IDAPA 35.01.02.037 — AIRCRAFT AND FLYING SERVICES (RULE 037)

Sections 63-3607A, 63-3612, 63-3613, 63-3622C, 63-3622GG, Idaho Code
01.
Definitions. For the purposes of this rule, the following terms have the following meanings:
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a.
Aircraft. The term aircraft means any contrivance now known or hereafter invented, used, or
designed, for navigation of or flight in the air.
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b.
Recreational Flight. The hiring on demand of an aircraft with a pilot to transport passengers for a
recreational purpose. Examples are a pleasure ride, sightseeing, wildlife viewing, hot air balloon rides, or other
similar activities.
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c.
Freight. Goods transported by a carrier between two (2) points. Freight does not include goods
which are being transported for the purpose of aerial spraying or dumping. See Subsection 037.06 of this rule.
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d.
Transportation of Passengers. The transportation of passengers means the service of transporting
passengers from one (1) point to another. It does not include survey flights, recreational or sightseeing flights, nor
does it include any flight that begins and ends at the same point.
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e.
Nonresident Individual. An individual as defined by Section 63-3014, Idaho Code.
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f.
Nonresident Businesses and Other Organizations. A corporation, partnership, limited liability
company, or other organization will be considered a nonresident if it is not formed under the laws of the state of
Idaho, is not required to be registered to do business with the Idaho Secretary of State, does not have significant
contacts with this state, and does not have consistent operations in this state. A limited liability company (LLC) or
other legal entity formed by an Idaho resident under the laws of another state primarily for the purpose of purchasing
and owning one (1) or more aircraft is not a nonresident. The use of an aircraft owned by such an entity will be
subject to use tax upon its first use in Idaho.
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g.
Day. For the purpose of this rule any part of a day is a day.
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h.
Transportation of freight or passengers for hire. "Transportation of freight or passengers for hire"
means the business of transporting persons or property for compensation from one (1) location on the ground or water
to another.
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i.
Common Carrier. The operation of an aircraft in the transportation of freight or passengers for hire
by members of the public. When operating as a common carrier, the operator or owner of an aircraft usually charges a
rate that will generate a profit. For flights in which federal regulations limit or minimize this profit, the aircraft is
likely not operating as a common carrier.
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j.
Public. The public does not include:
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i.
Owners or operators of the aircraft;
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ii.
Employees of the aircraft owner or operator;
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IDAHO ADMINISTRATIVE CODE
IDAPA 35.01.02
State Tax Commission
Idaho Sales & Use Tax Administrative Rules
Section 037
Page 30
iii.
Guests of the aircraft owner or operator;
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iv.
Any of the above with the same relationship to a parent of the aircraft owner, a subsidiary of that
parent, or a subsidiary of the aircraft owner;
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v.
An individual or entity flying under a time sharing agreement which is an arrangement where an
aircraft owner leases his aircraft with flight crew to another individual or entity and the aircraft owner limits the
amount charged in accordance with federal regulations; or
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vi.
An individual or entity flying under an interchange agreement which is an arrangement where an
aircraft owner leases his aircraft to another aircraft owner in exchange for equal time on the other owner's aircraft and
any fees charged may not exceed the difference between the costs of owning, operating, and maintaining the two (2)
aircraft.
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02.
Sales of Aircraft. Sales of aircraft are taxable unless an exemption applies. Section 63-3622GG,
Idaho Code, provides an exemption for the sale, lease, purchase, or use of an aircraft:
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a.
Primarily used to provide passenger or freight services for hire as a common carrier;
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i.
Example 1: An aircraft is flown for the following activities: the aircraft owner's personal vacations,
flight instruction, and charter operations for hire as a common carrier. The flight hours for each activity are forty-five
(45), sixty-five (65) and seventy-five (75) hours respectively in a consecutive twelve (12) month period. The
combined flight hours for the taxable uses of the aircraft, owner and flight instruction, (45 + 65 = 110 hours) are more
than the hours operating as a common carrier (75 hours). Since the greater use of the aircraft is performing activities
that do not qualify for an exemption, the use of the aircraft will be taxable at fair market value as of that point in time.
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ii.
Example 2: A charter aircraft service uses an aircraft for three purposes: flight instruction, air
ambulance service, and charter flights operated as a common carrier. The flight hours for each activity are one
hundred (100), sixty (60) and fifty (50) respectively in a consecutive twelve (12) month period. The combined flight
hours for the exempt uses of the aircraft, as an air ambulance and as a common carrier (60 + 50 = 110 hours), are
more than the hours used for flight instruction one hundred (100) hours. Since the greater use of the aircraft is
performing activities that qualify for an exemption, the use of the aircraft will be exempt.
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b.
Primarily used for emergency transportation of sick or injured persons;
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c.
That is a fixed-wing aircraft primarily used as an air tactical group supervisor platform under a
contract with a governmental entity for wildfire activity; or
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d.
Purchased for use outside this state, when the aircraft is upon delivery taken outside this state, but
only if:
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i.
The aircraft is sold to a nonresident as defined in Subsection 037.01.d. or 037.01.e. of this rule; and
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ii.
The registration will be immediately changed to show the new owner and the aircraft will not be
used in this state more than ninety (90) days in any consecutive twelve (12) month period.
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03.
Sales of Aircraft Repair Parts to Nonresidents. Subject to the restrictions of Section 63-3622GG,
Idaho Code, sales of aircraft repair parts, including those paid for under a warranty or service agreement, are exempt
from tax when installed on an aircraft owned by a nonresident individual or business as defined in Subsection 037.01
of this rule.
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04.
Federal Law Prohibits States From Taxing Sales of Air Transportation. See 49 U.S.C. Section
40116. For this reason, sales of intrastate transportation as described by Section 63-3612(i), Idaho Code, are not
taxable in Idaho.
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IDAHO ADMINISTRATIVE CODE
IDAPA 35.01.02
State Tax Commission
Idaho Sales & Use Tax Administrative Rules
Section 038
Page 31
05.
Rentals and Leases of Aircraft. The rental or lease of an aircraft without operator is a taxable sale,
other than as provided in Subsection 037.02 of this rule. See Rule 024 of these rules.
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06.
Aerial Contracting Services. Businesses primarily engaged in the application of agricultural
chemicals as described in Federal Aviation Regulation Part 137, or in activities involving the carrying of external
loads as described in Federal Aviation Regulation Part 133, such as aerial logging, are performing aerial contracting
services. Such businesses are not primarily engaged in the transportation of freight.
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a.
Aircraft purchased, rented, or leased for aerial contracting are taxable. It makes no difference if the
service is provided to a government agency or a private individual or company. Sales or use tax also applies to the
purchase of repair parts, oil, and other tangible personal property.
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b.
When aircraft held for resale are used by the owner, who is an aircraft dealer, for aerial contracting
services, a taxable use occurs. The use tax is due on a reasonable rental value for the time the aircraft is used to
provide the service.
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07.
Air Ambulance Service. Charges for the emergency transportation of sick or injured persons,
including standby time, are not taxable.
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08.
Flying Instructions. Flying instructions or lessons which may include solo flights are a service and
the fees are not taxable.
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a.
Aircraft purchased, rented, or leased to be used primarily for flying instruction are taxable.
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b.
When aircraft held for resale are used by the aircraft dealer for flying instructions or lessons, a
taxable use occurs. The use tax is due on a reasonable rental value for the time the aircraft is used to provide the
service.
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09.
Recreational Flights. Sales and purchase of aircraft used primarily for providing recreational
flights are taxable.
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10.
Aircraft Held for Resale. Aircraft purchased and held for resale become taxable when used for
purposes other than demonstration or display in the regular course of business.
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a.
Rentals of aircraft held for resale are taxable as provided by Subsection 037.05 of this rule.
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b.
When an aircraft held for resale is used for a taxable purpose, the dealer owes tax on that use. The
use tax applies to a reasonable rental value for the time the aircraft is used.
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c.
Parts and oil purchased to repair or maintain aircraft held for resale are not taxable. The aircraft
dealer provides the supplier with a properly completed resale certificate. See Rule 128 of these rules.
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11.
Fuel. The sale or purchase of fuels subject to motor fuels tax, or on which a motor fuels tax has
been paid, pursuant to Chapter 24, Title 63, Idaho Code, is exempt from sales and use tax.
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