Magana Cathcart & McCarthy

The FAA’s Charitable Contribution to Charities

by Charles M. Finkel, Esq.

I had been the proverbial ostrich, with my head stuck far into the sand, when the head of a charitable flying organization gave me a call a few days ago. He questioned me about an article he had read concerning the legality of pilots flying charity missions. The article in General Aviation News & Flyer discussed the case of a private pilot who used his Baron to perform a charitable mission. He could not deduct the costs involved because he had already exceeded the permissible amount. Thus, he considered it a gift, and sought nothing in return. Nonetheless, the FAA went after him tooth and nail, and sought an emergency revocation. After a hearing, the Administrative Law Judge found the pilot guilty, but reduced the sanction to a six month suspension.

The FAA took the position that since the flight could have been used for a charitable deduction, then the flight was for "compensation or hire", and required a commercial pilot’s certificate, plus a Part 121 or 135 operating certificate. Fortunately for the pilot, the sanctions was overturned on appeal. However, the reversal was due to a procedural defect, and the NTSB never reached an opinion on the merits of the case.

Since I, and many other pilots, volunteer their time and aircraft to perform missions for charitable organizations such as Angel Flight, I became concerned, and decided to look into the matter. At first, I considered calling the local Flight Standards District Office for an opinion. But when I have done so in the past, my questions always seemed unanswered. Instead, I went directly to the applicable FAR in an attempt to understand where the FAA may be coming from.

FAR §61.118 states:

"Except as provided in paragraphs (a) through (d) of this section, a private pilot may not act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may he, for compensation or hire, act as pilot in command of an aircraft.

(a) A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if the flight is only incidental to that business or employment and the aircraft does not carry passengers or property for compensation or hire.

(b) A private pilot may share the operating expenses of a flight with his passengers.

(c) A private pilot who is an aircraft salesman and who has at least 200 hours of logged flight time may demonstrate an aircraft to a prospective buyer.

(d) A private pilot may act as a pilot in command of an aircraft used in a passenger-carrying airlift sponsored by a charitable organization, and for which the passengers make a donation to the organization

if:

(1) The sponsor of the airlift notifies the FAA Flight Standards District Office having jurisdiction over the area concerned, at least seven days before the flight, and furnishes any essential information that the office requests;

(2) The flight is conducted from a public airport adequate for the aircraft used, or from another airport that has been approved for the operation by an FAA inspector;

(3) He has logged at least 200 hours of flight time;

(4) No acrobatic or formation flights are conducted;

(5) Each aircraft used is certificated in the standard category and complies with the 100 hour inspection requirement of §91.409 of this chapter; and

(6) The flight is made under VFR during the day."

The purpose of regulations which require more stringent qualifications for those pilots flying paying customers, is to make certain that those actually parting with compensation for a flight are protected. It strikes me as odd, however, that a person who shares the expenses of a flight with his pilot, is not entitled to the same assurances of protection had he paid for the fuel, and some of the pilot’s time as well. Nonetheless, laws are laws, and one must read them as they are written.

As §61.118 is written, a private pilot flying for an organization such as Angel Flight, which provides for the free transportation of underprivileged patients, can do so without fear of FAA sanctions. Subsection (d) specifically refers to charitable flights for which the "passengers make a donation to the organization." There is no Federal Aviation Regulation that specifically pertains to flights for charitable organizations, and for which the passengers make no donation to the organization. This is the type of flight which most organizations, such as Angel Flight, sponsor.

The acting Chief Counsel of the Federal Aviation Administration made clear as of April 23, 1993, that the mere deduction of costs would not make a pilot susceptible to FAA enforcement. He stated:

"As a matter of policy, taking into consideration the fact that Congress has specifically provided for the tax deductibility of some costs of charitable acts, we will not consider charitable deduction of such costs, standing alone, as constituting ‘compensation or hire’ for the purpose of enforcing [Paragraph] 61.118 or Part 135. If taking a charitable tax deduction for transporting persons or property is coupled with any reimbursement of expenses, or other compensation of any kind, then this policy does not apply.

In 1995 the FAA made its "Angel Flight" policy clear:

"Recently, the FAA published change 10 to its Air Transportation Inspectors Handbook (FAA Order 8400.11). That change included new guidance for our inspectors concerning Angel flights. Included below, is the full text of guidance. What it says, basically, is that if a person takes a charitable tax deduction for the costs associated with the operation that does not constitute a for hire or compensation operation.

FAA POLICY REGARDING ‘COMPENSATION OR HIRE’ CONSIDERATIONS:

FOR CHARITABLE FLIGHTS OR LIFE FLIGHTS. Various organizations and pilots are conducting flights that are characterized as ‘volunteer’ ‘charity’ or ‘humanitarian.’ These flights are referred to by numerous generic names, including ‘Life Line Flights,’ ‘Life Flights,’ ‘Mercy Flights,’ and ‘Angel Flights.’ These types of flights will be referred to as ‘Life Flights’ in this section.

A. Purposes for Life Flights. The types of organizations and pilots involved with or conducting Life Flights vary greatly. The most common purpose of Life Flights is to transport ill or injured persons who cannot financially afford commercial transport to appropriate medical treatment facilities, or to transport blood or human organs. Other ‘compassionate flights’ include transporting a child to visit with a dying relative, or transporting a dying patient to return to the city of the patient’s birth.

B. FAA Policy. The FAA’s policy supports ‘truly humanitarian efforts’ to provide life flights to needy persons (including ‘compassionate flights’). This also includes flights involving the transfer of blood and human organs. Since Congress has specifically provided for the tax deductibility of some costs of charitable acts, the FAA will not consider charitable deductions of such costs, standing alone, as constituting ‘compensation or hire’ for the purpose of enforcement of FAR 61.118 or FAR part 135. Inspectors should not treat the tax deductibility of costs as constituting ‘compensation or hire’ when the flights are conducted for humanitarian purposes."

Thus, pilots donating their time and aircraft for organizations such as Angel Flight, need not be concerned with the wrath of the FAA knocking at their hangar doors. However, pilots must be very careful on how they volunteer themselves and their aircraft for charitable purposes. For instance, assume a pilot wants to donate to a church, school, or other charitable event, a sightseeing flight. In that instance, the passengers would be making a donation to the organization, and a private pilot would be acting as pilot in command of an aircraft used in a passenger-carrying airlift sponsored by a charitable organization, pursuant to the language of FAR Section 61.118. If a private pilot is going to make such a donation, he best follow each provision contained within §61.118(d), lest he be the target of a zealous FAA inspector. The requirements are not overly burdensome, and should not deter any private pilot from offering his aircraft to be used for the purposes of charitable donations.

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