; and

  • At least 48 hours before takeoff of the first flight under the lease the lessee must inform the responsible Flight Standards office by telephone or in-person of:

    1. The location of the airport of departure;

    2. The departure time; and

    3. The registration number of the aircraft involved.

In the past, the regulation required that the 48-hour notification be provided to the "Flight Standards district office nearest the airport where the flight will originate." However, when the FAA recently updated Section 91.23, it replaced this language with the a less specific reference to "the responsible Flight Standards office." And, unfortunately, this change in language has now created some confusion as to which FSDO the notice must be given: the FSDO where the first flight will originate, or the FSDO responsible for the lessee's home base?

However, based upon a review of the Final Rule that made the language change, as well as AC 91-37B, Truth in Leasing, I think the notice must still be provided to the FSDO with jurisdiction over the airport from which the first flight will originate consistent with past practice. Here's why:

The Final Rule states "[t]his rule does not change any existing processes. Processes for public interaction with AIR and AFS (such as application processes, reporting processes, and oversight processes) are documented in orders, notices, advisory circulars (ACs), and policy statements. Where general references to "the FAA" are introduced in specific sections, existing advisory material for the affected section specifies the AIR and AFS offices responsible for the function identified in that Section."

And then going back to AC 91-37B, Paragraph 10 states that the 48 hour notification must be made "to the FAA", with further clarification in Paragraph 10.1 that the "notification must be made to the FSDO nearest the airport where the lease or contract flight will originate." So, I don’t think the Final Rule’s language changes past practice – which was to provide notification to the FSDO with jurisdiction over the airport where the first flight under the lease originates.

However, I do think that it would make more sense for the notification to be made to the FSDO nearest the operator’s home base (and the language in AC 91-37B "where the lease or contract flight will originate" could support this position since it could be read to require notification to either the FSDO where the lease originates (home base) or where the first flight originates). And since one of the policy factors underlying the TIL requirement is FAA oversight lessees/operators, it would certainly make sense for the notification to be provided to the FSDO with jurisdiction over the lessee/operator rather than a FSDO with no connection to the lessee/operator and within whose jurisdiction the first flight under the lease only happens to originate.

But for now, the conservative approach is to provide notice to the FSDO with jurisdiction over the airport where the first flight under the lease originates. And rather than providing the notice via telephone, the notice may also be provided via facsimile which then provides the lessee with proof of delivery of the notice in the event that a dispute ever arises as to whether the notice was given to the FAA.

Posted by Greg

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