The Complete Story on Aircraft and Yacht Sales Tax

In the everyday world of aircraft and yacht ownership,Where must possession occur?
the following story is played out from coast to coast.How are first use, first functional use, and operational
The whispers in the crowds of prospective ownersuse defined?
often are based on the age-old question, "is it reallyWhat are the procedural requirements of the test?
possible to legally avoid sales tax, or am I risking3. Purchased for out of state use
embarrassment if I get caught trying?" The stressWhere must possession or title occur?
often crashes into the life of the financial personnel toHow is first functional use defined?
find workable solutions after the client takes theHow long is the test period?
survey of his friends on the golf course.What are the procedural requirements of the test?
The CPA cringes while he is instructed by his client toHow does the aircraft owner document periods of
make the new deal work by tomorrow morning, andtime when the aircraft is not in flight, or the vessel is
"oh, by the way, I don't want to waste a nickel on tax."moored?
He inherently knows that no matter how careful he isWhat circumstances shorten the test period?
to explain every minute detail of the strategy to Mr.How does storage for shipment affect the
Big, it is ultimately the owner who will demand that heexemption?
be able to use his new toy wherever and however he4. Purchase for resale
wants. He will end the meeting by commanding theCan a purchaser of a single item claim this exemption,
CPA to, "make it work out, I'm sure you can find aor must the owner be a registered dealer?
way."Can any use, other than bonafide demonstration and
Many buyers listen to the free advice that comesdisplay be made?
once they first enter the sales cycle. The sales personWhat are the documentation requirements to support
who generally works with the belt and suspendersdemonstration use?
clients often take the most conservative approach andHow much use is too much to claim a resale
advise against "risky tax schemes." Theexemption?
wheeler-dealer salesperson blabs on about the latestCan a charge be levied for a demonstration flight of
trick and pats the back of his new client while hean aircraft?
croons, "trust me, it is easy to get out of the tax."How does personal use affect the exemption?
Neither approach will serve the new owner very well.5. Occasional use
The basic problem is that, unlike federal tax adviceIs this exemption available in the state the purchaser
which is based on a code that applies everywhere inintends to claim this exemption?
the United States, sales tax laws depend on theWhat characteristics must the seller avoid, in order for
codes written in each separate state. Currently fivethe sale to qualify as an occasional sale?
states have no sales and use tax. However, that6. Out of state buyer
leaves forty-five others that will require properCan an out of state buyer avoid sales tax on an
research. Unless you have nothing to do but spendaircraft or vessel? If so what are the requirements?
your entire life doing sales and use tax research, it isHow long can an aircraft remain in state after the
impossible to keep track of the constant changespurchase before the transaction becomes taxable?
state-by-state. The basic problem with implementing aWhat if repairs or training are required?
credible tax strategy for an aircraft or yacht purchase7. Lease
is that the buyer must mesh the details of a strategyIs it a lease to a common carrier?
that reduces the income tax obligation, minimizes theIs it a lease to a flight school?
capital gains tax, reduces property tax and quiteIs it a lease to a private party?
possibly eliminates the sales/use tax.Is it a lease to a contract carrier?
When you add "like kind" forward or reverseHow is the tax reported?
exchanges and fractional share ownerships into theHow does the purchaser insure that he can purchase
components of an aircraft strategy, you then mustthe property ex-tax and pay based on the lease?
consider how each piece of ownership or eachIs the tax assessed on the lessor or the lessee?
transaction caused by the exchange through anBased on my research, the types of failures that are
intermediary may create a potential sales or use taxinherent by using the possible exemptions are:
assessment.A. Common carrier (Aircraft only)
With proper planning and research you can assist yourMany people believe that merely flying the aircraft in
client to legally avoid sales/use tax on the purchase ofPart 135 qualifies for an exemption.
an aircraft or vessel. However, it depends on howWhen the owner is in control of the aircraft, he may
much the purchaser values the money saved, versus,be causing a failure of the exemption by flying in Part
the effort required to go through the legal hoops to91.
avoid the tax. If your client is an aircraft or yachtWhen the owner leases an aircraft to a charter, he
dealer, you can also help the business to bulletproofputs the control of the documents needed to support
their records from an audit by the Board ofthe exemption in the hands of another party.
Equalization. An effective strategy should includeInsufficient revenues may void the exemption.
components that protect both the buyer and the seller.All Part 135 flights do not qualify as common carrier
Sales tax research must contain a foundation of aflights.
basic understanding of the law that will apply in allB. Interstate commerce
cases, they must be targeted to focus in on the exactFailure to keep exact logs
needs of the client. Once the foundation is established,Failure to document commerce flights
the client can then do a risk analysis of the availableIs the test accomplished by miles, hours, or days?
options. In all cases the burden of proof rests with theC. Purchased for out-of-state use
taxpayer.Failure to properly document location of the aircraft or
In order to support a claim for an exemption two basicyacht when title or possession is transferred
things are required. It is essential that both the formFailure to keep proper logs
and the substance of the transaction are met. It is notFailure to document storage location and time
sufficient enough to actually do all the things the localInconsistencies in documentation
law requires to exempt the transaction. It is equally vitalFailure to support intent
that the taxpayer can adequately document the actualRegistering an aircraft or yacht in Oregon, Nevada or
possession, storage and use of the property. Forto a Delaware corporation as part of a strategy to
example, a taxpayer could read the laws in Californiaavoid tax, can incur a fraud penalty for evasion.
that pertain to a purchase for out-of-state use. HeD. Purchase for resale
subsequently actually does all the things that areMaking improper use of inventory
required, including out of state possession, and usingCharging for use
and storing the aircraft or yacht outside CaliforniaPersonal use
enough time to meet the requirements of CaliforniaDocumenting demonstration and display
Sales and Use Tax Regulation 1620 (b) (3). TheE. Occasional sale
transaction can still be held taxable if the acceptableThis exemption is not available in all states.
forms and documents which support the actual use ofFailing to support the status of the seller
the property are not provided to the tax agency. TheTransferring debt between entities along with the
fact that in many cases the state does not questionaircraft or vessel
the transaction until after the aircraft or vessel is soldF. Out of state buyer
to another party makes it very difficult to gather theFailure to prove the legal status of the out of state
logs and receipts.resident
Some of the various types of exemptions that areIn state residency for the purpose of sales tax can
available to the CPA's clients are:require as little as a checking or savings account.
1. Common carrier (Aircraft only)G. Lease
2. Interstate commerceFailure to properly notify the state to be able to
3. Purchased for out of state usepurchase ex-tax
4. Purchase for resaleFailure to understand against whom the tax is levied
5. Occasional saleand how it impacts the client
6. Out of state buyerFailure to understand whether it is a sales tax or use
7. Leasetax
8. Facts or circumstances defined in law which allowsWhen a purchase is of a fractional share of an aircraft
the purchase to fall outside the definition of sale orit becomes almost impossible to use certain
purchase for sales and use tax purposes.exemptions because of the needs of the other
Even though each state may have sections whichowners. A winning strategy can be implemented, but it
relate to each of the above, you cannot presume thatrequires the compliance of the fractional partnership.
the details of the exemption are the same from stateIf an aircraft strategy includes a 1031 like kind
to state. For example, the language in certain sectionsexchange, each possible exemption needs to be
of law in Nevada are exactly the same words used inevaluated versus the four transactions required to
California Sales and Use Tax, however, Nevada andcomplete each exchange. Each of the four
California interpret the same language differently. Youtransactions has it own tax exposure. When a reverse
must research the cases to decipher each statesexchange is used, five transactions are created that
pattern of decision making.need to be evaluated. A further complication is that
The important details actually depend on how thesome states will consider the qualified intermediary as
requirement by each state will impact the needs of thea retailer of aircraft because it is engaged in the
purchaser. Some questions that need to be asked ofbusiness of selling aircraft. It is fatal to forget that IRS
the clients so that the CPA can assist them torulings have no bearing on how each state views each
differentiate between the possible exemptions are:transaction.
1. Common Carrier (Aircraft only)Armed with an understanding of the sales and use tax
Do you really want strangers flying in your newlaws it is possible to create a strategy that legally
aircraft? Exclusive use may void this exemption.avoids the sales and use tax. Acquiring sales tax
Are you contemplating a lease arrangement with aadvice from anyone, other than a sales tax expert is in
charter, or are you planning to acquire your own FAAmost cases a waste of time and money. This area of
certificate?tax law is too complex, the targets are constantly
Are you aware that the documentation requirementschanging, and the potential tax assessment is very
and the term of the test period may be significantlycostly. Especially when you add the additional interest
greater than most other exemptions?and penalties that can range from as little as ten
2. Interstate Commercepercent for failure to file, up to a fifty percent penalty
Do you know how your specific state definesfor registering an aircraft out of state in an attempt to
"interstate commerce?"evade tax.
How do you calculate intrastate flights using this test?