INTERVIEW WITH Michael McCullough of the law firm Pearlstein McCullough & Lederman LLP on The “Terrorism Art and Antiquity Revenue Prevention Act of 2016” (“TAAR”)



Q1: Can you provide a short historical summary for why the TAAR Act has been introduced to the US Senate?

For the past several years, the Antiquities Coalition and other groups have lobbied for legislation to address the looting and trafficking of illicit antiquities in the United States. In May 2016, President Obama signed the Protect and Preserve International Cultural Property Act, which restricts the importation of Syrian antiquities illegally removed from that country since March 15, 2011, building on restrictions in place for Iraqi antiquities since 2004. The TAAR Act is meant to give Federal and State law enforcement new tools to stop the domestic trade in Syrian and Iraqi-origin cultural objects, by:

  • Amending the National Stolen Property Act (“NSPA”) to include all cultural property over $50 removed from a foreign country in violation of any foreign law. However, “cultural property” will include virtually all collecting categories of art and antiques.
  • Creating an Inventory Database System that requires any person in the US who imports, sells or gifts Syrian or Iraqi-origin cultural property to provide to the government with information and documentation about when and where the property was obtained, and such other information as the government considers appropriate. This database could be expanded in the future to cover all art market transactions in the US.
  • Requiring the government to develop regulations for a government database for all cultural property transactions that includes information on provenance and prior ownership.

Q2: Which of the fine arts business sectors will the TAAR Act specifically affect and how far reaching will the restrictions be?

We should assume that the legislation is well-intentioned, but it goes far beyond protecting Syrian and Iraqi cultural objects and makes sweeping changes to the US laws that affect the trade in all art and antiques, as follows:

  • The NSPA amendments would subject the owner of any “cultural property,” including all fine art and antiques, to claims of “illegal removal” under the foreign local laws, such as export law violations, tax laws violations, etc. This would eliminate the important distinction between national ownership laws and foreign export control laws; currently, only national ownership laws can trigger civil and criminal liability for the handling of stolen property in the US. This change in the law would create new avenues for the US government seizure of art and antiques removed from a foreign country without an export license, as well as the criminal prosecution of individuals dealing in those objects.
  • The Inventory Database System will require anyone who seeks to import, sell or gift any Syrian or Iraqi cultural property in the US to provide Homeland Security with documented provenance (and other unspecified, discretionary information).  The requirement applies not only to fresh imports but to material already in the US, will destroy the market for most Near Eastern antiquities already in the United States, and will chill the importation of “old and cold” material on the market outside the US.
  • The proposed development of a Federal Government database with information on cultural property is not limited to Iraqi and Syrian material, but encompasses the entire art market. Art market participants are not promised access to the database and will be denied vital information on which to base trading decisions otherwise made in good faith.

Q3: Does there seem to be any reciprocity from other countries in assisting with TAAR like the various iterations of pre-screening programs adopted by many of the US’ trading partners?

No. The legislation does not offer any benefits to art market participants. The database proposals require transparency without protecting confidentiality or providing the prospect of repose after a specified period of publication. The publication of “bad actors” in the market could serve to black-list dealers who act in good faith but are guilty of technical violations, for example, by misinterpreting vague foreign laws. Likewise, art market participants are not promised access to the database. This would subject US persons to civil and criminal liability in the US and in the foreign country, without offering any relief from liability after a specified period.

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