Art law Controversies United Kingdom

Art world up in arms at “light bulb” law

Could the ruling on light works and higher import taxes face a legal challenge?

A bit dim: the ruling suggests that tax officials may have little idea what art actually is

london. The art world has reacted with astonishment to a European ruling which has determined that works by Bill Viola and Dan Flavin, when disassembled, should not be considered works of art for tax ­purposes. Dealers warn that the decision will inhibit the European art trade.

The ruling, which is binding on all EU countries, overturns decisions taken in British and Dutch courts, was made by the European Commission (The Art Newspaper, December 2010, p59) and means that galleries and auction houses will be charged full VAT—as opposed to the much lower import duties which apply to art—when importing disassembled works made from components such as light fittings or household appliances into Europe. For example, UK trade will have to pay 20% tax rate instead of 5%.

This has led to a bizarre situation. While customs authorities can classify works as “wall light fittings” rather than art when considering the import duties (so charging the highest tax rate), the overall tax value can still be based on the works’ value as “sculpture”—inevitably much more expensive than the value of a cheap light fitting.

“The logic does not hold up,” said Sandy Nairne, director of the National Portrait Gallery. He served as an expert witness in the case on which the decision centres. Haunch of Venison gallery had appealed a UK Customs decision to classify six disassembled installations by Bill Viola and a light installation by Dan Flavin as light fittings instead of art. The case, which was heard by a UK tax tribunal in 2008, ruled in Haunch’s favour—and it is this decision which the EC has overturned.

In his testimony, Nairne argued: “We have a history of well over 100 years of art that can appear to be made of ordinary things that have other uses. It is very common for sculptures to be shipped in parts. The fact that the work in transit is not like a work of art could apply to a large bronze figurative sculpture—an Anthony Caro piece would not necessarily travel as a whole sculpture in a single box.” He added: “The question of ‘is this the sculpture?’ is not to do with what it looks like when it is in customs but what it looks like assembled.” Referring to works by Viola and Flavin, Nairne said: “You can’t just take light bulbs out of a household appliance store and make a work of art. The artists specified every minute part of the work’s construction.”

One way around the ruling could be for importers and artists (or their estates) to agree an estimated value of the sculptures at the cost of replacing the component parts. Nairne, however, does not believes this is a satisfactory solution. “Even if works are shipped at replacement value, it still doesn’t change the question on which the ruling turned—which was about a factual definition of what art is.”

“This decision makes no sense,” agreed Matthew Slot­over, co-director of London’s Frieze art fair. He suggested that a possible solution could be to import the components of light sculptures as light fittings, but then ascribe value based on the authenticating certificate which customarily accompanies a work of art.

While the European ruling can be challenged in the courts of any member country, it remains to be seen whether any gallery or collector will embark on this expensive legal process given the current financial climate. “Now is not necessarily the time when this ruling will be successfully challenged,” said David Maupin, whose New York gallery Lehmann Maupin represents several artists who work with materials such as neon, film, photography and video.

Christopher Battiscombe, director of the Society of London Art Dealers, describes the ruling as “regrettable” and said it could hinder the EU art trade. However, he added that the society does not have the funds to support an appeal financially, although it would be prepared to support it in other ways.

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Comments

13 Feb 11
16:48 CET

DONALD RICHARDSON, MOUNT BARKER

To Fanny Martin - The purpose of the book is precisely to try to answer the kinds of question you raise in your first post. Why don't you want to know the answers? If you want to debate, great. Check my website - donaldart.com.au

24 Jan 11
14:55 CET

FANNY MARTIN, TOULOUSE

Got to say To Donald Richardson, a book that gives me the solution to what art is and is not is definitely not on my reading list. I could have a chat with you about it, a debate - and maybe that's what your book offers, but the title, for me, is awfully off-putting. Surely forum etiquette forbids self-promotion.

24 Jan 11
14:55 CET

FANNY MARTIN, TOULOUSE

Whatever the best economical solution may be - being taxed higher on cheaper goods or lower on more expensive objects (artworks) - the issue lays in authority to recognise art as art. Is it down to the artist, the institutions or the public? Here a court ruling decides that whatever the final destination may be, when looking like a collection of bulbs, a potential museum-worthy object is just a collection of bulbs. When does art become art? In its conception - concept - in its parts - that would have been brushes and colours in the old days - or in its final, exhibited stage? We're talking about disassembled artworks, so actually past the concept and material stage. They were once deemed proper artworks. Aren't they always, whatever you might think about contemporary art? Again, who's to say? Do you really want to leave it up the the EU court? You might not care that much about Dan Flavin, but what would you do if the same ruling suddenly extended to James Turrell?

21 Jan 11
20:4 CET

ROBERT LABOSSIERE, TORONTO

Does the decision suggest a new wave of European protectionism? The tax applies only to works imported from outside the EU, and the decision is from the European Commission. In effect, the EC is saying to UK gallerists: if you are going to import non-European work for sale, you are going to pay 20% of your profits to us. If so, what kind of retaliation might be expected from the US import tax man? Colleen Thornton, of Alexandria, VA commenting on an earlier story suggesting, imho, a very good solution: “Have the artists construct their work from elements bought within the EU, and the galleries can deduct the VAT as part of their business’ operating expenses. Why bother to import commercial products as ‘art’ when they can be sourced locally and then assembled into ‘art”? Problem solved.”

21 Jan 11
15:27 CET

BOB BURGESS, COLUMBUS OHIO

As an experimental artist, my work is usually misjudged. What's the difference if the judge is an art administrator or a taxman? Art will always be it's own beast. Go ahead and try to control or restrict it. You'll be sorry!

20 Jan 11
14:58 CET

DONALD RICHARDSON, ADELAIDE

I'll blow my own trumpet. My new book, 'What Art Is - and Isn't' is devoted to this problem and gives the solution. Check it out on Amazon or Barnes and Noble - or email me.

20 Jan 11
14:59 CET

JOHN WALKER, AUSTRALIA

Joking. It is not at all clear. The report states that the works will be taxed as 'non art ' (at the non art rate of 20%) but the amount of the tax levied will be based on their works value as 'art' . The EU claim is that the works simultaneously have the legal status of 'non art' and the legal status of 'art'. That is a self referential paradox ( like the famous paradox of "the Cretan who tells you that ALL Cretans are liars".) In the real world legal judgments must collapse to a binary ending : True OR False. So the Question is, it 10 dollars worth of light bulbs taxed at 20% OR is it million dollar artwork taxed at 5%- the answer cannot be both. I am glad that I do not live in the EU!

20 Jan 11
14:59 CET

JOHN WALKER, AUSTRALIA

Actually can the Art Newspaper (or anybody else) answer the question: IS the amount of tax levied to be ,calculated on their market value as common garden,'light-bulbs' OR on their market value as a valuable art work?

19 Jan 11
21:31 CET

JOEKING, KINGS TOWN

People are not reading the verdict ... '...when disassembled...' isn't cheaper to import light bulbs?

16 Jan 11
19:48 CET

PHIL WHITTAKER, SINGAPORE

Only the EU could find logic in taxing something at its art valuation level, and at the same time classifying the work as a commodity. Another classic EU ruling!

14 Jan 11
18:8 CET

FANNY MARTIN, TOULOUSE

Echoes of the Brancusi vs. United States affair: what is art? Is it what the artist calls art? the critics? the market? the audience? a court ruling? And what's in store for the legal, aesthetic and social status of street art, body art, food art and whatnot?

14 Jan 11
17:42 CET

ALEXANDRA YORK, NYC

Love it! As an art critic, I claim that it wasn't art to begin with, so this is divine justice from an unexpected place, taxes on what it actually is: a commidity. Wonderful and funny--

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