Auction houses who refund VAT on the buyer’s premium to overseas purchasers without ensuring that the correct paperwork is in place could find themselves liable for the tax themselves.
That is the conclusion of ATG legal columnist Milton Silverman, who advises that Her Majesty's Revenue and Customs set high standards to which buyers must conform in order qualify for the refund.
In the current issue of ATG's printed newspaper, Mr Silverman, a partner in London law firm Streathers and a specialist in art market-related legal issues, sets out details of the VAT Auctioneers' Scheme in a specially commissioned article following a number of approaches to ATG by auctioneers uncertain of their position in the face of demands for VAT refunds from buyers in China and other countries.
"To make the scheme work you have to adhere to the record-keeping, invoicing and accounting requirements set out," he advises. And he quotes directly from HMRC instructions which state: "If the evidence of export provided is found to be unsatisfactory, VAT zero-rating will not be allowed and the supplier of the goods will be liable to account for the VAT due..."
Briefly, buyers must be able to show that the transaction has actually taken place and that the goods they are claiming the refund on are indeed those that have been purchased and exported, and to the stated destination.
"There is a much longer list for 'Commercial transport evidence'. This includes various forms of waybills, certificates of shipment etc," writes Mr Silverman in his article.
Some of the larger auction houses, such as Christie's, avoid the risk of being landed with their clients' VAT bill through a mix of terms and conditions and offering an in-house export service that takes care of all the bureaucracy on their behalf.