Legal Eye: Art appreciation

I'll leave the issues of decorative and investment values to aesthetic experts. For legal purposes, it matters little whether or not your idea of fine art is a painting of dogs playing poker. If the sale or purchase of this painting took place in Poland, you might get more than you bargained for.

Buyer beware

Feel free to buy the painting of canine card players. There are no restrictions on buying art in Poland, excepting the thickness of your wallet and the tolerance of your loved ones.

If you are counting on the dog painting being a CM Coolidge original, you should remember the age-old adage: caveat emptor. If it turns out that your "original oil" is nothing but a cheap reproduction, you may have little recourse.

Double protection

Auction houses and art dealers may protect themselves in two ways against future claims that the art they've sold is fake. First, they may include a provision in the sale contract that waives liability for defects (including forgery). Second, and more importantly, the Polish Supreme Court has ruled that an auction house has a strong defense against liability if it engaged a qualified expert to examine the art and professionally opine as to its originality.

Naturally, neither of these defenses would be effective if the art dealer deliberately switched the original with a fake, suspected its inauthenticity or could have easily discovered that something was not genuine.

The tax man cometh

While law may be blind to aesthetics, the Polish revenue service keeps a keen eye on transaction values. When you buy a work of art, a civil-transaction tax (formerly known as "stamp duty") may be due. When you buy art from an auction house or art dealer, the civil-transaction tax is included in the sale price. If you buy directly from the artist, you will need to pay a two-percent civil-transaction tax for any work of art that costs more than zł.1,000.

Don't forget that when you sell the art, you will need to include the profits from the sale in your personal income-tax declaration.

Restrictions on exports

With poker being all the rage in the US these days, you may be tempted to sell your new painting in New York. Before you box up the work, however, you may need an export permit.

With so much having been destroyed or carried off during the last few centuries, and particularly during World War II, Poland is sensitive about holding on to its remaining older art and antiques.

 

Is it a relic?

As the original dogs-playing-poker series of paintings is more than 55 years old, you will need an export permit for your painting, unless you can prove that it is not a "relic." The definition of a "relic" includes anything that "stands as witness to a by-gone era or event, the preservation of which lies in the interest of society because of its inherent historical, artistic or scientific value." Even as a lawyer who is skilled at splitting hairs, I'm not quite sure what wouldn't qualify as a relic. Poker playing dogs might have some deeper cultural meaning.

When in doubt, you should visit the local Voivodship Conservation Office to apply for an export permit.

Judith Gliniecki is a managing partner at Rymar and Partners