Energy tax exemption for commercial
aviation; flights to maintenance facilities,
training flights
June 2015
By decree of 23 January 20151 the BMF clarify their interpretation on energy
taxability of certain types of flights. Several judgements by the ECJ2 and the
BFH3 were preceding this decree.
Content of this newsletter
1. The BMF Statement
2. Basics
1. Taxability
2. Tax Exemption
3. Tax Declaration Obligation in Case of Tax Exemption
4. Tax Relief
5. Tax Rates
3. Abbreviations
4. Our Advice
5. Our Services
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BMF, Decree of 23 January 2015, III B 6 - V 8230/07/10005
ECJ, Judgement of 1 December 2011, C-79/10 „Systeme Helmholz GmbH“;
Judgement of 21 December 2011, C-250/10, „Haltergemeinschaft LBL GbR“
BFH, Judgements VII R 9/09, VII R 21/09, VII R 26/09, VII R 33/09, VII R 40/09,
VII R 29/12; VII R 9/13, etc.
www.crowehorwath-ffm.de
1. The BMF Statement
Energiesteuerpflichtig
Thereby the following uses of aircraft fuels4 tanked up in Germany shall
generally be treated as energy taxable from February 1, 2015 on:
■ Flights to instruct own crew members on other aircraft types,
■ Flights to train own crew members,
■ Flights for the purpose of demonstration and sales (e.g. at fairs or
airshows),
■ Flights to check aircrafts, if not performed by the manufacturer or
maintenance company,
■ Flights to or from maintenance facilities, except where performed by
the maintenance company itself, having a right to use the aircraft for
such flights and thereby using the energy products on its own account.
In dispute
It is highly controversial, whether the BMF licitly interpret the quoted judgements5, as in all cases companies were concerned that are considered
non-airlines companies6.
Energy tax exempted
On the other hand the BMF clarify, that non-airlines companies are under
certain circumstances entitled to use aircraft fuels free of energy tax for
intercompany flights and for so-called taxi flights. Hence, an air operator
certificate is no legal requirement for a mineral oil tax or energy tax exemption for commercial aviation.7
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5
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Aircraft petrol and aircraft turbine fuel (kerosene) according to § 27 (2) No. 1 EnergieStG
See footnote 2 and 3
As in § 20 (1) LuftVG
BFH, Judgement of 8 July 2014, VII R 9/13
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2.1 Basics - Taxability
Only fuels tanked up in Germany can be taxable.8
According to § 27 (2) No.1 EnergieStG aircraft fuels may be used free of
energy tax in aircrafts for aviation purposes. Exempted is the use for private
non-commercial aviation purposes.
“Aircraft fuels”
are aircraft petrol and kerosene.9
„Private non-commercial aviation purposes“
is the use of an aircraft by its owner, lessee, or by another person holding a
right of use for other purposes than:
1. commercial transportation of passengers or cargo by airline companies
or in a aviation sports device,
2. commercial services,
3. air rescue by air rescue services,
4. scientific research, and
5. official use by authorities.10
“Commercially”
acting is, who has the intention of making profits while acting on own risk
and responsibility.11
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9
10
11
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§ 1 (1) EnergieStG
§ 27 (2) No. 1 EnergieStG
§ 60 (4) EnergieStV
§ 60 (5) EnergieStV
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2.2 Basics - Tax Exemption
Aircraft fuels may be used energy tax free on aircrafts with a maximum
gross weight of more than 12 t without prior single permission (general
permission).12
For aircrafts with a maximum gross weight of no more than 12 t, a single
permission to use aircraft fuels free of energy tax can be applied for at the
HZA in charge (formal permission procedure).13 The application including
sufficient evidence (e.g. AOC, registration certificate, airworthiness certificate) is to be made for each aircraft individually.14
Where aircraft are regularly used for private non-commercial aviation purposes, the energy tax free purchase of aircraft fuels is prohibited. In these
cases, aircraft fuel is to be purchased including energy tax. A later energy
tax relief is possible by single application including substantiation of the use
for energy tax exempt purposes (see below “Tax Relief”).
2.3 Basics - Tax Declaration Obligation in Case of
Tax Exemption
Aircrafts that are energy tax exempted by general permission or formal
single permission, the use of aircraft fuel for non-exempted purposes has to
be declared within an energy tax declaration.
Declaration period, declaration due date, and tax payment due date are
determined by the local HZA in charge.15
HZA in charge is the one where the (aviation) company is established, or
in cases where the (aviation) company is established outside of Germany,
where the (aviation) company had its first energy taxable appearance in
Germany (place of first energy taxable aircraft fueling).16
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§ 24 (2) S. 1 EnergiestG in conj. with § 55 and Annex 1 No. 4.1 EnergieStV
§ 24 (2) S. 1 EnergiestG in conj. with § 52 (1) EnergieStV
§ 24 (2) S. 1 EnergiestG in conj. with § 52 (2) No. 4, (3) EnergieStV
BMF, Decree of 23 January 2015, III B 6 - V 8230/07/10005, page 5
§ 1a EnergieStV
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2.4 Basics - Tax Relief
For aircrafts with a maximum gross weight of no more than 12 t, aircraft fuel
is at first to be purchased including energy tax, if not a formal single permission to use aircraft fuels free of energy tax exists for that individual aircraft.
Afterwards the relief of paid energy taxes can be applied as far as aircraft
fuel was used for energy tax exempted purposes. 17
An airworthiness certificate, air operating permit, or AOC is however no
legal requirement for the energy tax exemption within commercial aviation.18
2.5 Basics - Tax Rates
Aircraft fuels are aircraft petrol and kerosene. The following tax rates
currently apply:
Type
Aircraft petrol
per 1.000 Liter
EUR 721,00
19
Aircraft turbine fuel (Kerosene)
20
EUR 654,50
3. Abbreviations
AOC
Air Operator’s Certificate
BFH
Supreme Tax Court
BMF
Federal Ministry of Finance
EnergieStG
Energy Tax Act
EnergieStV
Energy Tax Ordinance
ECJ
European Court of Justice
EUR
Euro
HZA
Main Customs Office
LuftVG
Aviation Tax Act
t
Metric tons
17
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20
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§ 52 EnergieStG
BFH, Judgement of 8 July 2014, VII R 9/13, lit. 10 et sqq.
§ 2 (1) No. 2 EnergieStG
§ 2 (1) No. 3 EnergieStG
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4. Our Advice
In cases where aircraft fuels purchased free of energy tax were used for
non-exempted purposes after January 31, 2015, retrospective monthly
energy tax declarations must be filed and the corresponding energy taxes
be paid.
Aviation companies should however take non-judicial proceedings against
energy taxes levied on aircraft fuel used for such flights (i.e. maintenance-,
training-, instruction-, check-, and sales-flights) to temporarily suspend the
administrative finality until a supreme court judgement, and thereby not
endanger a tax refund in course of a later change of the legal situation.
5. Our Services
■ Energy tax declarations
■ Applications for energy tax relief
■ Applications for a formal single permission to use aircraft fuels for aviation
purposes free of energy tax
■ Communication and settlement with local HZA in charge on all energy tax
relatet issues (declaration period and due date, payment due date, etc.)
■ Non-judicial proceedings (objection proceedings, applications for
suspension of enforcement, etc.)
Your contacts on this article
Arzu Güven
+49 69 97886 747
Arzu.Güven@crowehorwath-ffm.de
Sebastian Seidel
+49 69 97886 747
Sebastian.Seidel@crowehorwath-ffm.de
Audit | Tax | Advisory | Risk
© 2015 INTERTAX TREUHAND GmbH
www.crowehorwath-ffm.de