As you may know, the FAA defines compensation very broadly. Compensation may include not only the exchange of money, but also the exchange of value. With this expansive view of compensation as a backdrop, the FAA was recently asked whether it was permissible to barter services in exchange for (1) a private pilot’s pro-rata share of operating expenses under 14 C.F.R. § 61.113(c) and (2) rental of an aircraft.
In the first scenario presented to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for Pilot A’s pro-rata share of expenses on common-purpose, recreational flights in an aircraft owned by Pilot B, also a private pilot, and with Pilots A and B as the sole occupants of the aircraft during the flights. The common-purpose for the flights would be the building of pilot time as allowed by applicable regulations.
For purposes of the request, the FAA was asked to assume that the aircraft’s type certificate does not require operation by two crewmembers, the flights are operated under 14 C.F.R. Part 91, and during the common-purpose flights one pilot is acting as pilot in command and the other pilot is strictly a passenger and not a required crewmember.
Pilot A would perform aircraft detailing services for Pilot B’s aircraft. Pilot A and B would determine the fair market value of the aircraft detailing service and that amount would applied to Pilot A’s pro-rata share of the operating expenses of the flights shared by Pilots A and B.
Based upon this first scenario, the FAA answered the following questions:
Question 1: Does Pilot A’s bartering of services in exchange for Pilot A’s pro-rata share of the operating expenses of a common-purpose flight with Pilot B comply with 14 C.F.R. 61.113(c)?
Question 2: May Pilots A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A’s pro-rata share of the operating expenses for the common-purpose flight?
Question 3: May the fair market value of the aircraft detailing services be applied prospectively to Pilot A’s pro-rata share of operating expenses for future/successive common-purpose flights with Pilot B?
Question 4: What documentation, if any, would Pilots A and B need to evidence their compliance with 14 C.F.R. § 61.113(c) in this scenario?
In the second scenario provided to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for rental of an aircraft owned by Pilot B for personal flights operated under 14 C.F.R. Part 91 and in which Pilot A would be the sole occupant. The FAA was asked to assume for purposes of the request that the aircraft being rented is a type certificated aircraft with a standard airworthiness certificate and is not subject to the Truth-in-Leasing requirements of 14 C.F.R. § 91.23.
Question 5: Does Pilot A’s bartering of services in exchange for rental of Pilot B’s aircraft violate any regulations administered by the Federal Aviation Administration?
Question 6: May Pilot A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A’s rental of Pilot B’s aircraft?
Question 7: May the fair market value of the bartered aircraft detailing services be applied prospectively to Pilot A’s future/successive rental of Pilot B’s aircraft?
Question 8: What documentation, if any, would Pilots A and B need to evidence the barter arrangement under this scenario in order to comply with any applicable regulations?
Although the FAA’s answers were short and sweet, without any in-depth analysis of the regulations’ application to the factual scenarios, at least the FAA has provided some guidance regarding the viability of barter transactions in connection with aircraft use, rental and expenses. As with most situations when dealing with the FAA, having a paper trail to document your compliance is a good idea. Thus, if you are going to enter into a barter arrangement, make sure you have something in writing that not only explains the barter transaction but also substantiates the fair market values upon which the barter transaction is based.
Thanks to the FAA’s guidance, aircraft owners and pilots now have another option for aircraft use and rental. And that’s a good thing.
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