Buying art abroad isn’t meant to be stressful or complicated.
Although there are some necessary considerations, you can easily work with a trustworthy dealer to bring the artwork safely home. We spoke with Barbara Hoffman of The Hoffman Law Firm, a boutique art law firm with a niche in global transactional and litigation practice.
Hoffman explained that, generally, collectors can attend art fairs and make purchases and shipping arrangements on their own. “When things become more complicated is after the fact,” Hoffman explains. “If something has been seized, for example.” If something is seized or you have trouble with the process of bringing your art home, an art lawyer can help you.
“Sometimes there are more complicated deals, like if someone is buying a collection or something needs approval to leave the country,” Hoffman continues. “Then you need to engage an art lawyer or consultant.” For standard purchases at art fairs, it’s not necessary. “It’s really only when you have a question,” she says.
We spoke with Hoffman to answer some general questions about international art buying and she gave us advice on how to complete a stress-free transaction:
1. Work With a Recognized Gallery
When you’re buying artwork abroad it’s advised to work with vetted dealers and gallerists—especially when you’re spending substantial sums of money. “We’re not talking about buying souvenirs,” Hoffman says. “We’re talking about buying art and antiquity.” Hoffman has clients that purchase from the India Art Fair, for example. She finds that any well-known art fair will have vetted gallerists and dealers. When you work with a recognized dealer you will be alerted of the taxes payable specific to your home country. You can also trust the dealers to make an educated recommendation on the best way to ship the work(s) home.
There are many resources to find vetted art fairs that feature recognized galleries. Art magazines generally have advertisements and you may want to conduct your research based around a specific trip you’re taking. Here is a listing of some art fairs worldwide; Hoffman mentioned the Arte Fiera Bologna as a respected fair, as well.
2. Research the Work You Want to Purchase
A great resource to consult is the Art Loss Register. This is where you can start your research on the provenance of the work and confirm that it was not stolen. From there, request the appropriate provenance documentation. If you’re buying contemporary art, you want to have a certificate of authenticity that is signed by the artist. “If the artist is no longer living, then you want to do your due diligence and learn the provenance of the work,” Hoffman suggests. “Just going to the Art Loss Register is due diligence if you don’t find something listed there.” Keep in mind the Art Loss Register doesn’t deal with antiquities. Antiquities that are stolen or illegally excavated are not known until they surface. In other words, until they are reported stolen, no one knows they exist.
Being aware of common forgeries has proven helpful, as well. “There are certain artists like Wifredo Lam,” Hoffman illustrates, “where there are many forgeries, and you need to be very cautious.” If you are shopping at an unknown flea market, a commonly copied artwork should set off alarms that this work needs to be properly vetted. When you’re working with a trusted gallery, your chances of dealing with stolen works or forgeries are smaller.
3. Negotiate Shipping Rates
When shipping artwork home you have many options. Some companies ship by air, some by boat—and the prices vary tremendously. “Get more than one bid,” Hoffman recommends. There’s no way to know whether plane or boat will be the most affordable and effective method for your piece until you ask around. Work with shipping companies on cost and use your competitive bids to your advantage.
Insurance can be obtained through the shipping company. Hoffman advises listing your name as the insured candidate, so you have an independent right to collect against the insurance company in the case of a claim.
4. Understand Your Tax Responsibilities
The U.S. Government, for example, does not tax artwork. Taxes for artwork are generally handled by state in the form of sales tax or use tax. The buyer will have to research whether they are responsible for any taxes. Learn more about the difference between sales tax and use tax here. If you bring artwork back to New York, for instance, you will be responsible to pay use tax at customs.
“Different countries have different customs of taxations,” Hoffman says. If your intentions are pure, you are generally not at risk. Making a false declaration on a customs form, on the other hand, is a crime. Utilize your resources—the dealer, the shipping company, and the insurance agent—to educate yourself about what taxes you may owe. Any specific questions can be directed to your home country’s customs department.
If artwork is exempt of taxes in your country, be sure customs recognizes your piece as artwork. This would be relevant if you are buying a sculpture of a kitchen utensil for example. If U.S. Customs classifies the sculpture under kitchen utensil, the piece will be taxed at 40 percent. This may sound bizarre, but it’s happened before. In the famous case of Brancusi vs. the United States, artist Brancusi had his sculpture classified under “Kitchen Utensils and Hospital Supplies,” yielding a tax of 40 percent upon entering the U.S. from Paris. This happened because the sculpture title did not explain the piece, therefore U.S. Customs did not declare the sculpture art. Ultimately, the definition of art was revisited and the artwork was exempt of taxes. For a more detailed explanation of the case, consult MoMa’s blog post.
5. Investigate Cultural Heritage Protections
Some countries have export regulations protecting cultural property. The United States, for example, has regulations based on our implementation of the UNESCO treaty. “I had a client that was offered something of Marie Antoinette’s,” Hoffman tells us. “If it’s real, you can’t export it from France because they have laws prohibiting the export of cultural heritage.” The United States has similar treaties with many other countries including China and Peru. For more information on the UNESCO Illicit Trafficking of Cultural Property consult the website here.
“If someone tries to sell you an antiquity, you need to be extremely clear about the provenance of such an object.” Hoffman suggests. “You need to make sure it was in the country before we had these regulations.” The UNESCO treaty is made to prevent the looting of other country’s cultural heritages. There is a similar ban on certain elements that need to be preserved such as ivory and eagle feathers. When certain elements become protected, these bans are specific to your country. The ban on ivory, for instance, was put into place by President Obama. Only ivory that was imported before the ban in 1989, proven by a government-issued permit, and antique ivory that is older than a century are exempt.
Conversely, you will also need a certificate proving that reproductions are not genuine antiques. “A client bought reproductions that are made to look like old Dogon sculptures,” Hoffman remembers. “They knew that they were reproductions, and they were afraid U.S. Customs would seize them because they looked real.” In this case, it is recommended to obtain a certificate from the museum saying that these works are reproductions. The sculptures and their certificate verifying that they are reproductions passed through U.S. Customs with no issue.
6. Consult an Art Lawyer if Something Goes Awry
Let’s say you buy a 12th century portrait by a known artist at a European art fair. Shipping goes smoothly and the piece arrives in the mail after you return home. Your art hanger comes over to hang the piece and as you give it another look you have second thoughts. You schedule an appointment with your appraiser who informs you this is a 16th century copy. This is a true story, coming from one of Hoffman’s clients. “The difference in value was millions of dollars,” she says. Although surprisingly, there was no issue in handling the situation because the transaction was made through a vetted dealer. “There was no problem getting a refund based on the warranty of authenticity because of the reliability of the dealer,” Hoffman explains. The difference in value was reimbursed to the buyer.
When you discover an issue like this, it is wise to contact an art lawyer to handle the situation. This will protect your assets and give you the option to take serious legal action, if necessary.
7. Hire a Lawyer for the Transaction of a Major Work
When you’re talking about major works being sold privately for millions of dollars, hire an art lawyer. “Those are very sophisticated, international transactions where you do need a lawyer,” Hoffman confirms. It’s important to make the distinction between buying or selling a major work or collection, opposed to purchasing one piece at an art fair. “If you’re buying Picasso and the seller is unknown,” Hoffman illustrates, “those transactions involve inspections and other considerations. It’s important to make that distinction.”
Artwork Archive is your partner for managing your art collection. Get insider tips on purchasing, securing, maintaining, and planning your estate in our Essential Guide to Collecting Art.
