Short & Sweet no. 13
Importation impacts when traveling the world in corporate aircraft

• Is free circulation a blessing or a straitjacket for EU outsiders?
• Non-business use is the problem 
• Is it possible to be 100% tax/VAT compliant in more than one jurisdiction?
• Wrong choices may have devastating costs

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.

This means that EU outsiders can choose to use full importation instead of TA if they find it beneficial. Some reasons to do so could be due to an establishment of an EU base for the aircraft or the wish for flexibility with free circulation within the EU. For the first purpose, a full importation is a must, while a full importation for the latter cause often is triggered by a nice-to-have wish but where the related consequences are often not fully understood. Allow us to dig deeper into the impact multiple full importations could have if an aircraft is fully imported in more than one jurisdiction.

Is free circulation a blessing or a straitjacket for an EU outsider?
The EU-term, Free Circulation, does not mean that the aircraft can be used for any and all purposes once the aircraft has been fully imported. The consequence is quite often the opposite. Full importation of an aircraft can become a straitjacket if the importing entity has been deducting VAT (used for corporate owners) or used a VAT exemption (used by commercial operators).

EU free circulation = EU VAT impacts on all worldwide flights
Judgments have earlier determined that once imported into the EU, the full usage, including flights outside the EU, must follow the EU preconditions for the VAT to not risk a payback of the EU VAT. The aircraft is – in a VAT context – considered as being 100% under EU jurisdiction, where home state rules must be disregarded to be compliant with EU rules if there are differences in the respective procedures, as the examples below depicture.

Is it possible to be 100% tax/VAT compliant in more than one jurisdiction?
Please, imagine the scenario when trying to comply with two or three different and conflicting sets of rules on how to handle non-business use correctly, which will be the situation if, for example, a US part 91 operator chooses to import in both the EU27 and the UK. The FAA and IRS rules are often conflicting with the EU27 and UK rules on how to pay for non-business use as well as how much to pay.

Example 1: US operators commonly use imputed income as a method of compensation which is not accepted within the EU27 and UK.

Example 2: US operators commonly use the SIFL compensation rates as a method of compensation which is not accepted within the EU27 and UK as the amounts are often too low

Example 3: How is “commercial use” defined in a VAT/customs context, when using the VAT exemption by commercial operators? Some countries will determine the usage according to how the service is invoiced, other countries will look at how a specific flight is filed (M or G) in aviation traffic system. Other countries will not consider owner flights filed as M flights as commercial flights in a VAT/customs context – even though the flights are also 100% invoiced as a charter. This is a mess and quite often it is simply not possible to be compliant in different jurisdictions.

It is often not possible to comply correctly with the rules in all jurisdictions simultaneously. The differences are simply too big and the consequences too high. A US operator will perhaps plan to stay compliant with the FAA and IRS rules when it comes to regulation of non-business use. However, not being compliant with the EU27 and UK procedures could cost the full VAT value in both mentioned jurisdictions, a double fine, totaling up to 40% of the aircraft’s value. Our advice is to use TA whenever possible.

How is an EU importation or admission impacted when the aircraft flies outside the EU?
FI:  Any non-business leg flown is a potential violation if not handled correctly.
TA: No impact. Only flights within the EU matter.

The TA procedure has become a very well-defined customs procedure
Please note that TA can be used to fly privately, corporately, and commercially within the EU without any problems and with EU-resident persons onboard, if applied correctly. Moreover, since 2014 the TA procedure has become a very well-defined customs procedure, especially for corporate and commercial aviation. This is thanks to the huge effort from, e.g., the EU Commission and NBAA.

IMPORTANT!

Various exotic papers scandals have shown that the risk of extensive audits exists and can be very costly and the Paradise Papers have shown us that the aviation industry can be heavily hit.

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.