It may seem that tributes and art are two antagonistic worlds. The latter is the embodiment of beauty, of the best that human beings can think and create. In the words of Juan Antonio Pérez Simón, great collector and owner of the JAPS Foundation, the ““Art is the highest form of communication between human beings, a form of communication that transcends borders and renews our faith in humanity.”. For their part, taxes, by constitutional definition, are a manifestation of the duty to contribute to the maintenance of public expenses according to the economic capacity of each citizen.
Despite the above, art and tributes have a lot in common, but it can be said, without ambiguity, that this relationship is a great unknown. For this reason, Lefebvre has published the book Taxation of the Art Marketwhich I have had the satisfaction of coordinating and which was born when ARCO, the Madrid Contemporary Art Fair and one of the main ones on the international circuit, was held.
At this time, the regulation on the matter is contained in the Law on the tax regime of non-profit entities and tax incentives for patronage; the Spanish Historical Heritage Law (PHE), as well as the regulations governing each of the taxes.
It is true that the achievements achieved are not enough, but, gradually, we are getting closer to the regulations of our closest environment that allow us to comply with art. 46 of the Constitution, according to which the “Public powers will guarantee the enrichment of the historical, cultural and artistic heritage of the people of Spain and the assets that comprise it, whatever their legal regime and ownership.“.
Regarding the content of the precept, I am interested in highlighting two issues. The first, which guarantees the enrichment of artistic heritage in a broad sense, both public and private. The second, the inclusion of administrative action within the guiding principles of social and economic policy. For its application, public powers use promotion action, since the enrichment of said heritage is achieved by providing incentives, in a special way, to its owners.
One of the vehicles of this action are taxes, on the one hand, promoting citizens’ activities through the establishment of tax benefits or preventing their realization, if they are contrary to the public interest, subjecting them to tax, as occurs with the tax. to export.
Since the approval of Law 30/1994, of November 24, on Foundations and Tax Incentives for Private Participation in Activities of General Interest, there is, in our country, a special tax treatment of patronage, which is essential in the world Of art. Until then, we only found it, exclusively, with respect to the assets that make up the PHE.
At this time, the regulation on the matter is contained in Law 49/2002, of December 23, on the tax regime for non-profit entities and tax incentives for patronage (LM); Law 16/1985, of June 25, of the PHE (LPHE) and the regulations governing each of the taxes.
As an example, our tax system establishes incentives in Personal Income Tax, Corporate Tax and Non-Resident Income Tax (IRNR), such as the donation of works of art to protected non-profit entities or the establishment of a right of usufruct in their favor (in this way you do not have to part with them to enjoy it), in addition to other forms of patronage.
The increases or decreases in assets revealed on the occasion of making this type of donation are not subject to tax, neither in the aforementioned taxes nor in the Tax on the Increase in the Value of Urban Land, in the event that real estate is donated.
Also those related to the promotion of investments in assets of cultural interest, applicable to taxpayers of personal income tax and some of the IRNR. Firstly, the acquisition of PHE goods, carried out outside our territory for their introduction into it.
Secondly, the conservation, repair, restoration, dissemination and exhibition of assets, property of taxpayers, that are declared of cultural interest in accordance with the regulations of both the PHE and the CCAA.
Finally, the rehabilitation of buildings, the maintenance and repair of their roofs and facades, as well as the improvement of infrastructure owned by them located in the environment that is the object of protection of Spanish cities or architectural and archaeological complexes, as well as of the properties declared World Heritage by UNESCO located in Spain.
With regard to Wealth Taxes (IP) and the Solidarity Temporary of the Great Fortunes, its regulatory regulations contemplate certain objective exemptions in relation to the assets that make up the PHE or the CCAA, certain objects of art and antiques or the works of artists, as long as they remain in their heritage.
In the Inheritance and Donation Tax (ISD), state regulations establish a reduction to be made in the tax base, both in acquisitions cause of death as in donations of goods exempt from the IP and that are members of the PHE or the CCAA.
Moving on to analyze VAT, its regulatory law distinguishes between art objects, collectibles and antiques. The list of the former is very extensive and includes paintings, engravings, original sculptures, tapestries, unique examples of ceramics, enamels and photographs. Postage stamps and collections of historical, archaeological or numismatic interest are collectibles. Finally, objects that are more than 100 years old and are not included in the previous categories are considered antiques. For them, the application of a reduced rate to their imports is contemplated in order to favor them and the consequent enrichment of the cultural heritage of the EU in general and of Spain in particular.
It also establishes a special regime for businessmen who, on a regular basis, carry out deliveries of these goods, provided that they have been acquired or imported for subsequent resale. The organizer of sales at public auction has this condition as well, when acting in his own name under a sales commission contract. The purpose of this regime is to prevent goods from being subject to double taxation.
To end the state tax system, it is necessary to highlight that certain Autonomous Communities, in use of the regulatory powers in the transferred taxes (IRPF, IP, ISD and the Tax on Property Transfers and Documented Legal Acts), have established specialties in this ambit.
Likewise, we find a special treatment of works of art in local tributes. The Law regulating Local Treasury establishes the exemption from the IBI of certain assets. The IAE Rates include some headings that are related to the world of art, among which it is worth mentioning galleries and those relating to painters, sculptors, ceramists, artisans, engravers and similar artists, as well as restorers of works of art.
In relation to the Tax on Constructions, Installations and Works, an optional bonus is contemplated in favor of constructions, installations or works, which are declared of special interest or municipal utility due to cultural or artistic historical circumstances.
Finally, mention the dación in payment of goods to settle debts of certain taxes and that was introduced in our system by the LPHE and developed by the General Collection Regulation.
Now, the subject matter of study is not exhausted with the presentation of all these incentives, but requires an analysis of all the taxes of the Spanish tax system, although highlighting the most relevant aspects that affect art and the subjects affected. for the same.
The book answers all these questions. Taxation of the Art Marketwhich begins with a series of Preambles, as a detour or digression before entering into the matter, according to the second meaning of the term of the Dictionary of the RAE. The first corresponds to Javier Lasarte, who, with his characteristic fine humor, raises some of the most controversial questions regarding the relationship between art and tributes. The second is by Pilar Citoler, a great collector of contemporary art, about the latter’s past and present. The third, from the pen of Genoveva Dancausa, focuses on economic aspects, while the fourth, by Sergi Garzón, brings us closer to those new works of art that are NFTs. They end with those dedicated to the legal regime of relations between artists and art galleries, by Pablo Díez and Eduardo Ferreiro.
The book is structured in 17 chapters, which begin by giving information on a series of previous concepts, such as what we should understand by art and its actors, protected non-profit entities or tax incentives as a promotion technique. They continue with the study of the major state tax figures, as well as local taxes and customs. The last chapters are dedicated to the regime of protected non-profit entities and the different incentives provided for in the LM, ending with a reference to the dation in payment of PHE assets to settle tax debts.
Its pages do not attempt to deal exhaustively with all of these issues, but rather offer a guide, as practical as possible, on all of them. The reader will assess whether the latter has been achieved. At the end of each chapter there is a bibliographical selection, since we have not wanted to incorporate its content in notes, except for the essential ones, to facilitate its reading.
I would like to finish as I began: art and tributes have more similarities than divergences. Both are taxes, from the Muses or from the State; both contribution to the development of society; both payments for a previous possession: possession of beauty or things; They are both human creations; both capacities granted or earned, which, in some cases, makes true the saying “of having no art or part.”
The taxable or liquidable base is canvas, marble or wood. The type of tax the brush or instruments that shape the final result. That is, the work of art or the tax fee. The Treasury inspection, the art critics and the AEAT or the General Directorates of Taxes of the State or the CCAA, the auction houses.
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2024-03-04 11:54:40
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