Compliance Strategies: Personal Entertainment Use Flights Final Regulations November 21, Housekeeping Issues 11/21/2013

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1 Compliance Strategies: Personal Entertainment Use Flights Final Regulations November 21, 2013 Sue Folkringa, CPA, MBA Commercial Pilot, AS/MEL, Instrument Airplane Housekeeping Issues 2 Wolcott Aviation Seminars, LLC If you prefer to listen via phone, please dial: Access code Copyright 2013 Wolcott Aviation Seminars 1

2 Today s Webinar: Today s webinar length will be approximately 1 hour in length Optional section to introduce a new product offering from Flight Tax Systems, LLC If you need assistance with accessing the webinar or with the course materials (866) Please Ask Questions During the Webinar: 5 We Get Asked Many Questions During the Webinar.. We try to answer all questions asked during the webinar If your question has not been answered by the end of the webinar, please don t disconnect when the webinar ends We may ask you to contact us after the webinar if your question is too complex to answer using the chat feature 6 Copyright 2013 Wolcott Aviation Seminars 2

3 Wolcott & Associates, PA: What We Do We are an aviation dedicated firm of CPAs and accounting professionals Our clients are aircraft owners and operators, pilots, and owner pilots We specialize in the preparation of aircraft income tax returns, state tax matters, IRS audits, structuring aircraft ownership, and related aviation tax and financial matters We identify, protect and preserve tax deductions for your aircraft! 7 Reminders: You must be present for the entire program for CLE, CPE or an Attendance Certificate. Polls will be provided during the program to confirm attendance. Complete all polls for attendance credit. National Association of State Boards of Accountancy (NASBA) Group Internet Based Programs sponsor ID Florida Bar Association Continuing Legal Education Accreditation Provider # Reminders: 9 Copyright 2013 Wolcott Aviation Seminars 3

4 Today s Webinar: Webinar will be approximately 60 minutes in length Course materials have been ed to you but in case you do not have them: cpa.com Resource Library ID = Call our office if you need assistance (866) Resource Lookup 11 Upcoming Webinars December 12, 2013 Florida Sales Tax Issues Aircraft Owners and Operators December 17, 2013 Business Use Individual Owned Aircraft 12 Copyright 2013 Wolcott Aviation Seminars 4

5 Following the webinar we invite you to join us for a 15 minute webinar on our aviation tax software called Flight Tax Systems. Flight Tax Systems software will track and calculate the tax reporting requirements explained during this webinar. Attendance is entirely optional. 13 Compliance Strategies: Personal Entertainment Use Flights Final Regulations November 21, 2013 Jed R. Wolcott, MBA Certified Public Accountant Entertainment Disallowance Final Regs. Rules For Tax Years Beginning After August 1, What has changed? Seat mile, Seat hour and Flight by flight reporting Developing strategies to minimize the tax consequences Review IRS documentation standards 15 Copyright 2013 Wolcott Aviation Seminars 5

6 There are Two Sets of IRS Regulations for Non business Use of Company Aircraft SIFL imputed income for employee & guests Company Entertainment Flight Cost Disallowance 16 Don t Overlook SIFL It s Alive and Well! Reporting the fringe benefit of employee use of company aircraft for non business flights is still required Standard Industry Fare Level (SIFL) (imputed method) Charter rate method (imputed method) Reimbursement method (actual payment, but be careful of FAA restrictions) Failure to report the employee fringe benefit can result in Retroactive taxing to the employee, including penalty and interest Could jeopardize company deductions for business use of the aircraft 17 SIFL & Cost Disallowance Example Mid size jet, purchase price $10 million 400 flight hours per year 25% entertainment use Annual fixed costs $ 760,644 Annual variable costs 463,020 Depreciation 1 st year 20% MACRS 2,000,000 Total $3,223,644 SIFL Imputed income control rates $ 103, Copyright 2013 Wolcott Aviation Seminars 6

7 C corporation + Executive s Tax Consequences Executive Reports SIFL Reports Cost Disallowance Operating Company with Aircraft $103,422 SIFL Imputed Income x 35% Personal Tax Rate $36,198 Add l Income Tax $3,223,644 Total Aircraft Costs x 25% Entertainment Use % 805,911 Costs Disallowed 103,422 Reduce by SIFL 702,489 Net Costs Disallowed x 38% Corporation Tax Rate $266,946 Add l Tax from Entertainment Use 19 Pass thru Entity + Owner Tax Consequence Owner Reports SIFL Reports Cost Disallowance Operating Company with Aircraft $103,422 SIFL Imputed Income 702,489 K 1 Reports Increased Taxable Income 805,911 Net Add l Taxable Income x 35% Personal Tax Rate $282,069 Add l Pers Tax from SIFL and Entertainment Use of Aircraft $3,223,644 Total Aircraft Costs x 25% Entertainment Use 805,911 Costs Disallowed 103,422 Reduced by SIFL 702,489 Net Costs Disallowed 20 Topics Addressed in Final Regulations TOPIC Confirmed Additional Discussion Presence of Specified Individual creates entertainment use Deadhead flights Calculation of entertainment disallowance Additional rules for interest expense SL depreciation follows Proposed Regulations Basis attributable to disallowed depreciation Charter rate safe harbor SIFL reporting to obtain reduction of cost disallowance Travel on regularly scheduled airlines flights Aggregation of aircraft Primary Purpose Test is no longer valid Bona Fide Security Plans Adequate and Full Consideration Exception Charity flights 21 Copyright 2013 Wolcott Aviation Seminars 7

8 Four Major Confirmations in the Final Regulations Primary purpose reporting for company owned aircraft is no longer permissible Straight line depreciation election for disallowance purposes confirmed Interest expense must be included as a deduction is confirmed; interest tracing rules apply Inclusion of deadhead flights in the calculation of the entertainment disallowance is now a requirement 22 Specified Individual Final regulations affirm that an entertainment flight requires the presence of a Specified Individual Regs. define the Specified Individual by reference to section 16(a) of the Securities Exchange Act of 1934 Not limited to public companies Includes every officer, director and beneficial owner of more than 10% of any class of any equity security 1 Slightly different from the definition of Control Employee from SIFL regulations, but is effectively the same 1 IRC 274 9(b)(i) Specified Individual (cont.) Includes family members even if the employee is not on the plane Includes company president, vice president, secretary and treasurer Also principal financial officer, principal accounting officer or controller, vice president in charge of a principal business unit, division or function, and any officer that performs a policy making function Note that if there is no Specified Individual associated with a flight, there is no entertainment disallowance, even if the passengers engage in entertainment activities 24 Copyright 2013 Wolcott Aviation Seminars 8

9 Costs Subject To Disallowance Final Regs. state that all of the costs of the entertainment flights are subject to the disallowance, including Fixed costs Variable costs Costs indirectly connected to the flight Interest Depreciation The Final Regs. do not adopt a charter rate alternative to actual costs for calculating the disallowance (d)(1) Four Calculation Methods of Entertainment Disallowance Final regulations affirm the same four methods for allocation of costs associated for entertainment flights Occupied seat hours Occupied seat miles Flight by flight hours Flight by flight miles Taxpayer is allowed to use the calculation method that results in the lowest tax (i.e., the lowest percentage of disallowance Once the disallowance is calculated, reimbursements are subtracted from that amount 26 CALCULATING THE DISALLOWANCE Step 1: Analyze flights for entertainment passengers Step 2: Calculate entertainment cost limitation percentage for the year Step 3: Calculate straight line depreciation adjustment Step 4: Add direct operating costs and ownership costs and apply the disallowance percentage, add back the depreciation adjustment and the SIFL imputed income 27 Copyright 2013 Wolcott Aviation Seminars 9

10 CALCULATING THE DISALLOWANCE Step 1: Analyze flights for entertainment passengers Step 2: Calculate entertainment cost limitation percentage for the year Step 3: Calculate straight line depreciation adjustment Step 4: Add direct operating costs and ownership costs and apply the disallowance percentage, add back the depreciation adjustment and the SIFL imputed income 28 CALCULATING THE DISALLOWANCE Step 1: Analyze flights for entertainment passengers Step 2: Calculate entertainment cost limitation percentage for the year Step 3: Calculate straight line depreciation adjustment Step 4: Add direct operating costs and ownership costs and apply the disallowance percentage, add back the depreciation adjustment and the SIFL imputed income 29 CALCULATING THE DISALLOWANCE Step 1: Analyze flights for entertainment passengers Step 2: Calculate entertainment cost limitation percentage for the year Step 3: Calculate straight line depreciation adjustment Step 4: Add direct operating costs and ownership costs and apply the disallowance percentage, add back the depreciation adjustment and the SIFL imputed income 30 Copyright 2013 Wolcott Aviation Seminars 10

11 31% 50% Seating Capacity $ $ $ % $ Seat Method Flight-By-Flight Method Flights Only Exempt Non- Flt Statute Total Business Pers Non- Entertain Terminal Imputed Entertain Total Seat Entertain Total Seat Entertain Entertain Leg Date From To Flight Type Hrs Spouse and Control Subtotal Factor Subtotal Subtotal # Miles Pax Pax Ent Pax Pax Miles Miles Miles Charge Income Reimbursed Seat Miles Miles Seat Hours Hours Miles Hours Dependents Guests Flight 1: Business Flights 1 1 7/1/08 STL MDW Business , /2/08 MDW STL Business , Flight 2: Entertainment Flights 2 1 7/10/08 STL ORL Entertainment Mile % ,496 3, /20/08 ORL STL Entertainment % ,347 2,520 3,496 3, Flight 3: Non-Entertainment Flights 3 1 8/1/08 STL AAO Other Business % /5/08 AAO STL Other Business % Flight 4: Mixed Business & Entertainment Flights, Multi-Leg Flights, With Spouses 4 1 9/10/08 STL DTW Mixed % , /11/08 DTW HPN Entertainment % ,523-1,952 1, a 9/14/08 HPN DTW Entertainment % b 9/14/08 DTW STL Business c 9/14/08 DTW STL Entertainment % ,196-1,790 1, Leg 3 Adjustment (895) (665) (1.50) Flight 5: Mixed Business & Entertainment Flights; With Customers /5/08 STL FTG Business , /8/08 FTG LAS Entertainment % ,750-3,786 3, /11/08 LAS FTG Entertainment % ,750-3,786 3, /11/08 FTG STL Business , Flight 6: Deadhead Leg on Multi-Leg Flight; 50% Seating Capacity Rule /18/08 STL PDK Mixed % ,904 3, /19/08 PDK HPN Deadhead ,526 1, /20/08 HPN STL Business , Flight 7: Foreign Travel /15/08 STL MBJ Mixed 3.6 1, % ,884-4,755 9, Foreign SIFL 1, /25/08 MBJ STL Mixed 3.6 1, % ,884-4,755 9, Foreign SIFL , Summary: All Other Flights Business , , , ,306 2,520 33, , , % 1.33% 14.00% 17.94% 17.88% 13.42% 14.91% 11/21/2013 SIFL & Cost Disallowance Worksheet FLIGHT INFORMATION SIFL CALCULATION COST DISALLOWANCE 31 Summary FLIGHT INFORMATION COST DISALLOWANCE Seat Method Flight-By-Flight Method Flt # Leg Date From To Flight Type Hrs Statute Total Business Pers Non- Entertain Entertain Total Seat Entertain Total Seat Entertain Miles Pax Pax Ent Pax Pax Seat Miles Miles Seat Hours Hours Miles Entertain Hours Summary: All Other Flights Business , , , , , , % 1.31% 13.77% 17.58% 17.51% 12.37% 14.01% 32 Calculates entertainment cost disallowance under all four methods. Permits taxpayer to select the method that has the best results. 33 Copyright 2013 Wolcott Aviation Seminars 11

12 What Is Entertainment? Entertainment, Amusement or Recreation Entertainment means any activity which is generally considered to constitute entertainment, amusement or recreation: Treas. Reg (b)(1) Entertainment use is an amusement or recreational activity, such as traveling to a sporting event or a vacation destination Notice An activity not directly related to or associated with the active conduct of a trade or business Examples of Entertainment IRS states attending nightclubs, cocktail lounges, theatres are examples of entertainment activities Country clubs, golf and athletic clubs, sporting events, hunting, fishing, and vacations are all entertainment activities Facts and circumstances may determine if an activity is entertainment; attending a theatrical performance would generally be entertainment, unless the taxpayer was a professional theater critic Entertainment is often described as a frame of mind passenger expects enjoyment after flight 35 Examples Of Non Entertainment: Attending to business that is not the business of the company that owns the aircraft Caution about flights to seek investments. These could be treated as investing expenses, subject to reporting on Schedule A Attending a meeting of the Board of Directors of an unrelated company Charitable flights, such as Angel Flights Routine personal activities 36 Copyright 2013 Wolcott Aviation Seminars 12

13 Examples Of Non Entertainment Routine Personal Activities Commuting flights Flights with investment advisor, attorney, accountant Flight to take child to boarding school or college Flights to visit employee s parents or relatives Flight to attend funeral Key is lack of entertainment, not routine nature of the activity 37 So What are Entertainment Flights? IRS regulations do not provide guidelines for distinguishing between entertainment and non entertainment flights Final regulations only state that the definition of entertainment is found at Treas. Reg (b)(1), offering archaic and unrealistic definitions and examples Taxpayers must exercise judgment in determining activities that constitute entertainment and those that do not. Best Rule of Thumb is the attitude of the passenger. If there is an expectation of entertainment when they exit the flight, the flight is likely to be subject to the disallowance 38 Deadhead Flight Rules Deadhead flights are flights with no passengers Deadhead flights must be treated as passenger flights for calculating OSH, OSM, or flight by flight passengers Passengers are ghosted and classified according to the previous or subsequent passengers for the flights with which they are associated If the deadhead is related to one occupied flight, the deadhead passenger count is easy to determine 39 Copyright 2013 Wolcott Aviation Seminars 13

14 Deadhead Flight Rules Leg 1 = Occupied Leg 4 Business Passengers B Deadhead return leg: Calculate using 4 business passengers A 40 Deadhead Flight Rules When the deadhead flight is related to two or more flights, it may be determined two different ways: The weighted average method calculates the passenger by OSM or OSH methods Flight by flight method uses the percentage of each type of passengers on occupied flights before and after the deadhead The IRS gives examples of each method, and neither method accurately calculates the deadhead passengers Any realistic approach is probably acceptable providing it is applied in a consistent manner 41 Deadhead flights IRS Example Flight By Flight Method Three legged flight Leg 1: 6 hours, A B, 12 pax, 8 business, 4 entertainment Leg 2: 4 hours, B C, deadhead (requires ghosted passengers) Leg 3: 2 hours, C A, 12 pax, 6 business, 6 entertainment Total 12 flight hours and 24 pax, 14 business, 10 entertainment A C 42 Copyright 2013 Wolcott Aviation Seminars 14

15 Deadhead Flights Flight by Flight Method Leg Total Business Entertainment (DH) Totals % 58.33% 41.67% 43 Multi leg Mixed Leg Flights (Open Jaw) Flights with a combination of business and entertainment legs plus a return leg The return leg may be pro rated according to the ratio of OSH, OSM, or flight by flight passengers on the other legs The entertainment cost of a multi leg trip is the total cost of the flights minus the cost of the flights that would have been taken without the entertainment segment or segments (IRS definition) 44 Open Jaw Flight IRS Example Three legged flight, one specified individual on each leg Leg 1: 2 hours business, A B Leg 2: 3 hours entertainment B C Leg 3: 4 hours return C A Total 9 flight hours Allocation Calculation 9 Total flight hours 4 Hours if trip was only business (A B +B A) 5 Entertainment hours Prorate 45 Copyright 2013 Wolcott Aviation Seminars 15

16 Interest Expense Rules Final reg. s make clear that interest expense is subject to the entertainment disallowance Final regulations provide two debt allocation rules to determine which interest expenses will be allocated to the disallowance: Interest is either secured by the aircraft, or Interest is properly allocated to the aircraft under Temp Reg T 46 Interest Secured By the Airplane Example: $10 million aircraft financed by $10 million bank loan The loan and the collateral are easily identified All of the interest on the $10 million loan will be included in interest costs, which are subject to the entertainment disallowance. Total interest expense for the year will be multiplied by the year s cost disallowance percentage to determine the interest expense disallowance 47 Interest Allocated to the Airplane Example: $10 million aircraft financed from $100 million company line of credit The loan and the collateral are not as easily identified, especially if the cash is run through the company bank account New rules state that interest allocated to an aircraft is also subject to the disallowance (IRS interest tracing rules T) This rule could inadvertently extend the disallowance percentage to another asset or a much larger debt account Interest tracing rules are complex; buyers should obtain guidance if purchasing an aircraft with a LOC 48 Copyright 2013 Wolcott Aviation Seminars 16

17 Cost Disallowance vs. Reimbursement Entertainment imputed income (SIFL) or reimbursement reduces the entertainment cost disallowance If entertainment imputed income (SIFL), or reimbursement equals the total cost of the flight, no disallowance If entertainment imputed income (SIFL), or reimbursement is less than the cost of the flight, disallow the difference Note: Reimbursement is subject to FET ( Costs includes operating costs, ownership costs, interest and depreciation) 49 Disallowance vs. Reimbursement (cont.) Calculated company entertainment disallowance: $100,000 Entertainment SIFL/Flight reimbursement From employee/passenger: (25,000) Net company disallowance: $75, Use of Straight Line Depreciation for Disallowed Depreciation The Final Regs. affirm that the taxpayer may use straightline depreciation for the disallowed portion of depreciation Disallowed depreciation is added back to the basis of the aircraft at disposition Even fully depreciated aircraft will have basis remaining to offset gain at sale if there was entertainment use (d)(3)(i) Special rules for aircraft used for entertainment 51 Copyright 2013 Wolcott Aviation Seminars 17

18 Deduction Limitation for Non Specified Individuals Requires Withholding by Employer and Reporting by Employee There is no entertainment cost disallowance for non specified individuals, such as employees or third party service providers To reduce the disallowance, the company must report as compensation to the passenger and report the cost on it s tax return (i.e., SIFL) Report the value of the flight on a W 2 for the employee Report the value of the flight on a 1099 for a non employee Compensation is subject to withholding 52 Aircraft Aggregation is Limited Final regs. affirm a company may aggregate aircraft of similar cost profiles to minimize cost disallowance: Same engine types Same number of engines Similar maximum take off weight Similar payload Similar passenger capacity Similar fuel consumption Similar depreciable basis Criteria is still very limiting 53 Adequate and Full Consideration Exception Does Not Apply to Cost Disallowance Adequate and Full Consideration exception 1 has raised debate regarding avoiding the disallowance under the following circumstances: Employee reimbursing the company at charter rates Use of a time share arrangement Employee dry leases the aircraft for entertainment flights Proponents believe use of one or more of the above fulfills the full and adequate consideration exception Per Final 274 Regs: The adequate and full consideration exception for bona fide transactions does not apply to the entertainment cost disallowance provisions. 1 Code Section 274(e) (8) Copyright 2013 Wolcott Aviation Seminars 18

19 Thank You Very Much! Jed R. Wolcott, MBA Certified Public Accountant Wolcott Aviation Seminars, LLC 5525 NW 15 th Avenue, Suite 203 Fort Lauderdale, Florida cpa.com 55 Flight Tax Systems, LLC Software for Aircraft Owners and Operators 56 Upcoming Webinar Events December 12, 2013 December 17, 2013 Florida Sales Tax Issues for Aircraft Owners and Operators Business Use Individual Owned Aircraft 57 Copyright 2013 Wolcott Aviation Seminars 19

20 Flight Tax Systems Software for Aircraft Owners & Operators Jed R. Wolcott, MBA Certified Public Accountant 58 FTS ENTERPRISE VERSION Full featured aviation software for complying with IRS reporting requirements All IRS federal tax features from the Standard Version; SIFL, Cost Disallowance, Primary Purpose reporting PLUS: Multiple owners/one aircraft Multiple aircraft/one owner Fully owned aircraft and fractional aircraft. Mix as required SEC reporting No aircraft weight restriction; handles reporting for BBJ size aircraft with ease State tax reporting Cost center reporting 59 FTS ENTERPRISE VERSION AIRCRAFT TAX SOFTWARE Fully compliant with IRS reporting requirements Prepares SIFL, Cost Disallowance, and Primary Purpose reports that are ready for you or your accountant to use to prepare the aircraft company or individual tax returns Fully annotated with links to the IRS tax code, regulations, and publications Cost center reporting allows you to assign aircraft costs to departments, divisions, or projects 60 Copyright 2013 Wolcott Aviation Seminars 20

21 FTS ENTERPRISE VERSION AIRCRAFT TAX SOFTWARE FTS Standard Version has features for the owner pilot and single pilot flight operations No date restrictions; input last year s flights as well as this year s flights Internet based software, meaning you can enter flight information anywhere you have Internet access Aviation accountants keep the software current and relevant. Updates and new features are added automatically 61 STATE TAX MODULES Reports for calculating sales and use taxes Reports for limiting ad valorem taxes States included in Enterprise Version: Florida California Texas Louisiana Georgia Mississippi Copyright 2013 Wolcott Aviation Seminars 21

22 64 65 REPORTS 66 Copyright 2013 Wolcott Aviation Seminars 22

23 SIFL Report SIFL Year to Date Summary Footnotes explain SIFL reporting rules 67 Entertainment Cost Disallowance Report Calculates entertainment cost disallowance under all four methods. Permits taxpayer to select the method that has the best results. 68 SEC Report SEC reporting for executive fringe benefits for proxy reporting. 69 Copyright 2013 Wolcott Aviation Seminars 23

24 Florida Mileage Apportionment Report Florida use % Used to reduce sales taxes on leasing to percentage of use in Florida. 70 California Interstate Commerce Report 71 IRS Auditor Report 72 Copyright 2013 Wolcott Aviation Seminars 24

25 General Flight Report Copyright 2013 Wolcott Aviation Seminars 25

26 76 COST, BILLING AND SUPPORT Subscription provides 12 months of program access Subscription buys unlimited use; no date controls Custom programming and reports available Aviation CPAs from our parent company provide 2 hours of free support. We take you through setup and flight recording. Additional support available Call to sign up! 77 Thank You Very Much! Jed R. Wolcott, MBA Certified Public Accountant Flight Tax Systems, LLC 5525 NW 15 th Avenue, Suite 203 Fort Lauderdale, Florida cpa.com jedw@aviation cpa.com 78 Copyright 2013 Wolcott Aviation Seminars 26