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 and VAT compliant in multiple jurisdictions?
• 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 only one option: full importation.

This means that EU outsiders can choose to use full importation instead of TA if they find it beneficial. Reasons to do so could be the 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. Yet, for the latter, a full importation and its subsequent consequences are often not fully understood. Let us dig deeper into the impact of an aircraft being fully imported in multiple jurisdictions.

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 100% under EU jurisdiction, where home state rules must be disregarded to comply with EU rules if there are differences in the respective procedures, as the examples below depict.

Is it possible to be 100% tax and VAT compliant in multiple jurisdictions?
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 into both the EU27 and the UK. The FAA and IRS rules often conflict 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 compensation, which is not accepted within the EU27 and the UK.

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

Example 3: How is “commercial use” defined in a VAT and 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 look at how a specific flight is filed (M or G) in the aviation traffic system, and other countries again will not accept owner flights filed as M flights as commercial flights even though the flights are 100% invoiced as a charter. This is a mess, and quite often, it is not possible to be compliant in multiple jurisdictions.

It is often not possible to comply correctly with the rules in all jurisdictions simultaneously. The differences are too big, and the consequences too high. A US operator will perhaps plan to stay compliant with the FAA and IRS rules regarding regulation of non-business use. However, not being compliant with the EU27 and UK procedures could cost the full VAT value in both 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 handled incorrectly.
TA: No impact. Only flights within the EU matter.

The Temporary Admission 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. 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 is very costly, and the Paradise Papers have shown that the aviation industry can be heavily hit.

Important things to know about full importation
Operators should be aware that full importation includes a potential VAT and tax liability, requires onwards continuous correct worldwide economic activity as well as correct handling of any potential worldwide non-business use and or 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.