September 2021- Karolina Miłkowska & Laurens Kasteleijn for Art Law Services
Donating art to a museum has a long lasting history in the Netherlands. It dates back to the 17th century when the Dutch were known for their love of art. Back then (as today still) donating art to a museum was seen as a way to establish a legacy. Nowadays, taxation also creates incentives for donating.
This article explores some of the legal issues surrounding the donation of art to Dutch museums: How do museums look at donation? What are the (legal) requirements? What are the tax rules?
Museum collection policies
Museums willingly accept new acquisitions for its collections. However, certain conditions must be met. Museum guidelines generally do not distinguish between acquisition by gift and acquisition by purchase, but this is deceptive; a museum is unlikely to purchase an artwork that it does not wish to add to its collection. The same is not true of a gift.[1]
According to the ICOM Code of Ethics, museums are required to have a collection policy in place. It states: “The governing body for each museum should adopt and publish a written collection policy that addresses the acquisition, care and use of collections. The policy should clarify the position of any material that will not be catalogued, conserved, or exhibited.”[2] Consequently, the policy should be the first document to consult when thinking about donating.
Valid title
When donating to a museum in the Netherlands, the museum will initially have to assure that the museum is acquiring from an entity possessing the correct legal title to the artwork. In that way the museum is protecting both the donor and itself.
According to the Dutch Civil Code (“DCC”) the donor has to be able to proof that he/she acquired the artwork legally and in good faith. A possessor (of an artwork) is in good faith when, at the moment on which he/she acquired the artwork, he/she regarded him/herself as proprietor of the involved asset and reasonably could have regarded him/herself as such.[3]
No object or specimen should be acquired by purchase, gift, loan, bequest, or exchange unless the acquiring museum is satisfied that a valid title is held. Evidence of lawful ownership in a country is not necessarily a valid title.[4] Fulfilling those conditions is especially important as works of art are exposed to illicit property trafficking. More and more research is done to prove the provenance.
Back in 2009, the Museums Association asked museums in the Netherlands to investigate the provenance of their collections. The aim was to compile an inventory of objects of which the provenance suggests possible theft, confiscation, sale under duress or other suspicious circumstances between 1933 and the end of the Second World War. The results of this investigation can be found online.[5]
Ways of donating
An option is to appoint the museum as a beneficiary in your will, but you can also include a legacy to the museum. This legacy may be an item of property or a certain amount of money. Moreover, the donation may be a periodic donation or one-off donation. Several museums in the Netherlands have created special funds to manage gifts and donations - the specifics of which can be found on the museum’ own websites.
Agreements
Donations to Dutch museums are form free for movable goods, although in practice written gift- or donation agreements will be drafted. For tax purposes a notarial deed may be required.[6] The agreement will be an essential document if any legal issues occur. In addition, exact requirements and expectations of the donor may be included in the agreement (as for example prohibition of selling the work of art for the next 10 years). You may also have specific requirements when it comes to display of the artwork - such as including your name or seeing your piece in a certain wing. It is necessary that you specify this in the donation agreement. Moreover, artists donating their work shall also need to transfer copyright laws.
Tax advantages
A person who donated works of art to a museum is entitled to a deduction from his (Dutch) income tax for the fair market value of the item given. To make that deduction effective, it must meet the ordinary requirements of a gift, just as a person who bequeaths property to charity must meet the ordinary requirements of a will.
The Dutch Tax and Customs Administration[7] have designated numerous cultural institutions as a cultural ANBI (Public Benefit Organisation), creating a way for donors to deduct the donation from their Dutch income tax, with a multiplying factor, so that the deductible amount is higher than your actual donation. (Co-)owners of a private limited company (B.V.) can support museum through their company, either through a donation or sponsorship. In principle, sponsorship contributions are fully tax deductible.
To become a Public Benefit Organisation under Dutch law one must fulfil several conditions. One is that the organisation’ efforts must be almost entirely focused on the public benefit, the so-called 90% requirement. The organisation and the persons directly involved in the organisation must also meet the integrity requirements.[8]
Donating in the (near) future
It has been a challenging year for the art world. The pandemic forced many cultural institutions and private collectors to reconsidering their arrangements. The world saw the rise of NFT art[9]. Some museums saw the crisis as an opportunity along with the convergence of virtual ownership, virtual reality and crowdsourcing coincides with the need for radical changes[10]. The donations of the future may consequently look different: The donor may donate a virtual representation of the artwork to a museum, and place it into the public domain - even if the donor retains the actual artwork itself. Accordingly, museums and donors shall need to take extra caution in their agreements, facilitating this new way of donation.
Would you like to know more about donating art to a museum? Do you want to learn more about tax discounts for ANBI? Please contact us at: info@artlawservices.com
Notes: [1] H. Lazerow, Mastering art law, Durham 2015, p. 284. [2] ICOM Code of Ethics for Museums, https://icom.museum/wp-content/uploads/2018/07/ICOM-code-En-web.pdf (accessed 03.09.2021). [3] Art. 3:118 DCC [4] ICOM Code of Ethics… [5] https://www.musealeverwervingen.nl/en/10/home/ (accessed 03.09.2021). [6] P. H. Ariëns Kappers, L. Kasteleijn in: (eds.) B. Boesch, M. Sterpi, The Art collecting legal handbook, London 2016, p. 293. [7] https://business.gov.nl/partners/dutch-tax-and-customs-administration/ [8] https://www.belastingdienst.nl/wps/wcm/connect/bldcontenten/belastingdienst/business/business-public-benefit-organisations/public_benefit_organisations/conditions_pbos/ (accessed 03.09.2021). [9] I. Nédée & L. Kasteleijn in: Legal considerations concerning digital artworks – challenges and opportunities (https://www.artlawservices.com/post/legal-considerations-concerning-digital-artworks-challenges-and-opportunities). [10] https://www.forbes.com/sites/matthewerskine/2021/01/19/whither-donations-of-art-to-museums-in-2021/?sh=5149365060f1 (accessed 02.09.2021)