How can an export permit affect charitable giving? Quite easily if you are dealing with a foreign art work deemed “cultural property” under Canada’s Cultural Property Export and Import Act (CPEIA). A June 12 Federal Court of Canada decision on the export of French impressionist painting has reportedly frozen donations of “foreign” art to Canadian museums. It makes no public policy sense.
A bit of background is in order. In November 2016, Heffel Fine Art Auction House sold a 1892 oil painting by Gustave Caillebotte featuring irises in his garden in near Argenteuil on the Seine. The buyer was British; the seller a Toronto collector who had owned the piece for 35 years. The sale price of Iris bleus, jardin du Petit Gennevilliers was for $678,500.
The auction house, however, had a problem. CCPERB, the Canadian Cultural Property Export and Review Board, blocked the export of the work. Heffel went to court to appeal and won. As someone who is generally supportive of more liberal art export rules, I was pleased by the decision until I realized the implications. It helps the export of art, but will prevent art donations to institutions across the country.
CCPERB, quoting the Act, told the court that the painting was of “outstanding significance” and “national importance”. The Board argued that national importance “is a quantitative assessment that is focused on degrees of quality, significance or rarity” and it was entitled to make these qualitative judgements.
Justice Michael Manson ruled that this interpretation of national importance was “unreasonable”. Citing s. 11 of the Act, the object must be “of such a degree of national importance that its loss to Canada would significantly diminish the national heritage.” Iris bleus didn’t hit this mark.
Justice Manson also said “most objects in the Control List require a direct connection to Canada, such as having been recovered in Canada, made in Canada, made by a person who once resided in Canada, or otherwise having some relation to Canadian history or a Canadian theme or subject.” This Canada-first view applies not just to exports, but also for the donation of foreign art to Canadian institutions.
Over the summer the controversy raged in the art world. Ottawa appealed. Heritage Canada posted. Eight museum leaders wrote an open letter. Prominent art dealers blogged. A number of donors and galleries I have spoken to said that CCPERB is not designating works that originated outside Canada as cultural property. Without the designation donors are being denied additional tax benefits, namely the elimination of capital gains and 100% contribution limit for up to six years.
Applying this uber-nationalist vision to donations to Canadian institutions is incoherent. Conflating – tangling – the export and the donation rules in CPEIA does not serve the important public policy aim of enriching the collections of Canadian public galleries and museums. And donors, both in life and through their estate plans, are facing uncertainty that will, ironically, lead to more sales and exports internationally. We need a rethink.