Recent Tribunal Decisions: What is Art?

07 April 2009

Haunch of Venison Partners Ltd C00266

The Tribunal was faced with an appeal concerning two modern artists and their artwork. Bill Viola (an American artist) projected images via a video installation. British artist Dan Flavin’s work was titled “six alternating cool white/warm white fluorescent lights vertical and centred (1973)”.

What did HMRC argue?

HMRC employed three main arguments in this case. Firstly, they argued that Mr Viola’s work should be classified at the time of import under a heading in the Combined Nomenclature(CN) in Council Regulation 2658/97/EEC of “image projectors, other than cinematographic; photographic (other than cinematographic) enlargers and reducers- other image projectors” whilst the installation by Mr Flavin should be categorised as “chandeliers and other electrical ceiling or wall lighting fittings excluding those of a kind used for lighting public open spaces or thoroughfares”. HMRC argued that the goods could not be considered to be collectors’ items on the grounds that although an artist is eminent it does not mean that all his works are of historical interest and at most only those that break new ground or represent a particular point in the artist’s career can be of historical value.

Secondly, HMRC argued that Mr Viola’s work did not comprise a sculpture as it was not three-dimensional in nature.

Thirdly, HMRC referred to the ruling in Develop Dr Eisbein GmbH & Co v Hauptzollamt Stuttgart-West C-35/93 in the ECJ. This case involved photocopiers that were imported in kits of 200 parts and it was argued that an article is to be presented for customs clearance at the same time and no regard is to be taken of the assembly technique or the complexity of the assembly method. HMRC argued that each separate element of Mr Viola’s installation such as the LCD screen, power cables etc should be separately categorised under the relevant tariff headings applying to such goods.

What did the appellants argue?

The appellant argument was based on the ruling in the case of Reinhard Onnasch v Hauptzollamt Berlin-Packhof C-155/84 in which an item made from cardboard and polystyrene was found to be a sculpture. The court argued that a liberal interpretation of Chapter 97 of the CN covering works of art was necessary so as to avoid a rate of duty being applied to materials which have an artificially high value because they are incorporated in a work of art. This interpretation assumes the position that once something has be found to constitute a “work of art” then it would be presumed to fall within one or the other headings in Chapter 97. The appellant also argued that the US case of Brancusi v United States took account of the reputation of the sculptor and the “manner in which he is considered by those competent to judge (authors emphasis) upon that subject”.

What did the Tribunal Conclude?

The Tribunal found in favour of the appellant with the view that art can be defined by “expert evidence”. The Tribunal also agreed with the argument that once something had been found to be a work of art then the items would necessarily fall within one of the headings in Chapter 97.

The Tribunal also found that Mr Viola’s works were three-dimensional on the basis that the artist had provided detailed specifications in relation to how the images should be displayed. Both works of art could subsequently be classified as “sculptures”.

Regarding the view that all the items should be categorised separately on import the Tribunal ruled that such an approach would lead to absurdity because it would stretch the objective characteristics principle too far to say that a work of art ceases to be so when it is dismantled for transportation.

The Tribunal rejected all the arguments put forward by HMRC save for one which had no bearing on the appeal, the Tribunal agreeing with HMRC that items are not collectors’ pieces unless they involve significant innovations but there is a significant body of case law that deals with this issue.

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