Acquiring a yacht is one of the most special investments one can make. Yachts unlock dreams made of holidays in exclusive creeks worldwide, distant
from the hustle and bustle of crowded resorts and close to secluded and exclusive beaches and rivieras. Yachts are also a tool to signify one’s social
position. Notwithstanding this, like any other investment, it requires careful planning to minimise inefficiencies and consequently reduce costs. Contrary to
other assets, such as immovables, whose value increases with time, yachts tend to depreciate quickly and are subject to high maintenance costs. For this reason, yacht owners aim to mitigate this financial burden. To mitigate such risks and offset, even partially, the investment made, owners
tend to opt for mixed-use of the yacht by chartering her to third parties. Although this is a possible solution, there are also some negative aspects
connected with yacht chartering:
- Impossibility of using her during peak season
- Use of yacht by third parties who might not treat her as their own to the detriment of her value
- Yachts would generally need to be stationed in the same part of the world to minimise relocation costs
- Engagement of third-party advisors and fiscal representatives to assist with VAT and other related tax compliance matters
- Increase in insurance costs related to the commercial use of yachts
- Increase maintenance and refit costs to ensure the yacht could be registered as commercial and be compliant with the commercial yacht code
Chartering, however, is not the only option to recover costs related to acquiring the yacht. In fact, over the last few years, fractional ownership has proven to be a valid alternative to chartering.
Yacht fractional owners own a share or portion of a yacht jointly with other persons who can use the same depending on the terms and conditions of the ownership agreement between all parties. Contrary to a time-sharing arrangement, which grants a right of use only for a limited period, fractional ownership gives a title of ownership (although in common with other persons) and a return of price in case of sale to third parties. Fractional owners could either acquire a share in the yacht directly or indirectly through the setting up, together with other persons, of a company that will be the yacht’s registered owner. The latter option could provide direct and indirect tax efficiencies if adequately structured. Fractional ownership allows owners to use the yacht for a maximum period, which generally varies between 3 and 6 weeks. Fractional owners are also entitled to charter or sub-lease the yacht to third parties during the period assigned to them or sell their share should they not be interested in the continued enjoyment of the asset. Maltese law also allows the possibility of setting up shipping cell companies where the patrimony of each cell is separate and distinct from other cells, thus giving the shareholder an additional layer of protection and flexibility in structuring their ownership as the fractional right would be assigned to the cell.
People who know from the outset they will only be using the yacht for a few weeks a year and want to avoid dealing with third-party operators such brokers,
marina agents, seafarers, and tax advisors would do well to consider opting for a fractional ownership arrangement. These functions would be delegated to a yacht manager by paying a yacht management fee. Such a manager would be in charge of dealing with third parties concerning all of the above matters.
Fractional ownership is a formal arrangement meant to regulate the fractional use of yachts amongst more people by giving certainty on the rules to be adopted and avoided or at least reducing conflicts with service providers and between the fractional owners.
This depends on and is usually proportionate to, the investment made in the yacht.
- Financial: one significantly saves the total purchase price by acquiring a portion of the yacht.
- Saving Time: time spent coordinating the yacht’s management, maintenance, crew employment-related matters, berthing, insurance, and fiscal issues, amongst others.
- It is easier to dispose of the interest in the asset.
- Possibility to change yachts should the fractional owner not be interested in
that model. Some fractional ownership organisations even maintain fleets based in different geographical locations.
- Sharing the yacht with other people, the impossibility to personalise the yacht and choose particular crew members.
- Use of the yacht is possible during specific periods only and restricted to particular geographical locations. Suppose the yacht is always based in
the Mediterranean. In that case, a user cannot decide unilaterally to move her to the Caribbean to return to the Med region again unless most owners
(based on a contract of use) choose otherwise.
- The yacht might be unavailable during certain parts of the year if already booked by other fractional owners or under maintenance.
Regarding the EU VAT legislation, supplies of goods or of services made by a taxable person acting as such in return for consideration within the territory
of a Member State are subject to VAT unless specifically exempted. As such, transactions that cumulatively meet these conditions are said to fall within
the scope of EU VAT, whilst transactions that fail to meet any of the requirements are classified as falling outside the scope of EU VAT, which is to be disregarded for VAT purposes. A transaction deemed to fall within the scope of VAT has then to be methodically analysed to determine its correct VAT treatment, most significant, where it is to be taxed, whether an exemption applies and if not, who would be the person liable to pay the VAT to the tax authority. It is in the background of these concepts, that the numerous transactions contained in fractional ownership, from ownership to management, need to be assessed to establish the appropriate VAT treatment and resulting implications.
As a point of departure, ownership, per se, even if partial and undivided, does not render the owner a taxable person for VAT purposes unless he carries out
an economic activity. In the fractional ownership set-up, the owners would not be carrying out an economic activity since each would be using the asset (the yacht) privately. Selling a fractional share would likewise fall outside the scope of EU VAT since the seller (the fractional owner) is not a taxable person for VAT purposes in that he is not in the business of selling or trading in shares in yacht ownership, that is, not carrying out an economic activity. The yacht’s purchase, management fees, operational and maintenance services necessary for the functionality and upkeep of the yacht all appear to be supplies of services subject to VAT. As a rule, the VAT incurred by the management company will be deductible to the extent that it is attributable to its
taxable supplies, namely the management fees and recharges claimed from the owners in proportion to their fractional share. The owners, however, have no right of deduction, and the VAT incurred should constitute an irrecoverable cost. Given that in the fractional ownership model, expenses are shared; the VAT cost would thus be less burdensome when compared to full ownership of a yacht.
Fractional owners need to understand if they want the yacht exclusively for themselves or not and whether they are willing to share it with strangers and be able to use it only for specific parts of the year.
On the other hand, all those aspects concerning her maintenance would be delegated to third parties, thus rendering matters easier for the end user. Lastly, fractional ownership would permit the benefit of a yacht at a reduced price, and if one uses a yacht for a few weeks a year, savings would be much higher than the ones made under a charter option.