Photo: Tanja Bruckner, 2017
Like other working people, artists need superannuation in order to have some retirement income in their old age. While it is currently not legislated that visual artists be paid superannuation on the artist fee they receive for the commissioning or loan of their work for exhibition, NAVA supports the principle of industrial fairness and the making of super contributions for artists.
Some contractors working in the arts may be deemed to be employees for superannuation purposes and the employer may be required to make superannuation contributions on their behalf. NAVA’s factsheet on superannuation contribution obligations for employers explains what might determine whether a person is an employee or a contractor for superannuation purposes.
Self Managed Super Funds
Changes to the rules relating to investment by Self Managed Superannuation Funds (SMSFs) have had a negative effect on the art market resulting in the destabilisation and downturn in the Australian art market.
NAVA has continuing concerns about the deleterious impact on artists and the art market resulting from the changes to superannuation regulations. Now all works in SMSFs have to be stored in a purpose-built facility, external to any premises in which the owner or any related party lives or conducts any business. A SMSF may hire artworks to a gallery for the purpose of display, but otherwise they must remain unseen. SMSFs that haven’t been able to meet the costs and comply with the regulations, have been flooding the market with works being sold below their true value. This in turn has depressed the price for artists’ work more generally.
NAVA has opposed the changes by writing a submission, joining with others opposing the changes, commenting to the media and providing advice to the Government on the damage to the industry caused by these changes. NAVA will continue to try to persuade the Government to reverse the changes.
In 2010 the then Federal Government commissioned a review of the operation of Australia's Superannuation System (the Cooper Review). The Government consulted the industry on the key proposals and NAVA was one of many who responded. However, the resulting changes to the regulations went against recommendations made by the art industry and new rules were brought into force from July 2011.
The regulations do not prohibit SMSFs from investing in artwork and other collectables as long as it does not give rise to a personal benefit and the works are held for the purposes of providing retirement beneﬁts. However, artworks are not permitted to be displayed by related parties because this is deemed to be a ‘use for personal benefit’. This prohibition extends to hanging artwork in an SMSF’s business premises where it is visible to others such as clients and employees.
SMSF trustees are permitted to store artworks in premises owned by a related party, provided that the premises are not part of the private residence of a related party. A private residence includes all parts of a private dwelling, the land on which it is situated and all other buildings on that land, such as garages or sheds.
The SMSF can lease its artwork to an art gallery provided the art gallery is not owned by a related party of the fund and the lease is on arm's length terms. The artwork is still required to be insured in the name of the SMSF, regardless of whether the art gallery has its own insurance policy.
Unless the SMSF has converted to a small APRA fund, it is also a requirement that existing assets that cannot meet these rules must be sold within a five year ‘transition period’ from mid-2011. This has caused great instability in the art market as works have flooded the market, mostly being sold under their true value.
The ripple effect is that buyer confidence has been quickly damaged since the changes came into force. Many galleries have closed and the value of artists’ works has been lowered. It is estimated that overall investment in art and collectables dropped by A$186 million in the 2011/2 financial year. No strategy has been put in place to deal with the direct impact on artists and communities suffering from this downturn.
These rules for storage, insurance and display of artworks essentially have made arts investment by SMSFs a financial liability. There is great concern these changes to the laws are inflicting serious damage on the market particularly for Indigenous art and the communities it supports.
In 2010, managing director of Moss Green Auctions, Paul Sumner estimated that around 60% of Indigenous art sales were made through SMSFs. A 2007 Senate Standing Committee report on Indigenous art noted that around 40% of income earned by Indigenous artists in remote communities for the sale of artwork was reinvested back into communities.