Short & Sweet no. 12
How to get the 0% airline VAT exemption meant for commercial operators

• How does the 0% VAT airline exemption work?
• What are the typical preconditions?
• Which operators need full importation?

Allow us to dig a bit deeper into the issues surrounding VAT and customs when airlines or commercial operators (like Part 135) are flying within the EU and showcase how VAT issues can be handled under full importation using the 0% VAT airline exemption, mainly referring to the use of the often-mentioned judgment C-33/11, A Oy from the European Court of Justice (ECJ).

The customs aspect of flying within the EU
Any aircraft flying into the EU will operate under customs control using either the Temporary Admission procedure (TA) or full importation (FI). There are no other options. The TA procedure can only be used by EU outsiders where the aircraft is owned (including any UBOs), operated, registered, and based outside the EU, leaving EU insiders with only one option: full importation. EU outsiders can, of course, choose to use full importation instead of TA if they find it beneficial. TA can be used to fly commercially without any problems if applied correctly.

What are the preconditions for the 0% VAT airline exemption?
The judgment includes a relatively detailed description of what it takes to qualify for the 0% airline VAT exemption for which, strangely enough, no EU member state has the same set of preconditions. Therefore, the account below is an overall EU-wide description of the preconditions.

1. The majority of all flights must be flown outside the EU home member state
   This precondition is measured based on the entire fleet of the operator. If the operator does not have any home base or fixed base within the EU, the operator will, in most cases, be considered as having a qualifying flight pattern. The fleet requirement is often described as a number between 50-70% of all flights which must have been flown outside the EU home state.
2. A well-established operator structure must exist
   The typical approved structure is based on an Air Operator Certificate (AOC), but other structures may also qualify, e.g., if an operating company (like Part-NCC approved) delivers flight services to companies under the same umbrella company.
3. The operator must physically operate the aircraft
   The judgment describes that the operator must merely “use the aircraft”. Some EU member states are stricter and require between 70-100% specific commercial use of each aircraft – typically defined as a charter flight – disqualifying the typical management agreement where owner flights are based on reimbursement of costs. The latter is not described in the mentioned judgment and must be seen as a rather loose and limiting interpretation of the judgment.

IMPORTANT!

No operator should use the 0% airline VAT exemption without having received a binding assessment ruling covering the practical use – from the responsible EU member states due to the above-mentioned differences. The risk and values involved are simply too great, particularly when talking about other use than simple airline work. Various exotic papers scandals have repeatably shown that there is no alternative to having everything approved in advance.

Which operators need full importation?
Non-EU operators, such as Swiss, Asian, and North American operators, do not need full importations to fly commercially within the EU. Please, have a look at our Short & sweet no. 2 Flying commercially within the EU. As mentioned in the introduction, full importation is mandatory for all EU airlines and commercial operators, as well as non-EU operators having an EU-based aircraft.

Important things to know about full importation
Operators should be aware off that full importation includes a potential VAT and tax liability and requires onwards continuous correct worldwide economic activity as well as correct handling of any potential worldwide non-business use and non-commercial use; requirements that the TA procedure does not have. The statute of limitations is five years for full importation, and the use of the aircraft must worldwide stay fully compliant with current EU regulations until the end of this period.

How can we help?
If you have questions about the above, please do not hesitate to contact us.