US President Donald Trump’s recently announced tariff regime has brought confusion and turmoil to the international art and antiques trade, with dealers around the world scrambling to find out if their merchandise is exempt from these taxes when they sell or exhibit in the US and what the actual amount of tax would be.
Few nations or long-time trading partners were spared as the new set of tariffs that will apply to more than 60 countries were unveiled in Trump’s Rose Garden press conference on 2 April. Importers seeking to bring goods into the US from other countries now face tariffs of between 10% and 54%, based on existing trade imbalances between the US and individual countries. Among the nations most likely to be significantly impacted by the tariffs, if they are applied to art and antiques, are Japan (24%), India (26%), the UK (10%), members of the European Union (20%) and China (54%). Some of the new tariffs are on top of existing tariffs.
The US government’s Harmonised Tariff Schedule, as written, exempts certain commodities, including art, defined as paintings, drawings, pastels, original engravings, print and lithographs, original sculptures, objects of archaeological, ethnographic or historical interest and antiques of an age exceeding 100 years. “Ordinarily, paintings and sculptures are exempt from customs duties,” says Nicholas M. O’Donnell, a partner in the Boston law firm Sullivan & Worcester, but “under the recently announced tariff it gets a little more complicated”, because President Trump announced this set of import duties under a rarely used emergency powers statute, the International Emergency Economic Powers Act of 1977.
At first, Trump declared an emergency with respect to Canada and Mexico, rising out of the import of fentanyl, but a month later declared an emergency with respect to the rest of the world due to what he claims are trade and balances. The International Emergency Economic Powers Act does “not delegate the authority to restrict imports or impose tariffs on what are called ‘informational materials’, a category that has a long list of examples that include ‘artworks’. So, the most logical reading of the new tariffs should exempt artworks from the increased customs duties, from whatever country,” O’Donnell says.
However, the tariffs Trump announced on 2 April and due to go into effect on 9 April permit his administration to apply a blanket rate of duty of 10% on all goods being imported into the US and higher amounts for specific countries. Whether or not the new directive will be applied to cultural property is unclear.
O’Donnell adds that “there are serious constitutional questions about whether such tariffs could even be imposed. If the administration took the view that the higher duties do apply to artwork. In a nutshell, taxes are the sole province of Congress under the Constitution, so any delegation has to pass scrutiny, and taxing artworks based on an ostensible situation related to illegal drugs is pretty attenuated.”
Is art exempt from, or subject to, the new tariffs? Yes!
Lawyers active in the art trade hold differing views on whether or not Trump’s edict applies to art. Michael McCullough, a partner in the New York law firm Pearlstein & McCullough, asserts that as of 5 April “all artwork made outside the US will be subject to a 10% tariff. On 9 April, that tariff will increase to 20% for artwork made in the European Union countries” and more for art made in certain other countries.
On the other hand, Pierre Valentin, a former in-house legal counsel at Sotheby’s and currently the joint head of the art law group at Fieldfisher London, says that Trump’s new tariff regime specifically excludes informational materials, which include art. That exception, he claims, “intends to respect US constitutional protections for freedom of speech. Therefore, it would be congruent with that intent to interpret the language as applying to all cultural goods. The general view seems to be that whilst the term ‘artworks’ is not defined, it must be interpreted broadly to include traditional forms (eg paintings, sculptures) and modern mediums, such as digital art, but also cultural artefacts.”
Photo by Ian Taylor on Unsplash
There has been a call for clarity from various art and antiques dealers’ associations regarding the types of items subject to the new tariffs—and a plea not to extend them to cultural objects. The London-based International League of Antiquarian Booksellers released a statement on 25 March noting that, “While we recognise the attraction of tariffs when applied to newly manufactured materials, we believe their application to goods of some age is inappropriate and disproportional. We also deplore the impact these tariffs would have on the international advance of education, learning and scholarship.”
In a statement of its own urging the EU not to include art in its retaliatory tariffs on the US, the Brussels-based organisation of art dealers Confédération Internationale des Négociants en Œuvres d’Art (CINOA) asserted: “Artworks are unique, one-of-a-kind creations produced by individual artists, not factories or corporations. They are not mass-produced, and do not contribute to market distortions, unlike industrial goods like steel or agricultural products. Typically bought and sold by individuals or micro- businesses, rather than large-scale manufacturers or retailers, artworks have minimal impact on trade imbalances.”
Erika Bochereau, CINOA’s secretary general, notes a “general uneasiness” among her association’s more than 5,000 members, in part because they are not sure what tariffs they will need to pay and also on behalf of the collectors they work with “who don’t know how much it will cost them to purchase [works], especially if they have to import them”.
For now the consensus is to wait and see. A spokesperson for the international auction house Christie’s says that “while it is too early to determine the potential impact of these new tariffs, Christie’s is a global business, able to adapt to the global economy. We will monitor carefully and adjust as needed.”
Typically, tariffs target where imported objects were produced, so that Chinese items would be assessed at Chinese rates even if they were owned by a British concern. But there are questions as to whether the same holds true under Trump’s new tariff regime. “Say, someone wants to bring in a French-mounted Chinese porcelain vase,” says Clinton R. Howell, a New York-based antiques dealer who is the president of CINOA and the co-president of the Art & Antique Dealers League of America. “Will that person be charged for both the Chinese tariff and the EU tariff?”
Howell notes that numerous examples of this type of object are likely to be represented in fairs, exhibitions and auctions that take place in the US in the coming weeks, beginning with the Dallas Art Fair (10-13 April), San Francisco Art Fair (17-20 April) and Expo Chicago (24-27 April) this month, followed by the blockbuster series of fairs and auctions happening in New York in May. And items brought into the country for sale or exhibition need not be sold in order to trigger the tariff. Kinsey Tobb, the executive director of the Art Dealers Association of America, notes that many dealers both in the US and abroad have contacted her, asking if these taxes are “temporary” if no sale takes place. Her answers to these and other questions on the tariffs range from “we don’t really know” to unhappy news.
Clinging on for clarity
Mark Dodgson, the secretary general of the British Art Dealers Association, also says “members are contacting me all the time” asking these same questions, and his only response is to send them whatever information he has, “which isn’t much”. Sharing information and collecting opinions about the tariffs has become a full-time activity. Will Korner, the head of fairs at The European Fine Art Foundation (Tefaf), says that “we have, of course, been in close contact with our main shippers to Tefaf New York and our own legal, tax and shipping advisers. Our advisers have stressed that the specific regulations are not yet codified”, and so “the exact effects on artworks are not entirely certain”.
A view of the 2024 edition of Tefaf New York Photo by Julian Cassady, courtesy The European Fine Art Foundation
“We are in uncharted territory,” Valentin says. “Uncertainty over how the executive order will be applied in practice is far from ideal, especially for collectors and art market participants committed to shipping art and antiques to the US in the near future.”
A spokesperson for the fair organiser Art Basel expresses similar uncertainty. “We recognise that recent global trade tariffs may have significant implications for international markets, including the art trade,” the spokesperson says. “As this unprecedented situation continues to evolve, the full impact on the global art community remains uncertain. Our team is actively monitoring developments, engaging with trade experts and industry associations, and staying closely connected to our exhibitors. We remain steadfast in our commitment to our galleries and fostering a resilient and vibrant art ecosystem.”
The lack of clarity is felt all around. Axel Haddad, the fine art director for the Paris-based fine art packing and shipping company Grospiron Fine Art, says that “our goal is to understanding what is happening”, and James Hendy, the senior vice-president and general manager at Crozier Fine Arts, an art handling, storage and shipping company with 30 locations around the globe, says that “there has been a lot of noise, but no real clarity on what the rules actually are”.
Hendy adds that the questions he and his colleagues at Crozier are asked most often these days is about the “time frame” and whether it is more prudent to “ship something today, next week, next month” based on what the tariffs are or will be. Fine art shippers need to enforce the rules set by the US and other governments, and he says that “there are a lot of negotiations going on between various countries and the US, and we pass on to our clients what we learn in real time”.