The owner of the Cheltenham home featuring Banksy’s ‘Spy Booth’ mural told the BBC yesterday (23 August) that the £1 million work had been accidentally destroyed during repair works undertaken on the property. “I just want people to know that I wasn’t trying to sell it and it wasn’t taken off deliberately,” David Possee said.
Cheltenham Borough Council plans to investigate.
Read our original blog post on the mural’s disappearance here.
Banksy devotees in Cheltenham are mystified by the apparent removal of one of the graffiti artist’s murals from a local Grade II-listed house.
The only clue as to what might have happened to ‘Spy Booth’, which depicts three secret agents in trilbies and trenchcoats “snooping” on a man in a phone box with the aid of listening devices, came on Saturday (20 August). Pictures on social media appeared to show scaffolding and tarpaulins erected around the mural. The sound of machinery was also said to be heard and now all that remains is a pile of rubble beneath the wall of the house previously emblazoned with Banksy’s work. Continue reading
Police have arrested two men in Folkestone in connection with the theft of a copy of Banksy’s graffiti artwork ‘Art Buff’, The Guardian reports.
The original piece was the subject of a groundbreaking legal dispute in 2015. Dreamland Leisure Limited, the tenant of the property on which the mural appeared in 2014, cut it out of the wall and sent it to a New York gallery for sale. Determined to save ‘Art Buff’ for Folkestone, arts charity the Creative Foundation took legal action against Dreamland on the advice of specialist art lawyers Becky Shaw at Boodle Hatfield and Tim Maxwell now at Charles Russell Speechlys. Continue reading
Scottish artist Peter Doig appeared in court in Chicago on Monday (8 August) in an “extremely rare” authenticity case in which he denies painting a desert landscape potentially worth millions of pounds.
Doig is being sued for US$5 million (£3.8 million) by the owner of the painting, former correction officer Robert Fletcher, who accuses Doig of falsely denying that he is the artist responsible for the work. Continue reading
What is it?
The Cultural Property (Armed Conflicts) Bill (the “Bill”) was announced in the Queen’s speech and received its first reading in the House of Lords on 19 May 2016. The first draft of the Bill was published the next day.
The Bill, if passed, will ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (the “Hague Convention”) and allow the UK to formally accede to its two Protocols. The policy objective for this accords with the Government’s intention to stand on the global stage as a protector of cultural property, by helping to prevent artefacts being looted from conflict zones, objects being obtained illegitimately or items being removed (for example by displaced peoples) from their country of origin whilst a country is occupied by the forces of another.
The Culture White Paper, the second white paper of its kind to set out the government’s approach and policies in relation to promoting art and culture (the last of which was published over 50 years ago), states that it will “work with partners globally to protect world heritage”. This will be achieved, in part, by signing the Hague Convention and also by creating a new £30m Cultural Protection Fund, which we wrote about here in the context of Islamic State militants destroying cultural property in the Middle East.
What laws will be introduced once the Hague Convention is ratified?
To protect cultural property in the event of armed conflict, the new legislation will create the following offences:
The legislation will also introduce two more concepts:
Offence of dealing in cultural property and implications for the art market
The offence of dealing in unlawfully exported cultural property will carry a maximum seven-year jail term. This should be a significant warning to any art dealers or auction houses whose activities might be caught by this offence. Those working in the art world now have a greater incentive to make sure effective due diligence is carried out on the origin and provenance of items.
However, there have been concerns that the definition of ‘cultural property’ as set out in the Hague Convention is too vague, and could result in legitimate activities being caught by the offence.
The Hague Convention defines ‘cultural property’ as:
“movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above”.
The Chairman of the Antiquities Dealers’ Association (ADA), Chris Martin, said that this definition is too unspecific, and that loose interpretations of cultural heritage of every people could “unintentionally blight artworks and objects that have nothing to do with this issue”.
Martin suggests that a definition taken from the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage defining cultural property in terms of “outstanding universal value“, would be less restrictive to dealers.
Because the Bill is still being finalised and must pass through other legislative stages in Parliament before it becomes law, it is possible concerns such as these may be dealt with in new drafts.
However, in its current form the Bill is an admirable attempt to cement the UK’s place as a champion for the world’s cultural heritage and should be applauded.
Fred Clark is an Associate at Boodle Hatfield and part of its art law group.
Auction house and third party guarantees are a hot topic at the moment, with Bloomberg reporting that, for the 2015 New York autumn sales, $1 billion – approximately half – of the $2 billion total value of lots were already sold before the “paddles are even raised” (Bloomberg, 29 October 2015). On 9 September 2015, Sotheby’s filed a Form 8-K with the US Securities and Exchange Commission confirming that they had entered into an arrangement with the Estate of A. Alfred Taubman, their former chairman, to sell art from his collection, which was estimated to be worth in excess of $500 million. The arrangement provided that “Sotheby’s agreed to provide an auction guarantee for the collection at approximately that level”. Continue reading
The country has decided to leave the EU. What might this mean for the arts? The Government is obviously going to have hugely competing priorities, but it is important that the art market now comes together to ensure their voice is heard.
The immediate economic aftermath will clearly have a significant impact on all aspects of the art market for some time, including on the current auction sales, as well as consignments to future sales in the next few months.
Our art law specialists consider the possible longer term impact of the result on the art market, in terms of museum and arts funding, the future of the Artist’s Resale Rights, possible changes to export licenses, and to import VAT. There is significant potential to achieve meaningful reform to maintain and enhance the UK’s competitive advantage in the art market.
Funding
Becky Shaw, a solicitor from Boodle Hatfield’s art law team, said: “EU funding for the arts runs into millions of pounds a year, and has contributed to many important projects. Whilst the UK government will continue to support the arts, it is not unreasonable to expect a complete reassessment of how the arts in the UK are to be funded in the longer term.”
Artist’s Resale Rights
Artist’s Resale Rights (ARR) may now come under the spotlight. Supporters of ARR describe it as the most significant new right for visual artists in recent times, giving artists an ongoing stake in the value of their work. Its critics argue, however, that ARR puts London at a disadvantage to its competitors – such as New York and Hong Kong – that do not levy ARR on sales.
Tim Maxwell, a partner at Boodle Hatfield, said: “It would not surprise me if those in the art trade now push for a renegotiation of ARR to better compete with New York and Hong Kong. Artists themselves are likely to oppose changes to ARR that could see their royalties reduced.”
Export licenses
The current export license regime was introduced in 1993 by an EU regulation, replacing the UK’s previous licensing regime, and many important artworks and artefacts have been ‘saved for the nation’ through the export licensing system.
“Critics have long seen the regime as an unwelcome administrative burden and additional cost,” says Becky. “They also point to the fact that the rules vary greatly in different EU countries causing difficulties for galleries and buyers. This may be an opportunity for reform.”
VAT import duty
Tim says: “VAT import duty can be a headache for many UK art dealers, galleries and auction houses. Works imported to the UK from outside the EU are liable to a 5% import VAT charge, whereas works imported from the EU are exempt from import VAT. Calls to abolish import VAT altogether may now become louder in an attempt to encourage more of the international market to move to London particularly from other EU countries.”
As part of Budget 2016, the government announced a few changes to the taxation of objects of national, scientific, historic or artistic interest. Geoffrey Todd, Partner, in the private wealth team at Boodle Hatfield explain the development.
What is Estate Duty?
Estate Duty was introduced in 1894 as a tax on property passing on death or on lifetime transfers. It was replaced by Capital Transfer Tax in 1975, which was in turn replaced by the current inheritance tax (IHT) from 1 August 1984.
Conditional exemption from IHT can be claimed in respect of property that is of national, historic or cultural pre-eminence. The owner of the property must give undertakings agreeing to meet certain conditions, including for example allowing public access to the property for a certain number of days and taking steps to preserve and maintain it among other things. In return the tax chargeable on heritage property is postponed indefinitely. There was a similar exemption for Estate Duty given under s.40 Finance Act 1930. The conditions then were slightly less onerous than they are today, requiring the property to remain in the UK and access to be allowed for specified purposes. There remain some legacy Estate Duty provisions in relation to property exempted before March 1975 and it is in relation to these that the law is changing.
What was the position and how is it changing?
A recapture charge can be triggered by certain events so that conditional exemption from Estate Duty or IHT is lost and tax becomes payable on the exempted property. These events include: (1) a sale or transfer during the owner’s lifetime where the undertakings are not renewed; (2) a breach of the undertakings; or (3) a transfer on death where the undertakings are not renewed.
In relation to the lifetime chargeable events at (1) and (2), HMRC can choose whether to levy tax at the rate applicable at the time the property was exempted (the Estate Duty rate), or at the current IHT rate. Previously in respect of (3), where the property passed on death, the Estate Duty exemption would crystallise and become absolute on the death of the owner, meaning effectively that it was washed out. If the subsequent owner of the property applied for and was granted IHT conditional exemption, then the IHT rate would apply to the property on a subsequent sale or breach of the conditions. The property was then taxed at the IHT rate, despite being exempted from a potentially much higher Estate Duty originally.
As of March 16 2016, the legislation has been amended so that the Estate Duty exemption does not become absolute on the death of the owner. As with events (1) and (2), HMRC can now choose to apply either the current IHT rate or the Estate Duty rate applicable at the time of the exemption, on a subsequent sale of the property.
What might be the significance for owners of these objects?
The change could increase the tax charge on the sale of inherited heritage property by as much as 40%. For example, Mrs A died in 1950 passing a Manet painting to her son Mr A who was then granted a s.40 FA 1930 Estate Duty exemption. At the time Estate Duty was applied on the painting at a rate of 80%. Mr A dies on 17 March 2016 and the Manet is inherited by Miss A. Even if Miss A gets IHT conditional exemption on the painting saving her from the immediate IHT charge, if she subsequently has to sell the Manet or wants to give it to her children who do not want to renew the undertakings, she will potentially be liable for an 80% tax charge rather than the 40% charge that would have been applicable previously. Those inheriting property which had been subject to Estate Duty at a rate higher than 40% will now either have the higher rate of tax to pay, or will be subject to the more onerous conditions applied under IHT conditional exemption rules while continuing to have the higher rate of duty hanging over them, where previously they had thought would be washed out (and in some cases halved) on their death.
HMRC have said that the changes will apply to deaths on or after 16 March 2016, and the old rules will apply to deaths before that.
Are there any other changes being made to Estate Duty and Inheritance Tax?
There was previously no provision to account for an object exempt from Estate Duty which had been lost. The definition of loss includes theft and destruction by fire. Following Royal Assent of the Finance (No.2) Bill 2016, if such an object is lost a charge can be levied, unless HMRC agree that the loss was outside the owner’s control. If HMRC is notified of a loss before Royal Assent is given, the lost item will not be subject to the amended legislation.
Additionally, museums and public galleries which had lost their tax exempt status under the terms of Schedule 3 IHTA 1984 due to their status as independent charitable trusts, will be reinstated to be within the scope of these exemptions. The exemptions include, for example, tax free private treaty sales under the douceur arrangements and it is hoped that reinstating these tax benefits will encourage gifts to public collections. There will also be a power to enable the Treasury to add further national institutions to this class.
Did this announcement come as a surprise?
The amendments were not anticipated as there had been no previous consultation in relation to the changes. HMRC comment in the Policy paper that the legislation was altered to ‘correct a technical issue with the current legislative framework’.
Does this fit in with the government’s other policies on tax avoidance and evasion?
The changes do not appear to have been brought in as part of the government’s clamp down on tax avoidance or evasion in the 2016 Budget. The purpose of conditional exemption was, and continues to be, to assist in preserving the cultural heritage of the nation and avoid objects or places of importance being sold to pay off death duties. Arguably, any tax that has been avoided under the conditional exemption rules has been chiefly in aid of this purpose.
The reasoning for the changes given by HMRC, that they are corrections of the current legislation, is understandable in relation to lost conditionally exempt property, and to the rectified exemptions given to museums and public galleries now operating as independent charitable trusts. It is less easy to see as a “correction” the change to the allocation of tax rates for s.40 FA 1930 exempt property following a transfer on death, which has been in place for decades. While the changes to the legislation are workable for those who have inherited s.40 FA 1930 exempt property, as far as they are able to claim IHT conditional exemption on the property, they are likely to make it much less appealing to trigger the recapture charge by disposing of inherited property where the initial Estate Duty exemption was over 40%. With Estate Duty historically going as high as 80%, the changes could result in a significant increase in the potential tax burden for those individuals who are in possession of s.40 exempted property. HMRC estimate the number of those who may be affected to be as low as 2,000, however, and so these changes are likely to have a negligible impact on the Exchequer.
This article originally appeared in LexisNexis Legal Analysis.
Guy Sainty, of Stair Sainty Gallery, comments on our article What might Brexit mean for the art market?
I read your piece on the EU with some interest as I raised the issue of import VAT with the Society of London Art Dealers a few months ago.
The present system means that anything we bring in from the EU is exempt from import VAT, while anything imported from outside the EU is liable to the 5% import VAT. Because it is a burden to pay out for works of art a dealer may have to keep in stock for years and only recover on export within a certain period, these works are kept either in bond, or on Temporary Import (TI). If in TI there is quite a burden of paper work and a limit on how long it can remain on TI and a financial upper limit on the total that a dealer can have on TI at any one time. One can deal with this with a small number of works but our gallery, for example, has imported about 90% of its inventory from the EU and it would be an almost impossible bureaucratic and financial burden to have to either pay the import VAT or hold the majority of our inventory on bond or TI. If the work in question is consigned on a commission basis to a UK dealer, then import VAT is likely to be significant proportion of whatever the dealer to whom the work is consigned might expect to earn from the sale – as the VAT is due upon import, this may make consignment sales unaffordable.
If the present import VAT regime is maintained for works of art, the entire trade in non-British art in the UK would have to seriously consider exiting the country – while the major auctioneers would be likely to relocate sales of works of art from the EU either in the country of origin or in the US. At present there is an indication in an auction catalogue where a work has been imported and VAT is due; this is generally considered a negative for buyers. If everything brought in from the EU has to be on TI this would be a very substantial burden on the auction houses.
The government should instead consider whether the present administratively burdensome system of import VAT on works of art produces sufficient revenue to justify maintaining it if the UK leaves the EU. The result of maintaining import VAT may be to drive the market out of the UK with a net loss of revenue; on the other hand, if it is abolished, the UK art market would benefit enormously as even more of the international market would move here. Many EU art dealers sell to clients outside the EU and if there is no UK import VAT there would be a direct incentive to relocate their businesses in the UK. In the US, auctioneers and dealers must charge sales tax to in-state buyers and, when they have representative offices in other states, to buyers resident in those states as well. When purchasing a work of art at a US auction that is intended for export, the process of reclaiming or not paying sales tax – particularly for private buyers as opposed to dealers who may have out of state resale numbers – is another administrative burden that could be avoided entirely if the sale was made in the UK. There is no US federal import tax on works of art and US buyers importing works of art are supposed to declare State “Use Tax” but in practice this has been hard to enforce.
EU exit coupled with the abolition of import VAT on art could have a considerable net positive effect on the London market. This is not only because of growth in the London art market but because of associated spending on hotels, restaurants, and with other retailers. Furthermore the US regulations on the sale on works of art containing ivory, tortoiseshell, certain woods, feathers, etc, have made whole categories of art unsalable in the US – even netsuke, where much of it is made from 50,000 year old Mammoth ivory excavated in Siberia, is subject to this ban as are medieval ivories whose provenance has been known for centuries. Some states have banned all trade even for artworks that have been in the US for decades or more and are hundreds of years old. New York State now bans any trade where more than 20% is made from some material that is taken from an animal, plant or tree on the protected list, irrespective of its age. This trade could and probably will move to London, especially if import VAT is abolished.
BREXIT would also affect the regime that deals with the export of art works. No two European countries have identical regulations on the export of works of art. While all works leaving the EU over a certain value (depending on the category, and in some countries irrespective of the value) require an export license, these licenses depend on whether the work of art has been given, or qualifies for, a certificate or attestation of free circulation. Some EU countries have categorised works of art as unexportable (thereby depriving the owners of much of the value) or have imposed restrictions which give the state the right to hold up the export until the funds can be raised to purchase it. While a total ban on export might be necessary in the developing world where there are very limited resources for the maintenance of the archaeological or artistic heritage, the imposition of such absolute bans by European states is actually a disincentive to collect and bring works back that have been sold before these bans were imposed. This system is not only poorly devised and managed but it has recently become clear that some countries may not even consider such certificates as binding and may attempt to revoke them later if the officials charged with issuing such certificates make an error. A further complication for British based dealers under the present rules is that the sterling value at which export rules apply varies as the exchange rate between the pound and the euro fluctuates. Although BREXIT will mean that works imported into the UK will have had to have had a definitive EU export license, this may in practice be an improvement as only UK law, rather than both UK and EU law will apply.
As for museum funding this is a real red-herring. The decisions on the funding of British arts institutions should surely be made by the democratically-elected UK government, rather than in Brussels. The EU arts subsidies are a small proportion of total arts funding and even smaller as an amount of the net savings on the EU budget. The real point about arts funding is that it needs a complete reassessment of how it is to be done in the future, rather than whether UK arts institutions should have to continue to go cap in hand to Brussels.
Guy Sainty, of Stair Sainty Gallery
Last week we reported the exciting news that an ambitious new art hub, Cromwell Place, will be opening in South Kensington in 2018. We caught up with John Martin, the gallery owner and co-founder of Art Dubai who has spearheaded the project, to find out more.
Art Law & More 