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Legal Eye: Artfully Legal

  • Poland
  • Tax planning and consultancy

09-01-2012

Beauty is in the eye of the beholder. With art, ultimately it doesn't matter whether your notion of "beauty" is based on aesthetic taste or potential investment value. With a good eye and maybe a little luck, you could have both. However, before you invest you may want to consider the legal and tax implications.

Taxing matters

Taxes are an inevitable part of modern life and do not make an exception for objects of beauty. When you buy a work of art, various taxes may be due. If that art costs more than zł.1,000, you, as the buyer, will need to pay a 2 percent civil transaction tax (formerly known as "stamp duty"). You may also need to pay VAT on your purchase.

When you sell that work of art, tax may also be due. You will need to include the amount of the profit from the sale when calculating your income tax, unless you are merely a hobby collector and have held the art for more than 6 months.

Age matters

While it may be uncouth to ask a lady about her age, it is a crucial question with art. If a painting is over 50 years old, you may need to obtain a permit if you ever want to take it out of Poland.

It's not just about art. With so much having been destroyed or carried off during the last few centuries, but particularly during World War II, Poland is sensitive about keeping its remaining older art, antiques and other items of cultural heritage. Poland's Law on Preservation and Conservation of Relics protects a broad spectrum of "relics." The definition of a "relic" includes anything that "stands as witness to a bygone era or event, the preservation of which lies in interest of society because of its inherent historical, artistic or scientific value." Even as a lawyer who is good at splitting hairs, I'm not quite sure what wouldn't qualify as a relic. The legal commentaries on the issue also do not provide much clarification. As to artistic value, it has been suggested that it relates "in essence to an individual feeling about and perception of beauty." To be safe, you should assume that anything that was created more than 50 years ago and could be remotely considered art could be a protected relic.

Worth matters

In 2010, the Law was amended to allow a key set of exceptions for low-value relics. This is not a revolution, but more of a move to debureaucratize. Unofficially, before 2010 it was assumed that it should not be a problem to obtain an export permit for low-value items.

The thresholds of low value depend on the type of art. The general threshold for artistic works is zł.40,000. However, the Law lists different amounts for different techniques. As examples, the low value threshold for watercolor is only zł.16,000. For a photograph, this amount drops to zł.6,000.

Fifty years is also a rule of thumb, and longer periods apply to some categories. For example, the threshold for a map is 100 years old and a value of more than zł.6,000. You don't have an additional argument if the work of art is in poor condition. Older works of art are protected regardless of their condition.

Permits

If your investment plans involve art of a higher value and you want to consider taking it outside of Poland, whether for sale on a different market or for your own personal use, you will likely need a permit. When in doubt, you should visit the local Voivodship Conservation Office to apply for an export permit.

The author gratefully acknowledges the assistance of Karolina Stawowska, the head of our tax practice, in preparing this article.

Source: Judith Gliniecki, Warsaw Business Journal, January 9th 2012

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