NBAA forum discusses tax implications of aircraft ownership and operations by Roger A. Mola.

"The FAA, and the IRS…they really don't think alike," began tax attorney Gary Garofalo, first speaker at the NBAA Federal Aviation Tax Forum in Arlington, Va., on May 7. Some 80 specialists, accountants and financial officers attended the most advanced forum the NBAA tax committee has held on aircraft taxation.

"What I'm talking about is counterintuitive from a legal point of view, but there aren't a lot of FAA regulations that are so clear," continued Garofalo. "Your lawyers will tell you to operate as a flight department company to limit your liability, but the FAA says 'No.'"

Regulators distinguish ownership from oversight, and flight management from financial management. Alan Goldstein, v-p of Citigroup Business Services and chairman of the NBAA tax committee, carved the distinction.

"Something might work from the tax side, but then you're in trouble with the FAA," said Goldstein. "With the FAA it's all about 'operational control,' and with the IRS it's about 'possession, command and control.'"

A dozen speakers underscored the perils of navigating that gulf, giving practical tips for nearly all U.S. operators except those in Alaska, whose congressional leaders often land a "gravy plane" of tax relief.

Garofalo and Goldstein unmasked an adversary that has appeared on few screens: the Department of Transportation.

"Most flight departments have never heard of the DOT as a regulator of flight operations," said Garofolo. A business incorporated in the U.S. can nonetheless be labeled a foreign company if only a single executive–its president–is not a U.S. citizen, in which case DOT Part 375 applies. Last July 7, NBAA published an initiative in the Federal Register for relief, and the matter remains open pending comments.

Goldstein pointed to global sourcing: "I can think of four U.S. companies just off the top of my head that have had or now have foreign leadership: Heinz; Ford Motor; Coca-Cola; and Citibank, which I know a little about. It's odd to think of Ford as a foreign company." Part 375 can bite even if executives over the president are U.S. citizens.

Garofalo dispelled a popular misconception with regard to aircraft interchange, FAR 91.501(c)(2).

"I emphasize swapping equal time because that's the essence. A lot of people think with interchanges they can make up the difference in hours for unequal-cost aircraft. That's a no-no. Interchange is a swapping of hour for hour." No charge is made except one not to exceed the difference between the cost of owning, operating and maintaining the two airplanes.

"My personal opinion is that demonstration flights are not a lease, but I can't point you to any FAA authority on that," said Garofalo in the next section. "You can charge for demo time at the same fully allocated cost as time sharing. Joint-ownership agreements under 91.501(c) (3) are not available to fractional owners," he cautioned. "The FAA was afraid you'd go below the level of a one-sixteenth share, a critical part of the fractional regulations."