Tax Type
Retail Sales and Use Tax
Description
Aircraft; Scheduled Air Service
Topic
Taxability of Persons and Transactions
Date Issued
06-29-1992
June 29, 1992
Re: Request for Ruling: Sales and Use Tax
Dear*****************
This will reply to your letter of April 15, 1992 in which you request a ruling as to the sales and use tax application to********************* (the Taxpayer).
FACTS
The Taxpayer is the owner of an aircraft which is being used to provide scheduled air service. The Taxpayer is requesting a ruling as to the sales and use tax application to an aircraft for strict use in scheduled air service and also to an aircraft used in providing scheduled air service and also occasionally in charter service. Taxpayer is also requesting the tax application to an aircraft leased by a scheduled air carrier.
RULING
In addressing your concerns with regard to sales and use tax application to aircraft, we must look at both the retail sales and use tax and the aircraft sales and use tax.
Aircraft Sales and Use Tax
Va. Code §58.1-1505 provides an exemption from the aircraft sales and use tax for, "any airline operating in intrastate, interstate or foreign commerce as a common carrier providing scheduled air service on a continuing basis to one or more Virginia airports." Va. Code §58.1-1501 defines "scheduled air service" as, "service provided by a single air carrier consisting of regularly scheduled flights to one or more Virginia airports at least five days per week." Based on information received by this office from the Virginia Department of Aviation and the Federal Aviation Administration, the Taxpayer is classified as a common carrier providing scheduled air service, therefore its aircraft qualify for the exemption under Va. Code §58.1-1505 to the extent used in rendering common carrier service.
You are also correct in your assumption that an aircraft used for charter is subject to licensing with the Virginia Department of Aviation and subject to the aircraft sales and use tax as it is not used in the rendition of common carrier service.
Virginia Regulation (VR) 630-11-1505 sets forth the exemptions available for aircraft and provides, "aircraft owned and used by an airline only in its operations as a common carrier... is exempt from the Virginia aircraft sales and use tax." Subsection (4)(b) of this regulation addresses the tax treatment of aircraft used in a dual capacity and provides for the following:
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- For purposes of this exemption, the sale price or value of an aircraft owned by an airline and used in non-exempt intrastate operations as a contract carrier as well as exempt operations will be apportioned on the basis of such use.
- For purposes of this exemption, the sale price or value of an aircraft owned by an airline and used in non-exempt intrastate operations as a contract carrier as well as exempt operations will be apportioned on the basis of such use.
However, infrequent, isolated occurrences of charter flights by a common carrier, that are de minimis in nature, generally will not be considered sufficient to require the payment of the tax. The determination whether taxable usage is de minimis must be made on a case by case basis after examination of the actual usage of the aircraft.
I must point out that based upon the existing law and regulations, the department has no authority to allow tax to be collected on the charter fees in lieu of apportioning the tax.
As a general rule, the owner of the aircraft is subject to the aircraft sales and use tax on the purchase price of the aircraft even if there is a subsequent lease to a common carrier. To qualify for the exemption: 1) the owner must be a dealer as defined in VR 630-11-1501(3), and 2) the lease to the common carrier must be deemed a sale under VR 630-11-1501(6), copy enclosed.
Retail Sales and Use Tax
Va. Code §58.1-608(A)(3)(f) provides a retail sales and use tax exemption for the following:
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- Tangible personal property sold or leased to an airline operating in intrastate, interstate or foreign commerce as a common carrier providing schedule air service on a continuing basis to one or more Virginia airports for use or consumption by such airline directly in the rendition of its common carrier service.
- Tangible personal property sold or leased to an airline operating in intrastate, interstate or foreign commerce as a common carrier providing schedule air service on a continuing basis to one or more Virginia airports for use or consumption by such airline directly in the rendition of its common carrier service.
I trust the above will answer any questions you may have. If you should have any further questions, please feel free to contact the department.
Sincerely,
W. H. Forst
Tax Commissioner
TPD/6103K
Rulings of the Tax Commissioner