David G. Mayer

  • Tracey Cheek posted an article
    AINsight: Millennials' Shared Use Is a Real Deal see more

    NAFA member, David G. Mayer, Partner at Shackelford, Bowen, McKinley & Norton, LLP, discusses millennials, shared use, and private jet travel.

    Millennials—those ranging in age from 21 to 37 years old this year—have discovered the private jet travel experience, and they like it. With unique attributes, this generation seems broadly interested in on-demand chartering, sharing flights with friends and, to a lesser extent, owning jets and other types of private aircraft—always on their terms.

    Also known as “Gen Y,” Millennials seem to enjoy private aircraft travel “experiences” at an acceptable cost with emphasis on safety, freedom, personalization, efficiency, speed, privacy, customization, and transparency—all couched in a high level of service and luxury. They also crave digital connectivity, mobility, and flexibility to travel when and where they want, preferably arranging private flights on mobile devices.

    Their perception of the benefits of business aviation includes accessibility of aircraft on-demand, the ability of aircraft to save time, and the efficiency of aircraft travel to increase their work productivity.

    Finally, Millennials care deeply about climate change and social causes. They might prefer aircraft operators that demonstrate their environmental responsibility. In fact, the business aviation community has long been committed to mitigating climate change, proven in part by the formation of a broad industry coalition that emphasizes developing and using sustainable aviation fuel (SAF).

    As a generation of roughly 73 million adults, Millennials often have high ambitions. Their top aspiration and priority in 2019, according to Deloitte, is to travel and see the world (57 percent). But their needs and wants are far more than aspirational. Some Millennials have, and others in the foreseeable future may earn or inherit, more than enough money to travel by private aircraft amid their peers who, by one report, now make up nearly half of the world’s super-wealthy, including Millennial billionaires.

    Indeed, Millennials already seem to be altering the business aviation industry by transforming a business aircraft from a product for purchase into a tool for transportation services in their “click and ride” world.

    VIABLE STEPS FOR MILLENNIALS TO ACCESS PRIVATE AIRCRAFT

    What, then, is the right generational, practical, and legal path forward in business aviation to meet the needs and wants of Gen Y? Setting aside the critical issue of selecting the right aircraft for use or purchase, let’s consider two high-level access and legal structures for Millennials to buy, use and share private aircraft along with the corresponding obligations, risks, and benefits.

    First, Millennials can decide, and currently seem to prefer, to experience private aviation travel without commitment to, or investment in, aircraft. They simply prefer to click and ride. Second, Millennials can elect to own or lease a fractional share of an aircraft or a whole aircraft.

    Regardless of what Millennials choose, private aviation is highly regulated. The FAA oversees the safety of U.S.-registered aircraft operations under the FARs, including Part 91 private flights and Part 135 charter.

    Further, now—perhaps more than ever—the FAA is looking for, and potentially taking enforcement actions against, operational and other violations of the FARs. Even with this FAA presence in mind, Millennials can still share ownership or use of aircraft with others or go it alone—as long as they properly structure their arrangements under the FARs.

    The following two use and ownership options work under the FARs:

    • Use only with no ownership commitment—click and ride. Many Part 135 operators do and increasingly will offer charter-based services such as on-demand charter flights (like renting a car), jet cards (types of pre-paid flight debit cards), block charter programs (package of charter flight hours), club or member programs (reduced flight costs for up-front fees). With myriad choices available, Millennials can select flights by criteria that meet their personal life values, economics and travel preferences, including aircraft type, flight sharing, transparency, connectivity, and privacy.

    Although many of the services might be easy and simple for Millennials to use, it is imperative that Millennials do not trade their safety just to pay lower charter fees offered by flying with illegal charter operators. Millennials should do their diligence to identify and steer clear of such legal and personal risks.

    • Own or lease specific aircraft. Properly structured, Millennials, solo or in a group, can take a deeper commitment in accessing private aircraft by leasing or owning an aircraft. Ownership, of course, requires a capital investment in an aircraft unlike the click-and-ride model, which has no ownership component. Banks may want to lend part or all of the purchase price to Millennials or buy and lease the aircraft to them, which frees up cash for Millennial to deploy in other ventures or equities.

    Within the option to buy or lease aircraft, Millennials can buy and finance or lease a fraction or whole private aircraft. Although a large number of financiers compete to finance or lease whole aircraft, relatively few lenders or lessors finance fractional shares.

    Fractional share programs, regulated under Part 91K, offer one good way to dip a toe into the water of aircraft ownership. Fractional shareowners buy and use a certain number of flight hours associated with owning or leasing as little as a one-sixteenth share of an aircraft.  This type of purchase might appeal to Millennials who decide to change their interests from click-and-ride offerings to ownership in an aircraft fleet that, for example, uses newer engines and fuels that minimize an aircraft’s carbon footprint, has an outstanding safety record, or has better connectivity features on the ground and aloft.

    The next step up in commitment is to buy or lease a whole private aircraft instead of a fraction of one. A Millennial might be able to locate and buy an aircraft that adequately meets his or her personal life values and needs, including size, customization, privacy, and technology. Whole aircraft purchases start to make sense when flying at least 200 hours per year. Before then, click-and-ride or fractional programs might work better economically.

    FARS NEVER FAR AWAY

    If Millennials need or want to share ownership or leasing of an aircraft jointly with others, they can legally structure such sharing under the FARs. However, being an owner and an operator might not be the same thing, and a joint operator (either as a joint owner or a joint lessee) under Part 91 can be tricky. For example, as a general rule, no cost-sharing, reimbursements, or other compensation in any form can be conveyed to any operator or owner for any Part 91 flight, other than under very limited circumstances.

    In many situations, receipt of compensation by the operator will convert the Part 91 flight into an illegal charter. However, if correctly structured, Part 91 will allow Millennials to enter into certain joint ownership and leasing arrangements that Millennials can use to accomplish their objectives.

    In contrast, under a bona fide Part 135 flight operation, Millennials can devise their own cost-sharing arrangements under appropriate agreements with much greater flexibility, typically at a higher cost than Part 91 flights.

    Millennials today and in the foreseeable future will have the financial means to use or acquire personal aircraft. Only time will tell whether Gen Y prefers to fly private aircraft as a service free of the ownership risks or lean into the world of aircraft ownership or leasing, alone and with friends, to fulfill life experiences and work objectives. No matter which way Millennials go, the FARs will be right there with them.

    This article was originally published in AINonline on September 13, 2019.

  • Tracey Cheek posted an article
    Tip to Tail—Buying New vs. Used Bizjets see more

    NAFA member David G. Mayer, Partner at Shackelford, Bowen, McKinley & Norton, LLP, shares what you need to know when buying a new versus used business jet. 

    Purchasing a new business jet from the manufacturer (OEM) is a far different transaction than buying a used aircraft from a private third party. And planning for aircraft ownership is also part of this story.

    The contrast in new versus used aircraft is especially pronounced when the used aircraft does not comply with the FAA’s January 1, 2020 Automatic Dependent Surveillance-Broadcast (ADS-B Out) mandate. The lack of ADS-B Out compliance almost certainly will alter the negotiation for such used aircraft and, if the aircraft is not compliant by 2020, it could morph into a fancy paperweight. New OEM aircraft already comply with ADS-B Out requirements.

    This blog covers a few significant strategic, legal, and negotiating differences relating to new and preowned aircraft sale deals and briefly touches on ownership tax planning, risk management, regulatory compliance, and financing/leasing. This blog also briefly touches on OEMs’ perspectives on negotiation and dispute resolution.

    WHAT'S FOR SALE?

    The big-money aspects of a new aircraft deal start by selecting the right aircraft from the OEM and negotiating the aircraft purchase price. Unlike used aircraft deals, OEM agreements include terms on such items as upgrades, installment payment amounts, and pilot and technician training.

    The used aircraft market enjoyed a record year of sales in 2018 that depleted much of the desirable inventory. However, some experts suggest that the cost of ADS-B equipage and a slowing global economy may cause more used aircraft to come to market in the near term; and the lack of ADS-B Out technology may prolong or complicate buy/sell negotiations even if more aircraft become available.

    When purchasing a new or used aircraft, the parties should engage a team of knowledgeable business aviation experts, consisting primarily of an experienced aircraft broker, a technical inspector/analyst, accounting tax advisor, aviation counsel, aircraft management company, insurance broker, and capable title company or special FAA counsel. A non-aviation participant on the buy or sell side can make transactions more difficult or inefficient for experienced buy/sell teams and their principals.

    Every used aircraft should (but surprisingly does not always) undergo a “pre-buy” inspection before a purchase occurs. The inspection should involve technical experts that delve into the records of the aircraft, ADS-B Out compliance, and the physical/mechanical condition of and required repairs to the aircraft. Counsel should conduct or order title, lien, and other searches at the FAA and on the International Registry with a focus on understanding the domestic and any international ownership since birth of the aircraft.

    For new OEM aircraft, the pre-buy inspection process is dissimilar to preowned aircraft, so much so that OEMs often say that an independent inspection of a factory-new aircraft is unnecessary and the OEM can handle everything from contract to delivery.

    Although some purchasers accept exclusive OEM oversight, all purchasers should still consider engaging a technical expert to interact with the OEM’s teams and inspect the aircraft during construction, knowing that OEMs usually will facilitate such inspections but with appropriate limits. Fundamentally, the expert can assure the purchaser that the aircraft conforms to the agreed specifications and the OEM delivers the aircraft in pristine condition. Also, the parties should always conduct legal diligence similar to a used aircraft sale.

    CONTRACT NEGOTIATIONS AND DISPUTE RESOLUTION

    Contractual provisions for used and OEM purchases have some common terms as well as major differences. OEMs believe the form of purchase and sale agreement they provide to their customers works well with few changes. Consequently, the extent of document revisions negotiated and accepted by an OEM may, but not always, pale in comparison to extensive changes drafted into used aircraft purchase agreements.

    OEM contracts personnel, most of whom are not lawyers, have flexibility to make reasonable contract revisions, but their authority has well-honed limits. For example, their authority probably does not extend to accepting unusual revisions, settling a dispute, or altering fundamental OEM liability protections. Accordingly, purchasers should expect these contracts people to seek authority from senior managers or general counsel for revisions to obtain policy or legal guidance on an acceptable contract revision or dispute management.

    For OEMs, each customer and its sale agreement is unique. As such, OEMs uniformly frown on aviation counsel using as precedent sale agreement provisions negotiated in other unrelated transactions with the selling OEM or other OEMs. However, aviation counsel can add value in serving their clients by using their prior experiences to negotiate appropriate terms in the current deal.

    If a customer alleges material breaches by or makes serious litigious claims against the OEM, most OEM general counsel or his/her inside litigation counsel step in and try to reach an accommodation or, if necessary, circle the wagons to protect the OEM’s interests.

    OWNERSHIP PLANNING

    Under the Tax Cuts and Jobs Act of 2017, buyers of new aircraft, like used aircraft buyers, may use 100 percent bonus depreciation if the aircraft buyer qualifies for the tax benefit. Planning for ownership is critical to successful tax structuring. For more, read AINsight: 100% Depreciation and Aircraft Personal Use and AINsight: Maximize Aircraft Bonus Depreciation in 2019.

    A purchaser of a new aircraft can potentially obtain a financing benefit that does not apply to used aircraft. Lenders and lessors often agree to fund installment payments to the OEM as the OEM invoices the customer during construction and upon delivery of the aircraft. In addition, these lenders or lessors are often willing to convert the installment payment arrangement into a long-term loan or lease. Either financing or leasing provides substantial benefits to the parties but requires some additional effort to negotiate the agreements. For more, read  AINsight: Should You Finance or Lease a Bizjet?.

    Business aviation insurance brokers not only place appropriate insurance coverage but also can negotiate effectively with aviation underwriters. Purchasers of used and new aircraft generally understand that insurance is a crucial piece of protecting themselves from liability and property damage. However, they may not fully appreciate that a limited liability company (LLC) that buys the aircraft may not provide the LLC owner with the anticipated liability protection. For more, read AINsight: Piercing the Aircraft LLC Veil.

    Operations of private aircraft under Part 91 (private use) or Part 135 (charter use) in the U.S. demand compliance with the applicable regulations by owners and operators of all aircraft. For example, owners of all aircraft must keep their aircraft in the condition required by the applicable regulations for flight operations, not conduct illegal charter operations, and meet technology requirements, including ADS-B Out. Importantly, the FAAis looking for violators of the regulations, in part as described in AINsight: FAA Actively Pursues Illegal Flight Ops.

    Although purchase transactions of new and used aircraft share certain similar elements, they differ in significant respects. Assisted by knowledgeable professionals, a purchaser can and should address business, tax, financing/leasing, risk management, and regulatory issues as part of each deal. A reasonable and pragmatic approach to these transactions should foster amicable negotiations and ultimately produce the right travel solution for the purchaser.

    This article was originally published by AINonline on May 9, 2019.

  • Tracey Cheek posted an article
    AINsight: Maximize Aircraft Bonus Depreciation in 2019 see more

    NAFA member, David G. Mayer, Partner with Shackelford, Bowen, McKinley & Norton, LLP, discusses several aspects of aircraft depreciation including ways to qualify for bonus depreciation.

    Although the total depreciation taken under the straight-line and MACRS depreciation methods is the same, acceleration of depreciation under MACRS increases the time value of the tax benefits of MACRS compared to the slower straight-line method. Consequently, a tax advisor can help evaluate system and method that maximizes depreciation arising out of a taxpayer’s unique circumstances.

    Taxpayers must comply with the MACRS requirements for an aircraft to be eligible for bonus depreciation. Under the Tax Cuts and Jobs Act of 2017, bonus depreciation applies to new and, for the first time, preowned aircraft acquired and placed into service after Sept. 27, 2017, and before Jan. 1, 2023, with a phasedown of 100 percent depreciation starting in 2027. Importantly, to depreciate a preowned aircraft, the taxpayer must not have used the aircraft before purchasing it.

    QUALIFIED BUSINESS USE

    The IRC establishes qualifications for, and limitations on, deducting depreciation under MACRS and, by extension, bonus depreciation. MACRS requires that an aircraft must be used in a trade or business or for the production of income. A taxpayer must also “predominantly” operate the aircraft for “qualified business use” (QBU). In other words, QBU generally means the aircraft operates in connection with the taxpayer’s business enterprise conducted regularly and continuously for income or profit. Predominant use generally refers to 50 percent or more of total aircraft use per tax year.

    In part to guard against taxpayer abuse of depreciation deductions, the IRC has placed aircraft in a special category called “listed property” under IRC Section 280F. In general, listed property that a taxpayer does not use more than 50 percent for business will not qualify for MACRS or bonus depreciation. Instead, such property must be depreciated under the slower ADS using the straight-line method. In relation to depreciation, the failure to comply with MACRS may arise out of excessive personal use under the listed property rules and MACRSrequirements discussed above.

    However, in certain circumstances, an aircraft may be eligible for bonus depreciation if the taxpayer can demonstrate 25 percent business use. Once the 25 percent threshold is met, this special rule in IRC section 280F allows a taxpayer to add in other activity that the rule initially excludes from the QBU test. The effect of the add back is to boost the business use above the basic 50 percent requirement. It is important to prepare contemporaneous and detailed records that support all aspects of QBU on the assumption that the IRS will ask for the records.

    IRC Section 274 describes various types of personal use of aircraft. Often, personal use refers to the use of the aircraft for entertainment, amusement, or recreation such as parties, golf outings, family vacations, and sporting events. But it can also mean personal use of an aircraft for another reason: non-entertainment such as travel of an aircraft passenger for business unrelated to the business activities of the taxpaying entity that owns the aircraft.

    If an aircraft is used for entertainment use, the IRC has a special provision that minimizes the impact of personal use on bonus depreciation. For purposes of depreciation, the provision allows a taxpayer to elect the straight-line calculation of the disallowed deductions attributable to entertainment use. The provision permits a taxpayer to claim bonus depreciation in the acquisition year and, concurrently, elect separately to calculate an IRC Section 274 “entertainment disallowance” using the straight-line method.

    This election allows the taxpayer to deduct more depreciation in the year of acquisition than it otherwise would without the special IRC section 274 rule. This area deserves planning attention as it might, if structured correctly, provide a taxpayer with an increase in after-tax value and spur the taxpayer to establish an entertainment travel policy that applies this provision.

    COMPLIANCE: RECAPTURE INCOME

    My clients often ask whether they can claim bonus depreciation in the acquisition year by satisfying the QBU and other MACRS eligibility requirements in that year and keep bonus depreciation if they do not satisfy the QBU and other MACRS eligibility requirements after the acquisition year. In this scenario, the answer is no. And the consequence might be very expensive for the taxpayer because the Internal Revenue Service (IRS) can use a “recapture” provision.

    By doing so, the IRS causes the taxpayer to recognize income for the excess depreciation taken over the allowable straight-line method as calculated through the year of recapture. After that, the aircraft remains on straight-line and cannot return to MACRS. At a minimum, the taxpayer should track and record the QBU and other MACRS eligibility requirements throughout the ADS recovery period and, to be on the safe side, as long as the taxpayer owns the aircraft.

    Once a taxpayer qualifies for MACRS and bonus depreciation, the taxpayer will still encounter such other limitations as the passive activity loss limitations, the excess business loss limitations, and the hobby-loss rules.

    Prospective purchasers of aircraft seem universally interested in 100 percent bonus depreciation, but, as a taxpayer, the purchaser should not assume either that the aircraft will be eligible for bonus depreciation or that bonus depreciation will offer the optimal tax and economic solution. Still, by planning ahead of a purchase and involving specialized aircraft tax advisors, a purchaser should be able to identify the appropriate type of depreciation to maximize the reduction in its taxable income and lower its after-tax cost of capital. It certainly seems worth looking closely at bonus depreciation as it is easy to appreciate the significant value it might provide in an overall tax strategy.

    If you plan to purchase a private aircraft in the U.S. this year, developing and executing an appropriate tax strategy before you enter into a letter of intent or contract to purchase the aircraft enhances the likelihood that you will be able to take 100 percent depreciation (bonus depreciation). This strategy should incorporate your projected business revenues, intended aircraft use, and unique attributes as a business taxpayer relative to taking depreciation deductions.

    Depreciation is an allowance Congress enacted to encourage businesses to purchase capital equipment and other tangible personal property such as private aircraft. Depreciation allows business taxpayers to claim an annual tax deduction to recover the aircraft cost or other basis (adjusted cost) of the property for its wear and tear, deterioration, or obsolescence. A taxpayer usually deducts depreciation over a certain number of years called the “recovery period.”

    STRAIGHT-LINE, MACRS, AND BONUS DEPRECIATION

    Perhaps the best-known depreciation method is straight-line under the Alternative Depreciation System (ADS). This method allows the taxpayer to deduct roughly equal parts of the aircraft cost or other basis over the applicable recovery period. The recovery period depends on the predominant use of the aircraft. As a rule of thumb, the recovery period is six years for FAR Part 91 aircraft (private use) and 12 years for FAR Part 135 aircraft (commercial use such as chartering or carrying freight).

    The Modified Accelerated Cost Recovery System (MACRS) is another way to depreciate aircraft. The Internal Revenue Code (IRC) sets forth specific requirements that a taxpayer must meet to qualify to use this accelerated depreciation method. MACRS allows a taxpayer to write-off its aircraft in five years for FAR Part 91 (private use) aircraft and seven years for FAR Part 135 aircraft (commercial use). A taxpayer takes depreciation in the early years of the recovery period relative to approximately equal parts under the straight-line method.

    This article was originally published by David G. Mayer in AINonline on March 8, 2019.

     

  • Tracey Cheek posted an article
    AINsight: Maximize Aircraft Bonus Depreciation in 2019 see more

    NAFA member, David G. Mayer, partner with Shackelford, Bowen, McKinley & Norton, discusses how bonus depreciation has its appeal, but it might not be best for a taxpayer's particular set of circumstances.

    If you plan to purchase a private aircraft in the U.S. this year, developing and executing an appropriate tax strategy before you enter into a letter of intent or contract to purchase the aircraft enhances the likelihood that you will be able to take 100 percent depreciation (bonus depreciation). This strategy should incorporate your projected business revenues, intended aircraft use, and unique attributes as a business taxpayer relative to taking depreciation deductions.

    Depreciation is an allowance Congress enacted to encourage businesses to purchase capital equipment and other tangible personal property such as private aircraft. Depreciation allows business taxpayers to claim an annual tax deduction to recover the aircraft cost or other basis (adjusted cost) of the property for its wear and tear, deterioration, or obsolescence. A taxpayer usually deducts depreciation over a certain number of years called the “recovery period.”

    STRAIGHT-LINE, MACRS, AND BONUS DEPRECIATION

    Perhaps the best-known depreciation method is straight-line under the Alternative Depreciation System (ADS). This method allows the taxpayer to deduct roughly equal parts of the aircraft cost or other basis over the applicable recovery period. The recovery period depends on the predominant use of the aircraft. As a rule of thumb, the recovery period is six years for FAR Part 91 aircraft (private use) and 12 years for FAR Part 135 aircraft (commercial use such as chartering or carrying freight).

    The Modified Accelerated Cost Recovery System (MACRS) is another way to depreciate aircraft. The Internal Revenue Code (IRC) sets forth specific requirements that a taxpayer must meet to qualify to use this accelerated depreciation method. MACRS allows a taxpayer to write-off its aircraft in five years for FAR Part 91 (private use) aircraft and seven years for FAR Part 135 aircraft (commercial use). A taxpayer takes depreciation in the early years of the recovery period relative to approximately equal parts under the straight-line method.

    Although the total depreciation taken under the straight-line and MACRS depreciation methods is the same, acceleration of depreciation under MACRS increases the time value of the tax benefits of MACRS compared to the slower straight-line method. Consequently, a tax advisor can help evaluate system and method that maximizes depreciation arising out of a taxpayer’s unique circumstances.

    Taxpayers must comply with the MACRS requirements for an aircraft to be eligible for bonus depreciation. Under the Tax Cuts and Jobs Act of 2017, bonus depreciation applies to new and, for the first time, preowned aircraft acquired and placed into service after Sept. 27, 2017, and before Jan. 1, 2023, with a phasedown of 100 percent depreciation starting in 2027. Importantly, to depreciate a preowned aircraft, the taxpayer must not have used the aircraft before purchasing it.

    QUALIFIED BUSINESS USE

    The IRC establishes qualifications for, and limitations on, deducting depreciation under MACRS and, by extension, bonus depreciation. MACRS requires that an aircraft must be used in a trade or business or for the production of income. A taxpayer must also “predominantly” operate the aircraft for “qualified business use” (QBU). In other words, QBU generally means the aircraft operates in connection with the taxpayer’s business enterprise conducted regularly and continuously for income or profit. Predominant use generally refers to 50 percent or more of total aircraft use per tax year.

    In part to guard against taxpayer abuse of depreciation deductions, the IRC has placed aircraft in a special category called “listed property” under IRC Section 280F. In general, listed property that a taxpayer does not use more than 50 percent for business will not qualify for MACRS or bonus depreciation. Instead, such property must be depreciated under the slower ADS using the straight-line method. In relation to depreciation, the failure to comply with MACRS may arise out of excessive personal use under the listed property rules and MACRS requirements discussed above.

    However, in certain circumstances, an aircraft may be eligible for bonus depreciation if the taxpayer can demonstrate 25 percent business use. Once the 25 percent threshold is met, this special rule in IRC section 280F allows a taxpayer to add in other activity that the rule initially excludes from the QBU test. The effect of the add back is to boost the business use above the basic 50 percent requirement. It is important to prepare contemporaneous and detailed records that support all aspects of QBU on the assumption that the IRS will ask for the records.

    IRC Section 274 describes various types of personal use of aircraft. Often, personal use refers to the use of the aircraft for entertainment, amusement, or recreation such as parties, golf outings, family vacations, and sporting events. But it can also mean personal use of an aircraft for another reason: non-entertainment such as travel of an aircraft passenger for business unrelated to the business activities of the taxpaying entity that owns the aircraft.

    If an aircraft is used for entertainment use, the IRC has a special provision that minimizes the impact of personal use on bonus depreciation. For purposes of depreciation, the provision allows a taxpayer to elect the straight-line calculation of the disallowed deductions attributable to entertainment use. The provision permits a taxpayer to claim bonus depreciation in the acquisition year and, concurrently, elect separately to calculate an IRC Section 274 “entertainment disallowance” using the straight-line method.

    This election allows the taxpayer to deduct more depreciation in the year of acquisition than it otherwise would without the special IRC section 274 rule. This area deserves planning attention as it might, if structured correctly, provide a taxpayer with an increase in after-tax value and spur the taxpayer to establish an entertainment travel policy that applies this provision.

    COMPLIANCE: RECAPTURE INCOME

    My clients often ask whether they can claim bonus depreciation in the acquisition year by satisfying the QBU and other MACRS eligibility requirements in that year and keep bonus depreciation if they do not satisfy the QBU and other MACRS eligibility requirements after the acquisition year. In this scenario, the answer is no. And the consequence might be very expensive for the taxpayer because the Internal Revenue Service (IRS) can use a “recapture” provision.

    By doing so, the IRS causes the taxpayer to recognize income for the excess depreciation taken over the allowable straight-line method as calculated through the year of recapture. After that, the aircraft remains on straight-line and cannot return to MACRS. At a minimum, the taxpayer should track and record the QBU and other MACRS eligibility requirements throughout the ADS recovery period and, to be on the safe side, as long as the taxpayer owns the aircraft.

    Once a taxpayer qualifies for MACRS and bonus depreciation, the taxpayer will still encounter such other limitations as the passive activity loss limitations, the excess business loss limitations, and the hobby-loss rules.

    Prospective purchasers of aircraft seem universally interested in 100 percent bonus depreciation, but, as a taxpayer, the purchaser should not assume either that the aircraft will be eligible for bonus depreciation or that bonus depreciation will offer the optimal tax and economic solution. Still, by planning ahead of a purchase and involving specialized aircraft tax advisors, a purchaser should be able to identify the appropriate type of depreciation to maximize the reduction in its taxable income and lower its after-tax cost of capital. It certainly seems worth looking closely at bonus depreciation as it is easy to appreciate the significant value it might provide in an overall tax strategy.

    This article was originally published by Shackelford, Bowen, McKinley & Norton on AINonline on March 8, 2019.

     

  • Tracey Cheek posted an article
    AINsight Blog: Tax Reform a Deal Changer for Bizav see more

    NAFA member, David G. Mayer, Partner at Shackelford Law, discusses the Tax Cuts and Jobs Act of 2017.

    If the Tax Cuts and Jobs Act of 2017, H.R.1, aimed to simplify federal taxes in the U.S., it missed the mark for business aviation. However, it did include significant tax benefits and other changes worth considering before a prospective business/taxpayer enters into an aircraft purchase, sale, lease, or management arrangement. Changes include full expensing of aircraft cost until 2023, repeal of like-kind exchanges, an exemption of aircraft management fees from federal excise taxes (FET) and continuing incentives for tax leasing.

    H.R.1 should boost new and preowned aircraft acquisitions and sales because it offers buyers immediate cash savings on purchases of aircraft. It does so by increasing “bonus depreciation” on business aircraft purchases from 50 percent to 100 percent starting Sept. 27, 2017, and ending in 2023. After that, it phases down 20 percent per year to zero.

    A business can, therefore, “fully expense” the aircraft cost in the year the business places the aircraft in service in its “trade or business,” meaning it must use the aircraft for more than 50 percent business use. Previously, bonus depreciation applied only to new aircraft, but H.R.1 extends bonus depreciation to preowned aircraft. If the business does not use the aircraft in its trade or business, this benefit does not apply.

    The cash value of full expensing helps offset the disappointing repeal of IRS section 1031 like-kind exchanges. To illustrate, assume a business purchases a preowned, “replacement aircraft” for $5 million in 2018 and sells its fully depreciated, old, “relinquished aircraft,” for $4 million that same year. The business receives $4 million in ordinary income from the sale of the relinquished aircraft and fully expenses the $5 million purchase price of the replacement aircraft.

    At the new corporate tax rate under H.R.1 of 21 percent, down from a previous 35 percent maximum, the business saves $840,000 in taxes on its $4 million sale. Before H.R.1, it would have deferred the taxable income under IRC section 1031 rather than achieve immediate tax savings. Importantly, as bonus depreciation phases down, income taxes will likely increase on proceeds of aircraft sales that a like-kind exchange could otherwise have continued to defer.

    In a change that provides some relief for business aviation, H.R.1 seems to protect management companies and their customers from FET on “aircraft management services.” This new term refers to a broad range of flight, administrative, and support services provided by management companies to aircraft owners and lessees.

    The key to structuring non-FET management arrangements appears to be simple: only aircraft owners and certain lessees may pay for flights of their managed (owned or leased) aircraft, even if they are not on the flight. This rule should ease the concern about IRS imposition of FET and provide a reliable basis for structuring management and leasing transactions.

    One key feature of H.R.1 arises from what it does not include. H.R.1 omits any reference to “possession, command, and control” (PCC) of aircraft, its controversial Chief Counsel opinion in 2012. There, it sanctioned the imposition of FET on management company fees largely because it found that the management companies exercised PCC.

    The absence of that factor in H.R.1 should insulate owners and certain lessees from IRS intrusion based on specious PCC arguments. Nevertheless, owners, lessees, and other operators should scrutinize existing and new aircraft lease and management documentation to align the provisions closely to applicable provisions in H.R.1.

    Management companies beware: H.R.1 does not change the imposition of FET on parties engaged in “transportation by air” under IRS Section 4261 for commercial operations/charter. Further, H.R.1 does not alleviate the existing ambiguity in categorizing private and commercial operations caused, in part, by the IRS’s persistent disregard of FAR Parts 91 and 135.

    Stated differently, the FAR and IRS apply different standards to identify private and commercial flights. Still, this disconnect should not interfere with the practical applications of H.R.1 or the FARs.

    Finally, H.R.1 alters the tax dynamics for leasing. Businesses already use leases, as lessees, to shift residual value risk to owner-lessors and achieve favorable pricing. Although higher pre-H.R.1 tax rates encouraged tax leasing, H.R.1 should nonetheless support tax leasing by lessees that lack a sufficient tax liability to use full benefit of 100 percent bonus depreciation, loan interest, and state income tax deductions.

    A lessor can help reduce its lessee’s after-tax cost of capital when using the tax benefits available to it on acquiring aircraft. By purchasing an aircraft, a lessor with an adequate tax appetite should use tax benefits efficiently and share its reduced tax burden by lowering rents payable by its lessee.

    H.R.1 should help lift the volume of business aviation transactions, but businesses must properly structure deals to make the most of it. As with any tax or legal matter, always consult your own expert to properly address your personal situation.

    David G. Mayer is a partner in the global Aviation Practice Group at the Shackelford Law Firm in Dallas, which handles worldwide private aircraft matters, including regulatory compliance, tax planning, purchases, sales, leasing and financing, risk management, insurance, aircraft operations, hangar leasing and aircraft renovations. Mayer frequently represents high-wealth individuals and other aircraft owners, flight departments, lessees, borrowers, operators, sellers, purchasers, and managers, as well as lessors and lenders. He can be contacted at dmayer@shackelfordlaw.net, via LinkedIn or by telephone at (214) 780-1306.

    This article was originally published on AINonlnie on January 11, 2018.