In addition to being subscribed to a very special legal framework, one of the reasons to seek expert legal advice in operations relating to works of art and cultural heritage is taxation.
The sale of works of art often has a transnational component, in which buyer and seller are of different nationalities and subject to different laws. In the case of movable property, it is also common that the perfection of the sale take place abroad, either within the EU or in EU territory, which means that the tax system often suffers substantial alterations.
Although the objective of this blog is not to lecture readers on the different scenarios that may occur in each operation, we think it would be convenient to simply offer some legal notes about when the sale and previous, contemporary or subsequent negotiations take place in Spanish territory.
With regards to the sale, several legal relationships subject to their own particular taxation system may converge. On the one hand, the core operation, the sale itself; and, on the other hand, parallel or auxiliary actions closely related to sale and, in particular, the presence of one or more intermediaries (dealers, art galleries or Commission agents) that have rendered a service to the buyer or seller and perceive fees for their work.
We will focus, in this entry, on the taxation applicable to the seller and the buyer, in which one can distinguish both a direct and an indirect taxation, and within this division, one might differentiate between sales made by entrepreneurs and sales carried out by private individuals.
Sale by Companies
The most immediate taxation is that which arises with the transmission and a percentage of the price of the work or the gain obtained. We could distinguish between a general system and a special system for used goods, art objects, antiques, and collectibles.
If the transmission is made by a businessman, the operation will be taxable with VAT, although the rate oscilates between 10 and 21%.
You will be taxed at 10% if the operation is carried out by the author himself or his descendants, or by different resellers of art objects (not subject to the special arrangements), businessmen or professionals when they are entitled to fully deduct the tax supported by direct impact or satisfied in the acquisition or importation of the same object.
You will be taxes at 21% if the sale went through any other businessman.
These percentages fall on the sale price, which does not happen if the businessman were subject to the system of special used goods, objects of art, antiques, and objects of collection, in which case the tax rate does not rest on the complete price but on the profit obtained (as we will see below)
The special system of used goods, art objects, antiques and collectibles
will only be applied to taxable persons that have chosen so expressly, at the time of presenting the Declaration of Commencement of Activity (which is done using the model 036) or, where applicable, during the month of December preceding the beginning of the calendar year in which it will produce it´s effects, with the understanding that it will be tacitly extended for the following years unless you expressly state otherwise.
This system will be applied to resellers – entrepreneurs – of used goods or movable property that are considered works of art, antiques or collectibles that have opted for this special system and in the following deliveries of goods:
1ª) Delivery of used goods, objects of art, antiques or objects of collection acquired by the reseller to:
a) A person who is not an entrepreneur or profesional.
b) A businessman or professional who will benefit from the duty-free treatment of the tax in the Member State of beginning of the dispatch or transport of the good, provided that said good is considered to be an object of investment by the concerned businessman or professional.
c) A businessman or professional by virtue of a tax-free transmission.
d) Other taxable resellers that have applied the special system of secondhand goods, works of art, antiques and collectable objects to the transmission.
2ª) Transmissions of objects of art, antiques or collectibles that have been imported by the taxable reseller himself.
3ª) Transmissions of art objects acquired from business owners or people by virtue of operations to which have been applied the reduced rate of 8%, because they are the authors or their successors.
For the purposes of the special system, goods are only considered to be objects of art, collectables or antiques when they are listed expressly in article 136 of the Law 37/1992 of 28 December, of Value Added Tax.
The economic peculiarity of the system consists mainly in that the taxable base for the transmission of such goods will be made up of the profit margin of each transaction applied by the taxable reseller, discounting the quota of VAT applicable to this profit margin. For these purposes, the profit margin is considered to be the difference between the sale price and the purchase price of the good.
Indirect Taxation between Private Persons
If the sales are carried out between private persons, the operation will be subject to tax on property transfer, a tax which has been given to Spain´s different Autonomous Communities to administrate, which means the different regional laws will be applicable. In the absence of specific regional regulation and because a work of art has the condition of movable property, the State legislation establishes the rate of 4%. Currently, there are few Autonomous Communities that have not established their own rates. The economic crisis has produced the well-known effect of raising rates, which has also affected the world of works of art and antiques. Without going out of one´s way, in Andalusia, the Law 17/2011, of December 23rd, sets a rate increased to 8% for the taxable transfer of works of art and antiques.
DIRECT TAXATION OF WORKS OF ART
This is the tax paid by the seller as a result of the sale, in the case that he or she has made a profit.
Applicable tax will vary depending on whether the seller is a legal person, which will be taxed according to company tax, or a natural person, whose yields are subject to tax on the income of the physical persons.
In the case of legal persons, the profit would be added to the taxable base as yet another source of income and on the resulting total amount would be applied the corresponding rate: General rate of 35% or, usually, if annual turnover is less than 5 million euros and the average workforce is less than 25 employees, they will be taxed at a reduced 20% for taxable income between 0 and 300,000.00 euros and 25% for the remaining taxable base.
In the case of natural persons, profits would be taxed according to the tax on the income of physical persons (IRPF), differing according to whether the seller is a businessman dedicated to such activity or an individual. In the first case, financial gain would have the consideration of business derived income and would be taxed according to the progressive general scale (24.75 to 52%). In the case of a private person, he or she would be taxed according to the rate of savings income, that range between 21% and 27%.
For more information, visit our website or contact us directly.Antonio Pedro Rodríguez Bernal Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques. Email: firstname.lastname@example.org