Summary Notes Personal Use: Impact on the Companynbaa.peachnewmedia.com/EdutechResources/resources/by...2012/05/29 · – Transport sales executives and marketing teams – Transport

Personal Use:

Impact on the Company Ruth Wimer - McDermott, Will & Emery

Doug Stewart - AircraftLogs

Live NBAA Webinar| May 29, 2012

Agenda & Objectives

• Introductions Wimer

• Fictional Case Study – Jackson Power Stewart

• IRS Entertainment Disallowance

– Overview of the Entertainment Disallowance Wimer

– Sample Calculation of Entertainment Disallowance Stewart

– Strategies for Maximizing Tax Deductions Wimer

• SEC Proxy Disclosure Requirements

– Overview of SEC Proxy Requirements Stewart

– Strategies for Minimizing SEC Proxy Disclosures Wimer

• Deductibility of Charitable or Lobbying Flights Wimer

• Questions & Answers

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• Live NBAA Webinar| May 29, 2012

Summary Notes

Personal Use: Impact on the Company

In this session, the group participants will learn the key

differences between a personal entertainment flight and a

personal, non-entertainment flight. They will learn how the IRS’s

entertainment disallowance rule reduces a company’s annual tax

deductions. The participants will also learn about SEC proxy

disclosure requirements applicable to personal flights by certain

individuals. Armed with a general understanding that certain

flights can reduce a company’s tax deductions and increase its

public disclosures, our presenters will discuss:

– Calculating the IRS entertainment disallowance and the SEC

proxy disclosure amounts

– Strategies to maximize tax deductions and minimize SEC

proxy disclosures

– Deductibility of flight expenses attributable to charity or

lobbying activities

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Agenda & Objectives












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Our Case: Jackson Power Industries

• Electrical Contractor for

the Utility Industry

• Founded by J. Walter

Jackson, Chairman &

CEO, age 63

• Led by J. Walter Jackson

Jr., President

• 4000 employees across the southwestern US

• Publicly-traded on NASDAQ beginning in 1999

• Headquarters in St. Louis

5


Business Aviation Profile

• Falcon 2000 owned by Jackson Power Industries

– Based in St. Louis (KSUS)

– The company’s first aircraft

– Acquired in 2011 for $17 million

– Four pilots and a scheduler on staff

– $2 Million Annual Operating Costs

• Common uses of the aircraft:

– Transport sales executives and marketing teams

– Transport project managers to utility work sites

– Weekly commutes of CEO from his home in Colorado Springs

– Provide personal transportation to Jackson family

6


A Typical Week – Five Trips in October 2011

1. Monday Morning Commute

– Aircraft flies to Colorado Springs to pick up Jackson Sr.

– Roughly 4 hours round trip

2. Monday Afternoon – Round trip to Pittsburgh (2 VP’s)

3. Tuesday – Round trip to Atlanta office (2 VP’s)

4. Wednesday – Round Trip to Chicago (2 Engineers)

5. Thursday – Combined Trip to Pittsburgh & Boston

– Two Sales Reps fly to Pittsburgh

– Jackson family (family of four) rides along for drop off on

Boston (starting a week of vacation)

– Aircraft returns Pittsburgh, takes the two Sales Reps home

7


Three Areas of Impact to Jackson Power

1. Calculate SIFL Impact for Employees with Personal

Use of the Aircraft (covered last week)

2. Calculate Entertainment Use Disallowance

– Quarterly Calculation of Entertainment Disallowance for Tax

Provision (in the corporate financial reporting)

– Annual Calculation of SIFL for Employee Personal Use

– Annual Disallowance as part of Corporate Return

3. Disclose Incremental Cost in the Annual Proxy

Statement

– Compensation Disclosures for Named Executive Officers

(NEO’s)

– Related party transactions, if applicable

8


Aviation Reporting Can Generate Significant Workload

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Agenda & Objectives












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Aircraft Expense Disallowance

• Summary: American Jobs Creation Act of 2004 (“AJCA”) requires

companies to disallow the cost of personal entertainment flights

provided to “specified individuals”.

– This calculation becomes a percentage of your aircraft use

– IRS Notice 2005-45 explained “how” to disallow – and severely

impacted the deductibility of corporate aircraft.

• Many companies still unaware and fail to disallow.

– Often its caused by a process breakdown

– Critical data never gets from the flight department to the reporting

team or tax staff.

– Preventing a portion of your overall aviation expenses from being

deductible on the company tax return

• Makes the flight department look expensive

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What Are We Disallowing?

• Four Methods of Calculation – but each deal with occupied seats

– Before AJCA, only the business purpose of the flight mattered

– Now, the business purpose of every passenger matters

• Example: Chairman on business trip, family rides along

– Before AJCA: 100% deductible – No problem

– After AJCA : spouse & two children – 75% is non-deductible

• Your Data Matters. Your Flight Patterns Matter!

– Example: $2 Million operating budget and $5 Million of depreciation

– Disallowing only 30% could cost the company $840,000 (40% of 30%

of $7MM)

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Classification of flights

Business (B) – No SIFL

income/Expenses are fully

deductible

Personal Non-Entertainment

(PNE) - Report SIFL income.

Expenses are fully deductible.

Personal Entertainment (PE) -

Report SIFL income. Expenses

not deductible (except for SIFL

amount or reimbursements).

Employer-provided flights

B - Business PE – Personal

Entertainment PNE - Personal

Non-entertainment

Report SIFL Disallowed Expenses

Report SIFL income Fully deductible

Time sharing agreement Calculate Disallowance Percentage:

Flight by Flight method Occupied seat method

No SIFL income Fully deductible

13


Category #1 – Business flights

• Includes only flights that are ordinary and necessary to

the company’s business

• A “business” flight can include business entertainment

where the entertainment portion was “before during or

after” business discussions, associated with or related

to the taxpayer’s business or directly business related

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Spouse, family and personal guests

• Spouses: Just say no!

• Almost never be considered an ordinary and necessary

business expense.

• Taxable fringe benefit to the employee

• Must consider whether the spouse is traveling for

entertainment or non-entertainment purposes.

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Category #2 – Personal non-entertainment

• Examples of Personal Non-Entertainment Flights not

subject to the disallowance

– Commuting to and from work, or travel between residences

– Investment activity

– Director meetings of unrelated company

– Meetings with broker, attorney, accountant

– Doctors visits

– Funerals

– Charitable activities

– Children to and from school or visiting colleges

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Category #3 – Entertainment

• Treasury Regulation §1.274-2(b)(1)(i) generally defines

“entertainment” as “any activity which is of a type generally

considered to constitute entertainment, amusement or recreation,

such as entertaining at night clubs, cocktail lounges, theatres,

country clubs, golf and athletic clubs, sporting events, and on

hunting, fishing, vacation and similar trips.”

• Objective test shall be used.

• Examples of entertainment: ALL VACATIONS, weddings and other

parties, visiting well relatives such as children in college, and

entertainment activities with business associates where not

attached to actual business discussions or activities.

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Expenses

• All costs of maintaining and operating the aircraft

• Proposed Regulations: …includes, but is not limited to, salaries for

pilots, maintenance personnel and other personnel assigned to the

aircraft, meal ad lodging expenses of flight personnel, take-off and

landing fees, costs for maintenance flights, costs of on-board

refreshments, amenities and gifts, hangar fees (at home or away),

management fees, costs of fuel, tires, maintenance, insurance,

registration, certificate of title, inspection, and depreciation: and all

costs paid or incurred for aircraft leased or chartered, to or by the

taxpayer.

• Interest?

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Employer provided flights – allocation of costs

• “Occupied seat method” or the “flight by flight” method

• Allocate costs based on each passenger’s primary

purpose for traveling

• Calculation may be performed in either hours or miles

• Annual choice between these two methods, and

between miles and hours

• Must use same method for all planes

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Deadhead Flights Must be Tracked

• Flight with no passengers

• Same number of passengers traveling for the same

purposes as the occupied flight to which the deadhead

flight relates

• Note that Deadhead must count for the Entertainment

Disallowance, but not for income inclusion (SIFL)

purposes

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Specified Individuals

• Officers, directors and 10 percent owners

• Spouse, Family and Personal Guests:

– Such flights are considered provided to the specified individual

for purposes of the entertainment disallowance, because of the

relationship to the specified individual

• “Officers” are defined by reference to securities laws

– “vice presidents in charge of a….”

• Example: Jackson Power considers SVP’s and above

to be specified individuals

– No IRS impact unless personal entertainment use occurs – less

likely to overlook

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Agenda & Objectives












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Aircraft Financial Summary

• Aircraft acquired in 2011 for $17M

– Direct Operating Costs: $1 million (Fuel, Mx, Engine reserves)

– Fixed Costs: $1 Million (Salaries, hangar, insurance, etc.)

– Depreciation will be $5.5 million in 2012 (6 year MACRS, half

year)

• Approx. 400 flight hours per year:

– 100 hours of personal entertainment use by the CEO, President

and their guests

– 200 hours of business

– 100 hours of commuting

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Jackson Power will have about $7.5 million of cost subject to disallowance rules this year…


Typical Weekly Flight Patterns

St. Louis

Chicago Boston

Atlanta

Pittsburgh

Colorado Springs

Monday & Friday Commute of Jackson Sr.

Frequent Flights to Regional Office

Locations

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Review: Five Trips in October

1. Monday Morning Commute

– Aircraft flies to Colorado Springs to pick up Jackson Sr.

– Roughly 4 hours round trip

2. Monday Afternoon – Round trip to Pittsburgh (2 VP’s)

3. Tuesday – Round trip to Atlanta office (2 VP’s)

4. Wednesday – Round Trip to Chicago (2 Engineers)

5. Thursday – Combined Trip to Pittsburgh & Boston

– Two Sales Reps fly to Pittsburgh

– Jackson family (family of four) rides along for drop off on

Boston (starting a week of vacation)

– Aircraft returns Pittsburgh, takes the two Sales Reps home

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These Trips will Trigger the Following…

St. Louis

Chicago Boston

Atlanta

St. Louis

Pittsburgh

Colorado Springs


Frequent Flights to Regional Office Locations

1. SIFL Income to Jackson Sr.

2. Disallowance of costs associated with the Boston trip

3. SEC disclosure of the incremental cost to the company of providing personal use to Jackson Sr.

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Occupied Seats Matter

• Example: Executive on a business trip, spouse & two

children ride along for fun

– Before AJCA: The plane was departing for business – No

problem

– After AJCA : spouse & two children – 75% is non-deductible

• Your Data Matters. Your Flight Patterns Matter!

• Jackson Power has $7.5 million of cost at stake

– $2 million of departmental costs

– $5.5 million of depreciation

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Disallowance Impact to Jackson Power

• Just a 1% Swing Equals $75,000

Direct Operating Costs: $1,000,000

Fixed Costs: 1,000,000

Depreciation: 5,500,000

SIFL 4,437

Costs Subject to Disallowance $7,495,563

• Difference of almost $2 Million between Methods!!

– Seat Hours: 45.79% or $3.43MM

– Seat Miles: 40.77% $3.06MM

– Flight Hours, Flight By Flight: 26.31% $1.97MM

– Flight Miles, Flight By Flight: 21.82% $1.64MM

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Seat Hours – Weighted Average Calculation

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Seat Miles – Weighted Average Calculation

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Flight Hours – Flight by Flight Calculation

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Flight Miles – Flight by Flight Calculation

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Comparing the Four Disallowance Methods

• Small Annual Passenger Volume (~30 or less): Large

variations in all four methods may result – personal use

has a big impact

• Large Passenger Volume: As the volume of

passenger travel increases (100 or more), the results

have a tighter dispersion

• Flight Patterns Matter: If Personal Trips are typically

longer than Business Trips, Seat Hours may provide

better results (Miles accumulate faster than Hours on

long trips)

• Flight By Flight Method: Often helpful to offset trips

with large group of personal travelers 33


Agenda & Objectives












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Strategies for Maximizing Tax Deductions

• Substantiate, Substantiate, Substantiate

• Not substantiating can lead to denial of characterization

of flight as a business flight, or a flight as a non-

entertainment flight

• Ensure all flights which will not be disallowed have clear

and contemporaneous documentation

• Calculate deduction disallowance all four ways and pick

lowest disallowance year by year

• Draft and follow policy minimizing permitted personal

entertainment use.

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Strategies (cont’d)

• Analyze all “personal” flights to ensure proper treatment

• Attempt to combine business trips and entertainment

trips

• Minimize deadheads for personal entertainment;

conversely, be sure to properly include seat hours/miles

for business deadheads in your disallowance

calculation

• Multiple Aircraft?

– Consider the impact of grouping like aircraft together

– Consider utilizing aircraft with lower tax impact for personal

entertainment flights

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Agenda & Objectives












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SEC – Annual Reporting to Shareholders

• Proxy Statement: Must Disclose the “Value” of Aircraft

Personal Use for each “Named Executive Officer” (NEO)

– Amounts exceeding $10,000 must be disclosed in the

company’s “Summary Compensation Table”

– Amounts exceeding the greater of $25,000 or 10% of total

perquisites require separate footnote explanation

– Generally, included under “All Other Compensation”

• Value = “Aggregate Incremental Cost” (AIC) of Providing

the Compensation. Significant variations in calculations

across reporting companies.

“Just one non-business round trip between LAX and Teterboro can trigger SEC reporting requirements.”

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SIFL Income & Proxy Disclosures of AIC

• SIFL and Proxy disclosures go

“hand in hand”

• For NEO’s, the AIC disclosure

is closely related to the flights

which require SIFL

• SIFL can be disclosed for

informational purposes, but

does not satisfy AIC disclosure

requirements

• The incremental cost is

generally much greater than

SIFL

Sample :Round Trip LAX & TEB

Gulfstream G-IV

SIFL:

$3,941 / person

Incremental Cost: ~ $27,000

Retail Charter:

~ $60,000

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Methods of Computing AIC

• Summary: Those costs which the company would not

have incurred but for the personal use of the plane by

an NEO or their guests

• Significant variations among reporting companies, but

some common practices include

– Exclusion of fixed costs (salaries, depreciation, maintenance)

– Inclusion of variable costs (fuel, trip-related expenses)

– Exclusion of flights where business passengers are aboard

(negligible incremental cost for personal use passengers)

– Use of published hourly operating costs

– Use of actual hourly operating costs

40


Sample of a Proxy: General Electric

NEO’s AIC

Disclosure of Time Sharing Agreement with NEO

41


Sample Footnote (Phillip Morris)

• The amounts shown are the incremental cost of

personal use of Company aircraft to Phillip Morris and

include the cost of trip-related crew hotels and meals,

in-flight food and beverages, landing and ground

handling fees, hourly maintenance contract costs,

hangar or aircraft parking costs, fuel costs based on

the average annual cost of fuel per hour flown, and

other smaller variable costs.

• Fixed costs that would be incurred in any event to

operate Company aircraft (e.g. aircraft purchase costs,

depreciation, maintenance not related to personal

trips, and flight crew salaries) are not included.

42


Other AIC Disclosure Samples

…..based on the aggregate incremental cost to the Company using a

method that accounts for fuel, maintenance, landing fees, other

associated travel costs and charter fees.

… includes the incremental cost of relocating aircraft to

accommodate personal trips and the incremental costs of flights for

______ and ______ to attend outside board meetings for the public

companies and government institution at which they serve as outside

directors.

… is determined by multiplying the total 2011 personal flight hours by

the incremental aircraft cost per hour. The incremental aircraft cost

per hour is derived by adding the annual aircraft maintenance costs,

fuel costs, aircraft trip expenses and crew trip expenses, and then

dividing by the total annual flight hours.

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Jackson Power – Aggregate Incremental Costs

St. Louis

Chicago Boston

Atlanta

St. Louis

Pittsburgh

Colorado Springs


Frequent Flights to Regional Office Locations

Assume $3000/hour (you should track actuals)

3.9 hours for Monday’s commute 4.0 hours between Pitt & Boston 7.0 hours x $3,000 = $21,000 this week (vs. $25,000 threshold) (note – we have included the deadhead BOS > PIT)

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Agenda & Objectives












45


Time Share Arrangements

• Summary: Under Part 91.501(c)(1), a time-sharing agreement

allows an aircraft operator to be reimbursed for a limited set of

costs for a flight.

• “Two Times Fuel” - Corporate flight departments often provide

time-sharing arrangements, allowing an executive to reimburse the

company for personal use of the aircraft. These arrangements

require specific tracking of ten eligible costs on each flight:

1. Fuel, oil, lubricants, and other additives.

2. Travel expenses of the crew

3. Hangar and tie-down costs away from home base)

4. Insurance for a specific flight

5. Landing fees, airport taxes, and similar assessments.

6. Flight-specific customs, foreign permits, and similar fees

7. In-flight food and beverages.

8. Passenger ground transportation.

9. Flight planning and weather contract services.

10. An additional charge equal to 100 percent of the expenses listed in item 1 (fuel)

Time-sharing arrangements usually trigger

excise tax!

46


Reimbursement Strategies

• Time Sharing Agreements – Reimbursements can

approximate “net incremental cost”, reducing the

magnitude of the “other compensation” disclosure.

– Requires disclosure of a related party transaction

• Reimbursement under the “Nichols Re-interpretation”

– Full reimbursement under specified circumstances (executive

must be on board for personal purposes, spouse/dependents

notwithstanding)

– May require Form 8K filing

An emerging trend is for executives to reimburse the company via time sharing agreements.

47


Leads to “Related Party Transactions”

• Securities & Exchange Commission (SEC) also

requires disclosure of “related-party” transactions

• Transactions between the executives & the company

• Proxy Excerpt below:

48


Executive-Owned Aircraft

• Summary: Often, a company executive may own the aircraft, and

lease it back to his/her employer.

• Leads to more internal accounting, depending on the nature of the

arrangement:

– Dry leases

– Time shares

– Etc.

• Implications: For both Executive-Owned Aircraft and Time-

Sharing Arrangements, the executives involved and the company

will need to “settle up” periodically (“who owes who?”). The data

provided by the flight department will directly affect these

calculations.

• Settlements will often occur quarterly, in order to be finalized for

SEC reporting purposes

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Section 162(m)

Disallowance for Public Companies

• IRS guidance on the entertainment disallowance

supports the position that the Section 162(m) limitations

only apply to the amount included in the executives W-2

for entertainment flights

• Query: Can the same position be taken for non-

entertainment flights?

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Agenda & Objectives












51


Deductibility: Charitable & Lobbying Flights

• Only “out of pockets” for charitable flights are deductible

• Lobbying Flights are not deductible pursuant to section

162(e) which applies to “certain” lobbying expenses

• A solution is to “SIFL” the passenger, and then the

remainder is deductible in some instances.

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Questions for Today’s Presenters?

[email protected]

[email protected]

Documents

Summary Notes Personal Use: Impact on the Companynbaa.peachnewmedia.com/EdutechResources/resources/by...2012/05/29 · – Transport sales executives and marketing teams – Transport