Clarification of Customs Terms for

Temporary Aircraft Admission to EU

PRESENTED BY:

Terry Yeomans – Program Director for IS-BAH™

International Business Aviation Council

Thursday March 26th 0825-0955hrs

International Operators Conference | San Antonio, TX | March 23 – 27, 2015

Viewer discretion advised

Dull subject matter warning !

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Sales and Use Tax

• ….assessed upon tangible personal property purchased by a

resident of the assessing state for use, storage, or

consumption in that state (not for resale), regardless of where

the purchase took place.

• If an aircraft is brought into XXXXXXXX within one year of

purchase and is either regularly based within this state or more

than one-half of the aircraft's operating hours are within this

state, such aircraft is taxable in this state.

• No use tax is due if the aircraft is hangared outside YYYYY and

more than 50 percent of its use is outside the state.

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ISTANBUL CONVENTION

On Temporary Admission

(Istanbul, 26 June 1990)

"temporary admission" means :

“the Customs procedure under which certain goods (including means of transport) can be brought into a Customs territory conditionally

relieved from payment of import duties and taxes and without application of import prohibitions or restrictions of economic character;

such goods (including means of transport) must be imported for a specific purpose and must be intended for re-exportation within a

specified period and without having undergone any change except normal depreciation due to the use made of them.”

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• In Feb 2014, The International Business Aviation Council (IBAC) requested

clarification from the World Customs Organization (WCO) on the interpretation of

the term „private use‟ and „commercial use‟ in the context of temporary importation

of aircraft. The terms were allegedly interpreted not in a harmonised manner by

Customs Authorities, which caused confusion among third country non-European

Union operators flying into the EU.

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IBAC highlighted that the terms „commercial use‟

and „private use‟ of means of transport (MoT) as

defined in the Istanbul Convention have a

meaningful difference compared to the definitions

of the global air transport safety and economic

regulatory regimes.

• Corporate aircraft used for business trips are “commercial”

use.

• If operated by a corporation or management company, a flight

is commercial and no internal flights allowed

• As a commercial charter operation, no internal flights in the EU

are allowed.

• Third country aircraft flying within the EU are not allowed to

carry EU residents as passenger and/or crew….

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Examples of concerns

• A Canada-based corporation flies its Canadian-registered

corporate aircraft from Montreal to Paris and Nice for business-

related meetings with local offices, customers and suppliers.

All on board are Canadian citizens. A Paris-based employee of

the corporation flies from Paris to Nice for the meeting there.

The aircraft departs Nice for Montreal.

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Scenario 1

• We deem above case to be the private use of company owned

transport for a business trip.

• Would carriage of promotional materials (brochures etc.)

change this ?

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IBAC position

• „Private use‟ as defined in Article 555(1)(b) CCIP (Regulation 2454/1993).

As the use of means of transport in this case does not involve remuneration, it does not fall under the definition of commercial use but remains in the scope of private use.

The transportation of company materials / brochures is not the main purpose for the usage of the means of transport and it is not a direct commercial activity but `transport of goods in commercial context`, therefore it is private use.

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EC position

• A Canada-based corporation flies its Canadian-registered

corporate aircraft from Montreal to Paris and Frankfurt for

business-related meetings with local offices, customers and

suppliers. All on board are Canadian citizens. A Paris-based

employee of the corporation flies from Paris to Frankfurt for the

meeting there. The aircraft departs Frankfurt for Montreal.

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Scenario 2

• We deem above case to be the private use of company owned

transport for a business trip.

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IBAC position

• There is no direct remuneration involved for the

transportation of company employees as it is carried out by

the corporate aircraft.

Direct payment means that a person using the service pays for

the service.

The case fulfils the conditions of private use.

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EC position

• A U.S. citizen, resident of the U.S., owns his aircraft but pays a

management company on a monthly basis to provide crew and

support. He chooses to use his aircraft to fly from the U.S. to

various destinations in the EU to watch a football tournament and

invites some U.S. citizen friends to join him at no cost to them.

The aircraft owner pays all transportation expenses.

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Scenario 3

• We believe this means of transport, is a not-for-remuneration

operation, meets the conditions under temporary admission

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IBAC position

• Private use.

• The payment involved in this case is not remuneration for the

transport of persons as stated in the definition of commercial

use but is regarded as indirect payment by the owner of the

means of transport.

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EC position

• A UAE-based company charters a UAE-registered jet to take

employees, all non-European citizens, from Dubai to

Amsterdam, Paris, and Rome. The aircraft carries only the

same passengers throughout the journey. The operator

obtains the appropriate traffic right permissions from the

individual states. The flight returns from Rome to Dubai.

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Scenario 4

• We believe this means of transport is a for-remuneration

operation, meets the conditions under temporary admission

where the operator obtains the necessary traffic rights.

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IBAC position

• Private use.

• The payment made by the company is not direct payment for

the transportation of employees but for the lease of the jet.

Therefore, it remains private use.

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EC position

• For purposes of customs regulations, an "internal" flight is between any two points within the EU. "Private use" flights may operate between any two points under temporary admission. "Commercial use" flights may also operate between any two points under temporary admission, provided such flights have received the necessary authorizations from the Member States concerned.

• Position of the EU Customs Code Committee:

It agrees with above statements.

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Internal traffic

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Commercial use ?

• Regarding the definition of "commercial use" of means of

transport, in this case business aviation, transport "for

remuneration" means whether passengers paid for air transport

service (i.e., a ticket) or whether the whole aircraft was chartered

to provide transport service.

• Position of the EU Customs Code Committee:

Commercial use as defined in Article 555(1)(a) CCIP means that

passengers have paid for air transport service (i.e., a ticket).

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Commercial use ?

• Transport of brochures or materials for promotional purposes would not

cross the threshold of "commercial use", but transport of items for sale,

whether or not for remuneration, would qualify a flight as "commercial".

• Position of the EU Customs Code Committee:

If the transportation of company materials/ brochures is not the main

purpose for the usage of the means of transport and it is not a direct

commercial activity but `transport of goods in commercial context`, then it

is private use even if the company brochures or materials for promotional

purposes are sold (which is usually not the case).

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Registered owner

• Definition and use of “person”: According to the Convention, a

“person” means “both natural and legal persons.” In considering

private vs. commercial use, some Customs Authorities see private

use of an aircraft as only personal use by an individual. If a

corporation or company, i.e. a “person” according to the

Convention, operates its aircraft for its own purposes, without

holding out to the public for remuneration or hire, under what

context is the operation of that aircraft considered commercial and

under what context is it considered private?

• Position of the EU Customs Code Committee;

in all scenarios given – Private.

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Crew

• Citizenship or residence of crew aboard: Does the citizenship or

residence of the crew members, e.g., pilots, cabin crew, have a

bearing on the decision as to whether a business aircraft is eligible

for temporary admission? If so, please provide the policy basis.

• Position of the EU Customs Code Committee:

Only the residence of the pilot / co-pilot matters. The

citizenship or the place of residence of the cabin crew is not relevant in

the case described.

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Crew

• In the case when the owner of the aircraft is a corporate entity and

the aircraft is used under TA by a contract pilot (natural person established in the EU), then Article 561 CCIP is applicable.

“…. employed by the owner of the means of transport established outside that territory or otherwise authorised by the owner.”

The condition of “this holder being in the customs territory at the time of use” set in Article 560 is not relevant in this case.

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Conditions

Istanbul Convention ANNEX C

ANNEX CONCERNING MEANS OF TRANSPORT

Article 5

For the facilities granted by this Annex to apply :

Means of transport for private or commercial use must be registered in a territory other than that of temporary admission, in the name of a person established or resident in a territory other than that of temporary admission, and be imported and used by persons operating from such a territory;

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Period of discharge

ANNEX C

ANNEX CONCERNING MEANS OF TRANSPORT

Article 9

1. Means of transport for commercial use shall be re-exported once the transport operations for which they were imported have been completed.

2. Means of transport for private use may remain in the territory of temporary admission for a period, continuous or not, of six months in every period of twelve months.

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Thank You

CUSTOMS CODE COMMITTEE

Section for Special Procedures

Temporary Importation

Commercial and private use of means of transport

(request for clarification by IBAC)

Brussels, 13 November 2014

TAXUD/A2/SPE/2014/010 EN-REV3

http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/tempora

ry_importation/index_en.htm

EN/FR/DE

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