Sidanth Rajagopal, Clasis Law Financing Corporate Jets & Helicopters into India
Overview Registration Process Import into India Duties, Taxes and other Levies Cape Town Convention and India Non-Scheduled Operators What they are? Aircraft Mortgage in India Exchange Control Regulations in India Repossession and Deregistration
Registration of Aircraft The Director General of Civil Aviation (the DGCA ) is responsible for registration of aircraft. India has an Operator Registry. An aircraft may be registered with the DGCA, if it is owned by: Indian citizens or Indian companies; or foreign companies leasing aircraft into India; or a foreign citizen/company carrying on business in India. The register records: aircraft operator, lessor and owner details: names and nationalities; and addresses. notation of any aircraft mortgage.
Import into India Importing aircraft into India requires prior approval from the Ministry of Civil Aviation and the DGCA. Corporate jets are usually imported by: individuals for private use; and charterers holding non-scheduled operator s permit ( NSOP ). Majority of business jet imports into India are for large corporates. Imported by their captive charter company. Used for chartering for their group companies. Third party charterer has recently started growing in popularity.
Duties, Taxes and Levies Import of corporate jets/helicopters require compliance with detailed customs clearance formalities. Individuals importing aircraft require a specific import license. Customs duty applicable for import by: individuals for private use 18%; and charterers and other NSOP holders 2.575%. Loan repayment or lease payments MAY attract withholding taxes amounting to 10-20%. Withholding taxes may be avoided by structuring transaction through a tax-friendly jurisdiction (i.e. Ireland).
Cape Town Convention and India India ratified to Cape Town Convention ( CTC ) on March 31, 2008. Declarations made include: irrevocable deregistration and export authorization power of attorney ( IDERA ); self help; choice of law; and cooperation of Indian courts with foreign courts/insolvency administrators. No declaration in respect of priority of pre-existing rights. Ambiguity exists as regards benefit to lessors and lenders. India is yet to properly implement the CTC in its national law.
Aircraft Mortgages: The Indian Perspective No specific law governing mortgage of aircraft. Mortgage of moveable property is termed as a hypothecation Enforcement of hypothecation only gives rise to a right to sell the asset not purely repossess. in rem right just like traditional mortgage. Concept of aircraft mortgage recognized by Indian courts under general principles of contract. In case of aircraft mortgages, owner and mortgagee to file proof of mortgage with DGCA. Mortgage will be noted on certificate of registration. Not proof of existence of mortgage. Charge on movable property required to be registered with the Indian Registrar of Companies.
Foreign Law Aircraft Mortgage Indian courts generally recognize the effectiveness of a foreign law aircraft mortgage. Based on reciprocal arrangement judgments of certain foreign country may be enforced. India has reciprocal arrangement for mutually enforcing court orders, with, inter alia, United Kingdom, Singapore, New Zealand and United Arab Emirates. Process of enforcing a reciprocating territory foreign law mortgage: obtain a judgment with respect to mortgaged property from the competent foreign court; and initiate legal proceedings for enforcement of foreign judgment in India. Process of enforcing a non-reciprocating territory foreign law mortgage: commence separate proceedings in India on the basis of such a decree or judgment which may be construed as a cause of action for the said suit; and establish that the judgment is conclusive. Lenders may include an arbitration clause in the mortgage.
Foreign Exchange Regulations Foreign exchange transactions are governed by the Foreign Exchange Management Act, 1999 and are regulated by the Reserve Bank of India ( RBI ). RBI has allowed the Authorized dealers ( AD ) to: open letters of credit towards security deposits in respect of lease of aircraft on operating lease basis; and issue a no objection for issue of corporate guarantee in favour of overseas lessor subject to: board resolution specifying officials to execute guarantee; and guarantee being co-terminus with lease period. Lease payments under a financial lease transactions i.e. leases containing an option to purchase the aircraft at the end of the lease period, require prior RBI approval.
Common Structure(s) Common structures for financing a corporate jet/helicopter are normally with a view to: increase tax efficiency; and minimize regulatory hurdles. Parent / Guarantor guarantee 100% ownership Financier Irish SPC Indian NSOP Loan Lease Parent or group company to establish a special purpose company ( SPC ) in Ireland SPC to borrow funds for acquiring aircraft SPC to lease aircraft to Indian NSOP on an operating lease Lease rentals from India to Ireland not subject to withholding taxes
Deregistration/Repossession of Aircraft DGCA is permitted, on request from the lessor or owner, to deregister the aircraft, if the lease agreement under which the aircraft operates has been terminated in accordance with its terms. In the event termination of lease is disputed, DGCA cannot take any action without a decision of a competent court in India. In recent judgments courts have recognised the requirements of deregistration and repossession for the lenders and lessors. Self help remedies under the CTC are limited, as CTC s integration into prevailing law in relation to aircraft in India is still ambiguous.