NATA and NBAA have filed friends of the court briefs backing Bombardier’s appeal to the U.S. Supreme Court over the IRS’s application of federal transportation excise taxes (FETs) to aircraft management fees assessed by Flexjet, a fractional operation the airframer previously owned.
Last month, Bombardier asked the U.S. Supreme Court to review the case after the U.S. Court of Appeals for the Fifth Circuit denied Bombardier’s request for a full-court, or en banc, review of its case against the IRS. A three-judge panel at the Fifth Circuit had previously agreed with a lower court ruling that the IRS properly taxed fractional operation management fees as commercial air transportation activities.
“The legal landscape on this issue is a jumble,” NATA told the nation’s highest court in an amicus brief filed on March 20, asking the Supreme Court to resolve what it says has been the IRS’s inconsistent application of the tax assessment. “Because of the IRS’s disparate application of the tax, some companies have been burdened with the 7.5 percent commercial excise tax on aircraft management services, while other management companies providing the same services and operating in direct competition are not required to pay the tax,” the association said.
“The IRS cannot hold a collecting agent secondarily liable for an excise tax where the obligation to collect the tax is speculative and not precise,” NBAA added in its own amicus brief filing. “Likewise, the IRS cannot require one company to collect an excise tax, while not imposing the same obligation on the company’s direct competitor.”
NATA retraced a history in which Bombardier received a refund for commercial air transportation taxes collected in the 1990s, an IRS determination that Bombardier had acted correctly in not assessing the taxes from 1998 to 2005 (based on the refunds) and then an assessment for taxes not collected in 2006.
The Fifth Circuit had based its decision on a 2004 technical advise memorandum, even though it later determined that the monthly management fees were not subject to the FET, NBAA pointed out. “The narrow standard for determining what constitutes clear guidance in the Fifth Circuit’s opinion conflicts with the Supreme Court’s [past rulings] and creates significant challenges for deputy tax collectors in determining whether there is an obligation to collect a tax,” NBAA said.
Both associations also pointed out Flexjet competitor NetJets is not required to collect the tax. The IRS previously issued contrary advice to NetJets in a 1992 technical advice memorandum. “The Fifth Circuit, however, declined to apply the duty of consistency in this case, concluding that the IRS’s advice to NetJets did not amount to a sufficient ‘ruling’ to invoke the IRS’s duty of consistency,” NBAA noted. “This narrow interpretation greatly diminishes the IRS's duty of consistency. The Fifth Circuit’s opinion condones unfair competition among direct competitors and undermines tax administration generally.”
Supreme Court review of the case is necessary to provide certainty to thousands of business aviation companies and customers “and remedy the grave economic consequences of the IRS’s arbitrary and inconsistent application of the excise tax,” NATA added.