Digital artwork: companies will not benefit from tax reductions on purchase

17/02/2021

Solicited by a parliamentary question, the Minister of Culture came, on January 12th, to freeze the fiscal nature of digital works of art.

Noting that the art market “has adapted to developments in digital art”, the deputy of the Doubs (France), Ms. Annie Genevard, asked the Minister of Culture on September 3, 2019 « on the possible measures to recognize digital art as any work of art and thus allow companies to benefit from tax reductions. ».

Indeed, since the 2000s, artists have been seizing new technologies to create by computer, reproducing their works by photomechanical or mechanical process.

However, tax law does not seem to have yet taken into account these new methods of creation. According to the tax authorities, « a creation can be qualified as a work of art if it meets the criteria defined by article 98A of the General Tax Code”. This article lists the creations that can be fiscally considered as works of art, “specifying that they must be entirely executed by hand by the artist ».

As a reminder, article 238 bis AB of the General Tax Code (CGI) provides for a tax deduction in favor of companies subject to corporate income tax, which purchase original works by living artists before December 31, 2022. The latter can deduct from the result of the year of acquisition and the 4 following years, an amount identical to the purchase price of the work if they record it as a fixed asset on their balance sheet.

However, only works executed by the artist’s hand are concerned by this tax deduction, excluding digital or mechanical processes. Paradoxically, « photography enters into the tax definition of a work of art when almost all photographs are printed digitally and therefore by a photomechanical process. Moreover, works printed under « plexiglas » can also be sold as works of art. ».

In his written response published last January 12, the Minister of Culture acknowledges that « this fixed tax definition of works of art does not take into account all artistic practices, including digital, which tend to be disseminated in places of creation, exhibition. »

It asserts for all that original digital creations cannot for the moment benefit from such tax reductions, except if the law of the European Union does not evolve in this direction.

Indeed, « the list of works of art defined in Article 98 A of Annex III to the CGI is a reprise of the provisions of Directive 2006/112/EC of the Council of the European Union of 28 November 2006 on the common system of VAT”. For the time being, it would not be possible to develop this list without prior modification of the directive. ».

Our UGGC Law Firm and its team of Lawyers specialized in art law are at your disposal to assist you in the protection of your legal and economic interests.

By the IP/IT team of UGGC Law Firm

Source: National Assembly, Written Question N°22584

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