“Charity creates a multitude of sins.” –Oscar Wilde
Companies and pilots often assume that no harm could come from offering a ride in the corporate jet at a charity auction. The FARs do allow charity flights under FAR Part 91, but the restrictions are quite narrow. FAR § 91.146 is titled “Passenger-carrying flights for the benefit of a charitable, nonprofit, or community event.” Among other things, 91.146 requires that a charity flight must be nonstop, begin and end at the same airport and is conducted within a 25-statute mile radius of that airport; pilots and sponsors of events described in this section are limited to no more than 4 events per calendar year.
What does the FAA Say?
Several FAA Legal Interpretations have explained that a corporation organizing charity flights that don’t meet the criteria of FAR § 91.146 can violate FAR Part 91 even if the company does not receive any money and simply directs passengers to give directly to a charity:
Your letter acknowledges that “charities and the public could look upon the company with favor for being willing to facilitate charitable giving” and concludes that “this alone should not be sufficient to be considered compensation to the company as the company is already viewed favorably in the community for its prior direct and substantial charitable giving.” However, the FAA reiterates that it maintains a long-standing policy that compensation is construed very broadly. Therefore, we caution that receipt of good will through facilitation of charitable donations in some circumstances may be construed as compensation, and thus would be in violation of part 91 operating rules.
Beware of Cost Sharing
Pilots may believe that they can provide a charitable flight under the cost-sharing provisions of FAR § 61.113, however, case law dictates that the pilot of a cost-sharing flight must have a common purpose with the passenger who will share expenses. The most amazing example of this policy occurred when a private pilot received a call from a neighbor in the middle of the night. The neighbor’s father was suffering a kidney failure and needed to get to a hospital far away. There was no suggestion that the neighbor and his father believed that they were getting a commercial service when they asked for help. On the other hand, the FAA and the NTSB felt that there could be no common purpose for taking the trip to the hospital. Wanting to help a sick friend did not count.
Pilots may believe that they can provide a charitable flight under the cost-sharing provisions of FAR § 61.113, however, case law dictates that the pilot of a cost-sharing flight must have a common purpose with the passenger who will share expenses. The most amazing example of this policy occurred when a private pilot received a call from a neighbor in the middle of the night. The neighbor’s father was suffering a kidney failure and needed to get to a hospital far away. There was no suggestion that the neighbor and his father believed that they were getting a commercial service when they asked for help. On the other hand, the FAA and the NTSB felt that there could be no common purpose for taking the trip to the hospital. Wanting to help a sick friend did not count.
The most disturbing element of this Good Samaritan case is the phenomenal over-reaction by the FAA. The FAA issued an emergency order of revocation. The pilot appealed, and the NTSB administrative law judge reduced the sanction to a 180-day suspension. The pilot appealed again, and the NTSB Board reduced the sanction to a 30-day suspension. The NTSB stated: “In light of these circumstances and relevant precedent, we think a 30-day suspension of respondent’s airman certificate would be sufficient to vindicate the public interest in ensuring that only properly certified commercial operators perform commercial services and, at the same time, to impress upon respondent the necessity of compliance with regulations despite the difficult choices that strict adherence to them may occasionally entail.”
Can You be Paid?
Flying for charity under Part 91 means no compensation to the pilot/operator. Tax benefits alone are not compensation according to the FAA:
Since Congress has specifically provided for the tax deductibility of some costs of charitable acts, the FAA will not treat charitable deduction of such costs, standing alone, as constituting “compensation or hire” for the purpose of enforcing [the FARs]. 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.
Even if a charity flight complies with the FARs, it may not be covered under a noncommercial aviation insurance policy. In a case involving a fatal airplane crash, where fly-in attendees could pay $10.00 for a ten-minute airplane ride, insurance coverage was successfully denied because the court found the fly-in to be a commercial operation not covered under the insurance policy. You can fly for charity, if you do it right. Corporate Angel Network, and a wide variety of other services that provide humanitarian air transportation comply with FAR Part 91 simply because the pilots/operators do not receive any compensation for providing lift to those in need. Some operations have received specific exemptions from the FAA to allow some form of limited reimbursement to the pilots/operators.
This article appeared in the April 2019 issue of Business & Commercial Aviation as a Point of Law article.
