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Flying on a Wing and a Prayer
In its zeal to eradicate perceived abuses and further clip the wings of executives who, based on press reports, took great pleasure in using the company's airplane for personal purposes, Congress amended section 274(e)(2) of the Internal Revenue Code (the Code) in the American Jobs Creation Act of 2004 (AJCA). Effective on the date of enactment (Oct. 22, 2004), these amendments effectively reversed the decisions of the Tax Court and Eighth Circuit in Sutherland Lumber-Southwest, Inc. v. Commissioner, 114 T.C. 197 (2000), aff'd 255 F.3d 495 (8th Cir. 2001), acq. AOD 2002-02 (Feb. 11, 2002), and prompted the Internal Revenue Service (IRS) to issue guidance containing a myriad of rule changes and hinting at others, leaving tax practitioners scratching their heads and companies running for cover.
On May 27, 2005, the IRS released Notice 2005-45, 2005-24 I.R.B. 1228 (June 13, 2005) (the Notice). The rules set forth in Notice 2005-45 create an administrative nightmare for taxpayers and potentially result in the loss of valuable company tax benefits when executives (so called “specified individuals” and their guests) use the company's airplane for personal purposes. Unfortunately, the Notice, which applies to expenses incurred after June 30, 2005, is difficult to interpret and creates many traps for those attempting to comply with the new deduction disallowance rules.
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