The EU Asks, “Is it art?”

Hosting a Dan Flavin retrospective, the Hayward Gallery in London says that the American artist, who died in 1996, created pioneering sculpture for half a century. Nonetheless, taking on the recurring question, “Is it art?”, the European Commission in Brussels has ruled that the work has "the characteristics of lighting fittings ... and is therefore to be classified ... as wall lighting fittings".

This is no angels-dancing-on-the-head-of-a-pin debate. For tax purposes, classifying the pieces as light fixtures means that any Flavin work imported into the European Union is subject to full VAT, which rose to 20% on January 1; classified as sculpture, the pieces would be subject to only 5% VAT.

Art critic Laura Cumming has said about Flavin’s art, "You wonder how it is possible that so much pleasure could emit from such a dismal source: the cold fluorescent tubes of strip lighting." But in its ruling, the Commission said: "It is not the installation that constitutes a ‘work of art' but the result of the operations (the light effect) carried out by it."

Hmmm… if the only things installed in a room are lights, and the only reason people go into the room is to look at the effect of those lights … ??? I wonder, is it "the result of the operations" or the purpose of the operations that constitutes a work of art ?

This is not the first time this has come up as a tax issue. The Guardian cites one famous precedent for the Commission's decision; “In 1926 the American collector and photographer Edward Steichen bought a bronze version of [Romanian sculptor Constantin Brancusi’s] tall slender Bird In Space, and attempted to import it to the US. Since it had neither head, feet, nor feathers, US customs refused to accept it as a zero-rated work of art, and instead classified it as ‘a manufacture of metal ... held dutiable at 40%’.”

After paying the $600 tax, Steichen and Brancusi took the matter to court – their legal fees paid by the millionaire collector Peggy Guggenheim. The decision was overturned, the judge ruling that "while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental". Steichen got his money back.

Take note, EC.