Subject matter of tax
Pursuant to § 1 (1) Aviation Tax Act (Luftverkehrsteuergesetz - LuftVStG), the aviation tax is levied on any legal transaction entitling a passenger to depart from a place of departure in Germany on board an aeroplane or helicopter for carriage by an aviation enterprise to a place of destination.
A legal transaction entitling a passenger to depart on board an aircraft may, for example, be a contract of carriage brought about by the purchase of a plane ticket, the booking of a package holiday (contract bundle) or a so-called bonus flight received on the strength of a bonus scheme offered by an aviation enterprise, a gift, or a prize from a game or competition.
It does not matter whether the legal transaction involves payment or not. Under § 1 (2) LuftVStG even the allocation of a seat to a passenger counts as a legal transaction.
The Aviation Tax Act only applies to legal transactions in which the passenger is named to the aviation enterprise on or after 1 September 2010 and which entitle the passenger to depart on or after 1 January 2011 (§ 19 (1) LuftVStG). The tax does not apply to "travel or flight bookings" made prior to 1 September 2010 (provided the customer booking has been finally and conclusively made) because - unlike bookings made after 1 September 2010 - the new aviation tax could not be taken into account when the amount of the fare was agreed. In view of this, therefore, § 19 (1) LuftVStG is subject to the restriction that flights or package holidays involving air travel which were booked by a customer before 1 September 2010, e.g. through a travel agency or via the Internet, are not subject to taxation under the Aviation Tax Act. On the other hand, all customer bookings of flights or package holidays involving air travel which were made after 1 September 2010 constitute taxable legal transactions. If a customer booking is made not directly with the travel operator actually responsible for performing the flight or organizing the holiday but initially with some kind of intermediary (e.g. an insurance company, newspaper, lottery/gaming enterprise, adult education institute, church body), the customer booking is deemed finally and conclusively made at the time when it is received by the travel operator actually responsible for performing the flight or organizing the holiday.
A departure is defined as the takeoff of an aeroplane or helicopter from a domestic or foreign place of departure as the start of the air journey to which the legal transaction relates (§ 2 No 3 LuftVStG). A domestic place of departure is defined in § 2 No 1 LuftVStG as an airport, landing field or glider field pursuant to § 6 (1) Air Traffic Act (Luftverkehrsgesetz - LuftVG) as well as sites for which a permit pursuant to § 25 (1) Sentence 1 LuftVStG is required.
The aviation tax only applies to flights with aeroplanes or helicopters as defined in § 1 (2) Sentence 1 Nos. 1 and 2 LuftVStG. Helicopters are aircraft that obtain their lift from at least one rotor mounted and rotating around a vertical axis. Flights with other airborne craft as defined in § 1 (2) Sentence 1 Nos. 3 to 11 LuftVStG, e.g. gliders, airships (e.g. zeppelins), hot air balloons, powered gliders or air sport devices such as microlight aircraft or girocopters are not subject to the tax.
The flight must be performed by an aviation enterprise. If passengers are not carried by aviation enterprises, the flights are not subject to the aviation tax. However, the fuel used for flights by such non-aviation enterprises is normally subject to energy tax (i.e. aviation fuel tax).
An aviation enterprise is an enterprise with a valid operating permit or equivalent permit under national, European or international aviation law, authorizing it to conduct flights for the commercial carriage of persons by aeroplane or helicopter (§ 2 No 2 LuftVStG).
The following are valid as operating permits of aviation enterprises:
In the case of enterprises from Germany:
- operating permit issued by the German Federal Aviation Office (LBA) pursuant to § 20 (4) LuftVG in conjunction with Art. 3 of Regulation (EC) No 1008/2008) for all German aviation enterprises engaged in the commercial carriage of persons - regardless of the number of seats -, freight or post.
In the case of enterprises from other EEA states (EU Member States, Norway, Iceland, Liechtenstein) and Switzerland:
- operating permit of the home state pursuant to Art. 3 of Regulation (EC) No. 1008/2008.
In the case of enterprises from non-EEA states (without Switzerland):
- Operating Licence, Air Operator Certificate (AOC), Air Carrier Certificate (ACC),
- Route Licence issued by the German Federal Aviation Office (LBA) pursuant to § 21a LuftVG
(Aviation enterprises from non-EEA states which are in possession of an operating permit (licence) issued by their home state also require an operating permit pursuant to § 21a LuftVG if they enter German air space on a scheduled air service or fly from Germany to EEA or non-EEA states).
An equivalent permit would be a permit to enter German air space pursuant to § 2 (7) LuftVG (for single flights, charter flights etc.).
Also deemed an aviation enterprise within the meaning of § 2 No 2 LuftVG is any person or party engaged in the commercial carriage of passengers who therefore requires a permit or licence under the provisions of the German Aviation Tax Act (LuftVStG) or Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Official Journal L. 293 of 31.10.2008, page 3) in the version in force from time to time (§ 1 Aviation Tax Implementing Ordinance (Luftverkehrsteuer-Durchführungsverordnung - LuftVStDV).
The place of destination is the place, either at home or abroad, at which according to the legal transaction the passenger's air journey is scheduled to end (§ 2 No 4 LuftVStG).
