Pilots and deductible training expenses
It costs at least €75,000 to train as a pilot but flight training programmes that cost twice that are no exception. Pilots also continue to incur work-related expenses after completing their training. The question is, do the costs of of things such as training flights, proficiency checks and annual medical examinations qualify as tax-deductible training expenses?
In recent months, courts have considered an unusually high number of cases that touch on this issue and have given conflicting rulings on the matter. The overview provided in this article starts with a general discussion of deductible training expenses. It then looks at the judgments and ends with a conclusion.
Training expenses
Training expenses totalling at least €250 and no more than €15,000 can be deducted. For taxpayers under 30, the ceiling of €15,000 does not apply. Given the high cost of pilot training, financial planning where possible is very relevant. Travel and accommodation expenses cannot be deducted, nor can the cost of computer equipment. The possibility of deducting training expenses may be abolished from 1 January 2019!
Judgments regarding training expenses
Below I mention several recent judgments that address the question of whether certain costs qualify as deductible training expenses. This is not a complete overview.
The Hague Court of Appeal ruling of 4 April 2017
In this ruling concerning the year 2013, the costs of the annual medical examination, lessons on theory required to maintain a pilot’s licence, the costs of flight instruction, and the proficiency check (known informally as the ‘prof check’) were the subject of the dispute.
Only the costs of the medical examination do not qualify as deductible training expenses. The case concerned the 2012 tax year. An amendment to the law introduced on 1 January 2013 stipulated that, as of 1 January 2013, the list of deductible training expenses was exhaustive. This means that, from 2013, expenses associated with the medical examination are probably no longer allowable, because they are not included in the list.
The Hague Court of Appeal ruling of 2 May 2017
In 2012, the person who brought the case wanted to deduct the costs of the KLM Flight Academy Recurrent Programme, Pilots4Pilots flight training lessons, the medical examination and a simulator flight. Ultimately, only the allowability of the latter two costs was in dispute: the other costs are deductible. The Hague Court of Appeal found that the costs associated with the simulator flight were deductible, but those associated with the medical examination were not because they were not sufficiently directly related to the ‘learning process’.
Arnhem-Leeuwarden Court of Appeal ruling of 30 May 2017
In 2012 the person who brought the case completed the E Programme to maintain the validity of their pilot’s licence. Among other things the programme included: (1) a (two-man crew) FNPT II simulator session twice a year, (2) a BE58 training flight (1:15) and (3) a prof check to be performed in a BE58.
All costs, including those associated with the medical examination, qualify as allowable expenditure.
Arnhem-Leeuwarden Court of Appeal ruling of 21 November 2017
The Court of Appeal found that costs of the annual proficiency check did not qualify as allowable expenditure on the basis that the costs relate primarily to the proficiency check and are too far removed from the learning process.
On the same day, in another case, the Court of Appeal concluded that the costs of 3 training flights to maintain flying skills were allowable expenditure. The fact that the flight took place with the knowledge and under the supervision of a third party was relevant.
Arnhem-Leeuwarden Court of Appeal ruling of 12 December 2017
In 2007 and 2008 a police officer completed the training required to obtain a private pilot’s licence. In 2010 and the 2011 he completed the training required to obtain a commercial pilot’s license. A commercial pilot’s licence allows the holder to fly planes as a profession.
The Court of Appeal held that the training costs incurred in 2007 and 2008 were not deductible because there was no expectation of financial gain in the form of income. Conversely, the costs incurred in 2010 and 2011 were allowable as deductible expenses, because it is plausible that these costs were incurred with the intention of earning an income.
Amsterdam Court of Appeal ruling of 22 February 2018
The person who brought the case completed the training required to obtain a commercial pilot’s license in 2012 and incurred various costs in the years up to and including 2012. To maintain the pilot’s licence, the person concerned paid for flying hours, a medical examination and German language lessons.
The Court found that the costs of the flying hours were not deductible, because they were not performed with the knowledge and under the supervision of an expert third party. The costs associated with the medical examination were not allowable because the purpose of these costs was not to maintain professional knowledge and skills, but to assess the pilot’s fitness to perform aviation duties. And the costs of the German language lessons were not deductible because the course was too general and did not focus on specific, technical terminology used in the profession.
Opinion rendered by Advocate General Niessen on 9 March 2018
The judgement delivered by the Arnhem-Leeuwarden Court of Appeal on 30 May 2017 is mentioned above. The Court held that the costs of the medical examination in 2012 were deductible. The state secretary disagreed with the decision by the Court of Appeal and asked the Supreme Court to review the case. The Advocate General took the view that the costs were not part of the learning process and therefore do not qualify as deductible.
Supreme Court, 1 June 2018
The Supreme Court concluded that the medical examination is not directly related to the learning process. Therefore, the costs associated with the medical examination are not deductible as training expenses.
Intermediate conclusion
There is clearly no easy answer to the question of whether some of the costs incurred in the process of maintaining a pilot’s licence are deductible as training expenses. District courts and courts of appeal issue conflicting rulings, with the costs of the medical examination being particularly contentious. The Supreme Court ruling has since clarified the situation for the years prior to and including 2012.
Pilots and treaties, working outside the Netherlands
The cost of training as a pilot may qualify as tax-deductible expenditure, but this doesn’t necessarily mean that deducting these costs will result in tax relief. Most of our clients work outside the Netherlands. This introduces all kinds of complex situations and raises questions such as: Who is the employer? Is there a permanent establishment? And has the 183-day rule been met? Each situation needs to be individually assessed and the specific provisions of the tax treaty need to be carefully considered. It is generally concluded that the country of employment (in this case, not the Netherlands) has the right to collect tax.
And if the country of employment—a country other than the Netherlands—has the right to collect tax, the Netherlands is not entitled to levy income tax. This means that the deduction of training expenses cannot be directly applied, in which case there will be no relief on Dutch income tax. The allowable expenses are carried over to the following year when the possibility of deducting the expenses can be re-examined.
Then it becomes a question of whether it will be possible to deduct the expenses in the future if income is taxed in the Netherlands.
Conclusion
In representing pilots we deal with all kinds of complex regulations. Training expenses are just one aspect. It is important to understand these regulations in order to obtain tax relief for allowable expenses. There will undoubtedly be many other rulings on deductible training expenses!
If you have questions or would like advice on a specific issue, we are happy to help. For more information or if you have any questions, please contact:
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