Annex: Guidance Notes on Public Access

The following guidance notes on access are being made available in advance of the full Heritage Chapter, and will form an annex to that chapter when published

Note on Conditional Exemption: objects of national scientific historic or artistic interest Finance Act 1998 – guidance.

Foreword

1. The Finance Act 1998 imposed new requirements for public access to and the publication of information about property for which conditional exemption from tax is claimed. The requirements apply to those – to whom for simplicity we shall refer to as “owners” – who enter into new undertakings after 30th July 1998. Such owners may not provide public access solely by prior appointment, and must publicise the terms of their undertakings.

This Note offers guidance on our approach to these developments. We recognise that it is not exhaustive, that our approach will evolve from the cases we see, and that cases will turn on their own facts. This Note, which should be read in conjunction with our publication Capital Taxation and the National Heritage, 1986 (“IR67”) itself has no binding force.

2. Part I of this Note provides guidance specifically on public access undertakings post-1998. We are concerned with:

“Object”, “group” and “collection” are technical terms taken from the legislation. For brevity, we shall now refer to them collectively as “works” or “works of art” unless the context requires us to use these technical terms. And we shall refer to the period after 30th July 1998 as “post-1998”.

3. Part II provides guidance specifically on the publication post-1998 of undertakings and publicity generally. In the Appendix are a model undertaking and entries for our web site based on the example at paragraph 13(a) below.
4. Part III, in recognition that access with a prior appointment continues to play an important part in the conditional exemption arrangements both pre- and post 1998, provides guidance specifically as to good practice in that context.

Part I: Public access post-1998

5. The law

§31(2), Inheritance Tax 1984 provides that

the requisite undertaking is that, until the person beneficially entitled to the property dies or the property is disposed of, whether by sale or gift or otherwise – …

(b) such steps as are agreed between [HMRC] and the person giving the undertaking, and are set out in it, will be taken for the preservation of the property and for securing reasonable access to the public.

§31(4)(FA), enacted in 1998, adds that

For the purposes of this section, the steps agreed for securing reasonable access to the public must ensure that the access that is secured is not confined to access only where a prior appointment has been made.

This is the new provision for post-1998 undertakings to secure access without a prior appointment. We call this “open access”. And as the law makes clear, the undertaking is to last until the death of the owner (if any) or the disposal of the work whether by sale or gift or otherwise.

6. Policy and interpretation

Other than for the statutory need for open access, we do not follow a prescriptive approach. Instead, we interpret the legislation broadly as normally requiring an acceptable quality and quantity of access on an annual basis, in the context of – see paragraph 7(b) below – an undertaking sufficiently robust for its purpose and period.

7. General approach

But this need not imply rigidity. Agreements can contain contingency provisions if the primary access agreed collapses (see paragraph 9 and the example at paragraph 13(d) below). And there is provision to vary the terms of an undertaking by agreement. Our approach would be to accommodate an owner’s reasonable alternative proposals provided that there were no interruption to access and no delay in their commencement.

1. Hence, when they claim the exemption, owners should have weighed up whether the work is likely to meet the standard and to have at least rudimentary, workable, arrangements in place to secure reasonable public access, including open access for the period covered by the undertaking. In then advancing the claim for exemption, they imply that the work meets or at least seriously aspires to pre-eminence, and their access proposals should reflect this.
2. Pre-eminence is not in point where a new owner has merely to replace an undertaking given before 30th July 1998, but open access nevertheless is.
3. As well as pre-eminence, the likely public appeal of the work of art will be an important factor in determining suitable access. Other factors might include the circumstances affecting the work of art – vulnerability to the elements, normal location, and the context of that location. (The owner’s personal circumstances are not of primary interest when exemption is claimed. Owners need to have weighed the benefits of the tax exemption and its attendant requirement to provide open access with any personal considerations.)

8. Access to works of art: owners’ initial access proposals

It is our responsibility to agree the steps for preservation and for securing reasonable access but it is our advisers at the Museums, Libraries and Archives Council (MLA) who consider pre-eminence. In seeking at least rudimentary access arrangements before we refer items to MLA, our aim is to strike a sensible balance. On the one hand we do not want owners, especially where access depends on co-operation from others, to have to provide an undue amount of detail. But on the other we do need demonstrative evidence of an owner’s serious intention to enter into and be bound by a suitable access arrangement before we devote public money to testing the claim for exemption. On this footing we seek as follows: –

• Claimants whose works of art are already in historic houses open to the public, either their own or elsewhere, or the subject of existing suitable loan arrangements with museums or galleries.

In such cases there is no reason why owners, with the help of this guidance, should not be able to make acceptable proposals to us at the time of the claim. We will then refer to MLA for a decision on pre-eminence.

• Owners claiming exemption for a range or large number of items not presently on display in a historic house open to the public or in a public museum or gallery.

The position here might depend on whether the owner has a home suitable to open to the public (or can secure access at some other building). We expect these owners to have decided, with the aid of this guidance, whether they intend to display the items at their homes on terms acceptable to us or to arrange for display elsewhere. We would expect well- formulated proposals for display elsewhere with the borrowing organisations prepared to take the items on terms acceptable to us, even if the detail remains to be finalised.

• Owners claiming exemption for just one or a handful of probably disparate items neither normally kept nor presently on display in a historic house open to the public or in a public museum or gallery.

As we outline below, we look for these items to be displayed long term or on a regular basis in a public museum, gallery or historic house open to the public. Such an owner when claiming exemption will, before we refer to MLA, have to demonstrate interest from a museum, gallery or from the owner of a historic house to display the items on a long term or regular basis.

Owners whose homes are not the sort of buildings that open to the public might want to offer open access at home. This might be because they do not want routinely to part with their works of art or are having difficulty in finding museums or galleries willing to commit themselves to such arrangements. We might be able to agree to this to supplement the sort of loans for special exhibitions we describe below. But we would need to be satisfied that the at-home arrangements and the steps the owner intends to take to seek out such exhibitions on an ongoing basis would properly deliver the access requirements. There is an example at paragraph 13(h) below.

When referring to MLA we will advise them of the intended access arrangements. We would expect them to comment if they have any concerns about the impact on preservation, if they feel that what is being offered is insufficient or, under the third bullet point above, if they are aware of any galleries etc that might be interested in displaying the items.

If and when pre-eminence is established the remaining details (if any) of the access arrangements can then be agreed and set down among the owner’s undertakings.

9. Access arrangements to works of art: in general

Following the 1998 changes we consider, in general, that a successful claim for tax exemption depends upon the availability of open access to the public for the duration of the undertaking broadly along all or any of the following lines:

• at the owner’s home, if it is already open to the public or it would be suitable for displaying the items, or
• at another suitable building that opens to the public or
• at a suitable public museum, gallery or other similar institution or concern.

This access should be for a suitable period and time each year, and without the need for a prior appointment. We would not expect this annual period to be less than a month or so (or, where it suited an owner and an institutional borrower, a corresponding triennial arrangement.) Only in very exceptional circumstances could we accept that gaps of three or more years are reasonable.

With regard to the workability of the arrangement for the period covered by the undertaking, owners who own a building suitable to open to the public will be able to undertake accordingly. Those who depend on someone else’s building, or who loan to institutional borrowers, will not have the same degree of control. In these circumstances undertakings may need to include a default provision and owners will need to take care to make new arrangements in good time to avoid any hiatus in the open access arrangements year on year. That said, where owners loan to public institutions, and commit themselves not to terminate the loan, we would allow a reasonable interval if the borrower terminated it.

Access as just described should normally be supplemented with: –

• access with a prior appointment at other times
• willingness to make loans to public collections for special exhibitions, and
• willingness to provide curators with images to help them in mounting exhibitions.

This supplementary access would not normally be necessary where the work of art were kept in a House owned by for example the National Trust or in a privately-owned House that opened during most of the year. Neither would it be necessary where the work of art were on continuous long-term loan to a public collection.

10. Access to works of art: particular cases

While the generality outlined above will cater for many cases, some qualifications are necessary: –

• Sets – e.g. a dinner service or silver. It would be quite acceptable to display a representative selection with access to the remainder by arrangement.
• Archives. We would expect the owner to agree to deposit a full catalogue with The National Archives (HMC). The catalogue would thus be available for public access. Access to the material itself would preferably be at a public institution such as a County Record Office or University Library and on their terms. But it might be by appointment elsewhere provided that there were proper invigilation. We accept that it might be necessary, particularly where there is a large volume of material to be catalogued, for the cataloguing to be spread over an agreed period. (note: awaiting outcome of discussions with National Archives.)
• Other manuscripts and drawings. We would expect owners to be willing to display these works (or a representative sample page in the case say of a medieval missal or other collection) for short periods, where conservation considerations permit, or to loan them to suitable public institutions.
• Printed books. Owners will normally meet the condition if the public can see the books’ spines on the shelves in the Library of a house which opens to the public, with more detailed access by prior appointment under proper invigilation. But some further degree of display might be appropriate, analogously with the medieval missal or collection mentioned above. Where books are not displayed in such a library, the owner should arrange a loan to a public institution.
• Articles kept in a house open to the public but not on the public route. Provided we can agree that this is with good reason, owners may either

• secure access by rotation of them onto the public route; or
• arrange for special tours; or
• secure access by request on days when the House is open

in each case with appropriate enabling publicity.

11. Access to works of art: supplementary matters

(	Charges. Reasonable charges for access and images (when provided under the terms of the undertaking) are permissible. We leave what is reasonable to the owner’s judgement, based on the experience the visitor will receive and any comparable charges elsewhere. Where possible owners should make clear to intending visitors the amount of any such charge (and what it covers if it is anything over and above the entrance charge). We do not discuss charges in any more detail, although we do consider individual cases if it appears that a member of the public has been asked to pay an unreasonable charge.
(	Identity. It is always open to owners and the public to agree such matters among themselves upon what sort of identification, if any, a visitor should produce. Our own position has long been that, in the context of access with a prior appointment, an owner may ask for suitable identity but to seek references would be to go too far. The intending visitor must be prepared to produce identity particulars if asked to do so by the owner. These identity particulars ought not to go beyond one of the following, subject to the intending visitor’s being able to produce it: a passport, or a driver’s licence, or a credit card statement or utility or other statement of account showing the individual’s name and address. Owners or their agents should make clear to intending visitors which of these particulars to bring with them. Owners and intending visitors may agree, but there should be no requirement, to provide these particulars in advance. With open access, owners should not normally seek identity particulars. The exception might be where open access is at what is really the owner’s private residence (as distinct, say, from a House that routinely opens to the public) and this access is provided as a fall back position if exhibition loans do not materialise (see example at 13(h) below. Closed circuit television (CCTV) cameras may be used consistently with the requirements of the general law (e.g. that the public are made aware of their existence). We believe that our approach here is in line with the major organisations that open to the public such as the National Trust and English Heritage.
(	Loans for special exhibitions: insurance. Owners are entitled to be satisfied before making a loan to a public collection that it is suitably insured. They may also look to the borrower for condition reports beforehand and afterwards. Apart from that, all questions of insurance are essentially for the owner, not HMRC. Loans to some public collections are within the Government Indemnity Scheme (GIS). Owners can consult the relevant pages of the web site of MLA on www.mla.gov.uk .
(	Access via loans to Government Ministers etc. Loans for example to Government Ministers or Departments, British Embassies, Town Halls or publicly owned buildings such as Clarence House would not normally qualify as open access. This sort of arrangement would not be acceptable unless the uninvited public either had free access to a space clearly set aside for the purpose or the borrower had given a clear commitment that they would nevertheless gain admission without appointment. We should need to be able to publish unambiguous details on our web site. An arrangement which involved taking a work of art out of the United Kingdom would not be acceptable.
(	Access at distant or remote locations. A remote location would not necessarily be unacceptable, especially if that were the normal location of the work of art. It might well be unacceptable if the remoteness was contrived to reduce the amount of access. We should be unlikely to accept in such circumstances that moving a work of art say from Edinburgh to the Western Isles secured reasonable public access.
(	Use of electronic images. Images of exempt items on a website cannot replace open access but can be used to complement it. For example owners may want to construct their own web pages with a link to our website. This might help both owners and the public and we will discuss in individual cases the part it can play in meeting the supplementary access requirement.
(	Other legislation etc. There are other legislative provisions in which we have no direct interest but compliance with which is implicit in reasonable public access. These pertain for example to health and safety and persons with a disability. On the latter the Disability Rights Commission has a web site www.drc-gb.org and telephone helpline 08457 622 633. And the Historic Houses Association publishes a leaflet (free of charge to its members). The Association’s web site is at www.hha.org.uk and their telephone number is 020 7259 5688.

12. Handling issues

We do not anticipate lengthy correspondence and negotiations during which, after all, there would be neither public access nor tax paid.

We have set out our expectation that an owner claiming exemption would do so willing and prepared to meet his or her access obligations. But we accept that, sometimes, an owner who is quite happy to allow suitable access in principle will encounter practical difficulties. Due diligence on the owner’s part and keeping us informed of progress, future actions and likely timescales will usually see this kind of case to a satisfactory conclusion.

On the other hand, it would not be acceptable if an owner, after claiming the exemption, appeared reluctant to pursue the claim, or generally evinced an air of procrastination. If we could not reach agreement upon access within what we considered an appropriate period, we should have to give written notice that we were no longer prepared to consider the exemption claim and proposed to charge tax instead.

We think that it would be reasonable to give such notice for example if:

• more than six months had elapsed after we first acknowledged the claim for exemption and even the rudimentary access arrangements (see paragraph 8 above) had not been settled; or
• more than six months had elapsed after our agreeing pre-eminence and the detailed access arrangements were still not concluded

but we would not give this sort of notice where we were confident that the owner was pursuing matters diligently and constructively, and with a reasonable chance of a suitable and successful conclusion. And any decision on our part not to allow exemption on these grounds could be the subject of a formal determination and appeal if necessary.

13. Examples

(We have based the suggestions and the access arrangements in these examples on cases and enquiries we have encountered in practice but apart from this they are entirely fictitious.)

(a)	Access in a large House or Castle with a short public opening season. A occupies the family seat Blackacre, a Grade A listed building in Scotland. The walls are hung with portraits of ancestors and other leading figures by Raeburn, Ramsay and others and there are many other important works. Several have been exempt from death duties in previous decades and there are many individual candidates for pre-eminence as well as groups and collections. A’s late father had for some years opened Blackacre House to the public on 25 or 30 selected days each year during the spring and summer. It now attracts thousands of visitors each year. A wants to continue public opening. A is willing to agree open access in Blackacre House on 25 days each year during the spring and summer months. He will provide dates in the Autumn for the year ahead. Visitors would see the works of art as long as they were on the visitor route. The 25 days’ open access at Blackacre is quite acceptable, but we should want the arrangement to include access with a prior appointment at other times. With this we should also seek accommodation of reasonable requests for loans to public collections and requests for images from the curators of public bodies for exhibition purposes. We should have to ask that works of art not on the visitor route be placed on it. If that were not possible, for aesthetic or practical reasons (or both), there would have to be other arrangements for the exemption claim to remain tenable. For example there could be separate tours on all or some of the open days, or visitors on those days could see them, given suitable pre-publicity, “on request”. Again “by appointment” arrangements should operate at other times.
(b)	Access in a large House or Castle with a long public opening season. B is similarly placed at Whiteacre, save that all works of art are on the public route. But she wishes to open Whiteacre House throughout the spring, summer and autumn, some nine months in all. She is quite happy to allow public access to all the works of art throughout that time, but is unwilling to accept a by-appointment arrangement during the three remaining months. She is adamant that she needs these months for rest and for maintenance of the Whiteacre Estate. This sort of arrangement would be quite acceptable. The span of open access in this case is generous and certainly wide enough for us to dispense with a routine by-appointment system. We should however seek (though perhaps not require) willingness to allow access for scholarly purposes and willingness to loan and provide images to curators of public collections.
(c)	A special plea for access only by prior appointment. C owns one, or at any rate no more than half-a-dozen, paintings or portraits. Each might be pre-eminent in its own right (and not just as a constituent of a group or collection). Of working age, he lives privately with his young family without full-time servants in a small manor house Greenacre not far from town. The paintings might or might not hang on his walls. C tells us that it would not be feasible to open his house to the public: there would not be room; it would be intrusive; and the security risks would be too great. Besides, the Greenacre House itself is not exempt from tax and he would have no other reason to have the public anywhere near it. Surely we could agree to access only by prior appointment? We have no option but to decline. The law enacted in 1998 simply does not permit access only with a prior appointment. C must reconsider his position or abandon his claim for exemption. He might do worse than follow the example of D, next.
(d)	Access through loans to public institutions and commercial organisations. D is similarly placed though perhaps a little older and living with a cousin. In response to our enquiry about how she would provide open access to support her claim for conditional exemption she had contacted several public collections. After one or two reversals she had reached provisional agreement with the local authority Art Gallery. They would display one of her paintings for one month each year. The neighbouring local authority Art Gallery agreed to display a further painting for three months in each of every third year. The National Trust was pleased to accept a portrait on “permanent loan” for display at Redacre House. Finally, a local auctioneer agreed to display the remaining painting each May for the foreseeable future. D now seeks our views. This is quite a mixture. We should have no difficulty with the arrangements with the local authority galleries, subject to access by appointment when the paintings were not on loan. We should again seek an undertaking to meet reasonable requests for loans and providing images to curators of public collections. If the loans were not indefinite we should need D to confirm that she would not terminate the arrangement. And as it is an indefinite loan we could agree the National Trust deal. The arrangement with the auctioneer looks unlikely to stand the test of time. It is open-ended, but we cannot sensibly expect a commercial concern to adhere to it indefinitely. Their primary concern is not after all to preserve and display the national heritage. The agreement will need to cover what will happen if this arrangement comes to an end. An undertaking to arrange, in the event of the arrangement with the auctioneer falling down, for the item to be exhibited at a museum or gallery one month every year or for three months in every three years will be acceptable.
(e)	Short-term access proposals only: the need for a long-term commitment. E seeks conditional exemption in respect of one painting. The local authority-run City Museum had many items it had not the space to display but reluctantly agrees to display this painting for one month at least in the following year. E trenchantly declines our entreaties to make an arrangement to comprehend future years’ access, insisting that she will find alternative means in good time. E’s suggested access does not go far enough. As we have said at paragraph 7 above, even if E will not spell out the detail, her undertaking will need to reflect that, for the period it covers, she will find appropriate means to achieve the access standard, and within defined parameters.
(f)	Access to Archives; access to works of art by reviewable loan to a public collection. F owns a family archive and some complementary pieces of furniture. She offers access to the archive by loaning it indefinitely to the local County Record Office. She offers access to the furniture on “permanent loan” (reviewable every three years – but she states that she will not be the one to terminate the loan) to the local authority’s Museum. The archive arrangement is with a public Record Office and indefinite and as such is entirely acceptable. But we would expect the owner to arrange with the Record Office to deposit a full catalogue* with The National Archives (HMC) (*note: awaiting outcome of discussions with National Archives.). The catalogue would thus be available for public access. Access to the material itself would then be at the County Record Office by arrangement. With the furniture, as F will not terminate the loan arrangement with the public collection we can accept it. If the public collection itself decides to terminate its borrowing we should then need F to come up with a suitable replacement arrangement within a reasonable period of time. (Note: F could have declined to agree not to terminate the loan. She could instead have undertaken that should she terminate it she would, without a break implement other new and satisfactory arrangements.)
(g)	Access through bespoke arrangements with a public collection. G owns a collection of ten nineteenth century paintings. His family already has a good relationship with a University Institute. He agrees with them either that the Institute would conduct the public, at a reasonable cost, on tours to his home on 25 days in August each year or that it would exhibit three paintings each year for six months at a time. There would be by-appointment access at other times. The Institute already has images. Either of these arrangements would be entirely acceptable provided that the owner allows by appointment access at other times and is willing to make loans for other exhibitions and provide images to curators of public collections.
(h)	Access “at home”: whether reasonable public access. H has inherited some paintings or other (pre-eminent) works of art. He lives in a modest dwellinghouse unsuitable for opening to the public. He is willing to arrange loans to museums or galleries of his choosing and even to have open access at home. But he is unwilling routinely to part company with the works of art for a month each year to a public collection. Something along these lines would meet part of the requirements of the conditional exemption legislation in that public access would not be confined to access with a prior appointment. Whether it would secure reasonable access to the public is another matter. Generally, access at an owner’s home in these circumstances suits neither the owner nor the public. The owner has to consider all the security and practical issues in providing access without prior appointment. We suspect that the public interest too is much better served if access is provided in public galleries or museums where they can be seen with other fine works. We therefore look for such items to be displayed long term or regularly in museums or galleries. Where however owners have difficulties in museums or galleries committing themselves to such arrangements we will be looking for the owner to agree to a much more proactive rôle in seeking exhibitions. In these cases access at the residence will be required to supplement this, both with and without appointment, without appointment as a fall back position if exhibition loans do not materialise. Once we had settled the detail of H’s arrangement and formally agreed the exemption, we should have to monitor its viability by asking him for details of how much access the arrangement delivered each year. We could then agree to continue the arrangement if we felt it delivered sufficient access. If it did not, or H felt that he could not sustain it, we could agree to vary it. Failing agreement we could propose a variation and seek the independent Special Commissioner’s agreement to it if H would not accept it.

Part II: Publication of undertakings and publicity in general

14. General Approach

The publication of undertakings is linked with access both in the legislation and practically. The 1998 legislation provides for the terms of post 1998 undertakings to be publicised and for the terms of earlier undertakings to be publicised if it is just and reasonable to do so. These terms include where and when the items can be seen without an appointment.

Whilst the 1998 legislation does not spell out how the publicity is to be given it was made clear at the time that our website would be central. Compliance with the publication requirement therefore requires a suitable reference on our website database at www.ir.gov.uk/heritage. Our practice is to agree the terms of this publicity at the same time as we agree the terms of the undertakings themselves.

We divide the database into three sections.

• One section is for Works of Art. This section provides individual descriptions of exempt works of art. Our research indicates that curators, specialists and enthusiasts mainly use this part.
• The second section is for Land Buildings and their Contents. This section provides entries of exempt land and buildings and is designed for the public with a more general historic or artistic interest. Each entry includes a generic description of the tax exempt historic contents of the exempt buildings, including works of art, much in line with the approach used by the National Trust.
• The third section, Collections of works of art and other objects is similar to the second but is for collections of objects, including works of art, that are in a building which is not itself tax exempt. (“Collection” here has its natural meaning as distinct from the technical meaning described in paragraph 2 above.)

15. The material for publication

In more detail, the owner’s undertakings must secure publication of the following material:

• For a work of art – object, group or collection – exempted as pre-eminent in its own right post 1998.

An entry in the Works of Art section of the web-site database comprising: –

• a full description of the object, group or collection
• the county (though not the full address) in which it can normally be seen
• viewing details including the dates the public can see it and, if applicable, the museum, gallery or other venue for its display
• a contact point for information, for by appointment access and for loans for special exhibitions.

Each object, group or collection has to be fully described in this part of the web-site, the entries cannot be restricted or diluted, e.g. by removing the location from the description of a painting or the name of a family member from the description of a portrait. Reasonable access to the public depends on a full description and museum and gallery curators require a full description when considering items for exhibitions.

We nevertheless appreciate that a full description of a group or collection might be unwieldy. Where appropriate, we shall expect owners, on request, to provide enthusiasts, curators, students and the public with a list of the works making up the group or collection.

In addition there is a hyperlink to other works of art in the same ownership. For the public this hastens the process of establishing what they can see in a given trip. It also potentially saves owners and the public from several meetings for viewing where one would suffice.

For security reasons we do not insist upon the location, at which items are displayed, being shown in the entry on this part of the website.

• Collections or a range of works of art

But the public need to know where they can see collections of works of art and we achieve this by an entry on the Land Buildings and their Contents section or the Collections of works of art and other objects sections of the website database. These entries comprise: –

• (where appropriate) individual entries of exempt land and buildings
• generic descriptions of the collections of exempt objects – the tax exempt historically associated contents (if any) and works of art
• where and when these collections can be viewed (or where to assemble to undertake a tour of them)
• a contact point for information.

These generic descriptions normally seek to draw attention to the best or most attractive artists or pieces, rather than describing them individually. E.g. A collection of family portraits including works by Raeburn and Reynolds or A collection of fine 18th Century French furniture. Much the sort of thing, in other words, that would appear in publications such as Hudson’s. The entry will also highlight any historical significance and important sitters for exempt portraits.

Historically associated contents are not listed individually on the website but owners will make the details available to the public either on request or by a list at the building at which they are displayed.

16. The need for up-to-date material

It is important that the particulars on our web site are kept up-to-date. We look to owners to decide upon and provide updated details to us showing the following year’s arrangements normally when providing copy for the relevant publication (such as Hudson’s) or by the end of October each year.

A failure to update the publicity is a breach of the owners undertaking and this could result in loss of the tax exemption and a resulting claim for tax.

17. Other publicity requirements post 1998.

For items exhibited in museums or galleries or displayed in houses which themselves are open to the public, the publicity for these attractions, together with our web-site publicity, is sufficient. For items e.g. displayed in houses not normally open to the public, further publicity will be necessary – in the local press or at a local tourist information centre and in a national publication or guide. Owners who have undertaken to do so will also provide, at a reasonable charge, images for museum and gallery curators, enthusiasts, students etc. They will also provide to the public, if requested, an anonymised copy of the undertaking, a reasonable charge can also be made for this

Part III: Access by prior appointment: good practice

18. The 1998 legislation applies to undertakings after 30th July 1998. Many, as well as providing for open access, contain provision for viewing tax-exempt objects with a prior appointment. Many pre- 1998 undertakings provide for access only by prior appointment. What study there has been suggests that most appointments have been for scholarly rather than recreational purposes. Whether this will remain the case with better publicity for the Conditional Exemption scheme, time will tell. In any event the system must work properly. What follows applies to by-appointment access generally – both to post- and pre- 1998 arrangements.
19. The public will select items for viewing by appointment from the information on the HMRC web-site. We shall have agreed the nature and extent of this information and the manner of its publication with the owner. The information available to them is one or more of the following:–

• A generic description of a collection or range of exempt items from the Land, Buildings and Collections part of the web-site and
• Individual exempt items from

From this information the public can ask to see individual items, a range of items or all of the items belonging to an owner.

20. In addition to descriptions of the exempt items, the web-site shows the broad geographical location in which the item maybe viewed and the contact details for arranging an appointment. The contact maybe the owner or an agent, solicitor etc nominated by the owner. The public can simply make contact by, for example, the telephone, fax or letter (or, if offered by the owner, e-mail), identify themselves, and agree upon a mutually convenient time and place for viewing. (The question of identity is considered at paragraph 11 above.)
21. The contact point should arrange the appointment there and then if possible, or as soon as reasonably practicable if arrangements have to be made with the owner. In particular if a member of the public seeks an appointment over the telephone the agent should not respond by seeking the same request in writing. But it is in order, once details of the appointment have been agreed, for the agent to ask the member of the public to write to confirm them.
22. The owner does not have to provide access at the location the item is normally kept. It can be shown within the county shown on our web-site or elsewhere if both parties agree. Owners do not have to be present. But the location chosen must be reasonable and when a viewer wants to see more than one item or a whole collection they should, if reasonably possible, be available to be seen in one visit.
23. Owners should normally allow viewing on the day requested by the prospective viewer or offer a choice of viewing between 10am and 4pm on any one of at least three weekdays and two Saturdays or Sundays within the following four weeks.
24. Access is for the general public, not just for specialists and enthusiasts. A member of the public should not be refused access unless the owner has a positive reason to believe a caller is wasting their time or provides a real risk to their, or their household’s, security. (In that case the owner may wish to confer with HMRC before making any commitment). If viewing is provided at the owner’s home, the owner is entitled to be satisfied, by asking for identification, that the visitor is the person who made the appointment (see paragraph 11 above). But owners or their agents should not seek references or cross question the public as to why they want to see the exempt items. They should not be off- putting. Their conduct should be consistent with the undertaking to provide reasonable public access. As also mentioned at paragraph 11 above, closed circuit television (CCTV) cameras maybe used consistently with the requirements of the general law (e.g. that the public are made aware of their existence).
25. All cases turn on their own particular facts. But some examples of possible pitfalls when providing access by appointment might be helpful:–

(a)	The owner is concerned at a request for viewing by a number of visitors together. We expect owners to tell us of foreseeable difficulties so that our web site publicity could carry the message for example “due to limited space, groups of no more than five persons”. Beyond that an owner may seek to fragment particularly large groups by offering appointments for an acceptable numbers of visitors at a time.
(b)	The owner fears what he or she considers to be an unwholesome visitor because of the latter’s gauche or semi-literate style. Access is for the general public, not just for specialists and enthusiasts. But viewing does not have to be at the owner’s residence. It may be arranged at other premises in the county shown on our web site and owners are not obliged themselves to be present.
(c)	The owner wishes to make a charge. Owners may make a reasonable charge (see paragraph 11 above) to view the object. This charge does not extend to fees for third parties for their time and facilities. For example, if an owner wants to show the item at his or her solicitor’s or bank manager’s office, the charge must not include the legal or banking fees associated with the viewing.
(d)	The owner does not want the public to take photographs or handle an object. The public should not take photographs or handle an object without the prior agreement of the owner.
(e)	The public cannot reach the owner’s nominated public contact point. That individual or his or her firm: “know nothing about the matter”; “the person has left the firm”; or “is on holiday”; or “will (but ad infinitum fails to) return the call”. Or the nominated contact point cannot reach the owner. Prima facie this is denying the public’s entitlement to access. It is the owner’s responsibility to ensure that the public can make contact at the point given on our web-site and can arrange an appointment. If they fail to do so we will investigate the circumstances and if appropriate accept suitable assurances for the future. In the absence of such assurances or a subsequent failing we will claim the tax on the current value of the items concerned. The appointment system, and indeed public access and hence the conditional exemption scheme itself, depend on good communication, especially where there is an intermediary. The benefits to owners evaporate if their agents fail in their duties or communication between the owner and the agent breaks down. It goes without saying that cases turn on their own particular facts, but the public’s contact point is no more than the owner’s nominee. Owners must ensure that their agents are properly briefed and that they make suitable arrangements to cover absences. Owners cannot hide behind their agents if things go wrong for it is the owner who has undertaken to take the steps that secure reasonable public access.
(f)	An appointment is not possible because the object is [temporarily] unavailable for viewing An item might be on short-term loan to a public collection or undergoing cleaning, restoration etc. In this case the owner or contact point should say so, providing details of any loan, and tell the public when appointments can resume. If the object is moved to another private location or misplaced the owner should so inform us. Failure to do so might constitute failure to take sufficient steps to maintain and preserve the work of art or to secure public access, or both.
(g)	Viewing is frustrated by holiday arrangements. Holidays can intrude in several ways. We have already considered the case where owners or agents are absent without cover. Members of the public might wish to view an object which is conveniently close to their holiday destination. It would be prudent to seek the appointment well in advance to avoid disappointment. The four-week period – see paragraph 23 above – would not help them if by then they had returned home. Owners too take holidays, and their absence might coincide with the public’s preferred visiting time. The owner can suggest something within the four-week period but again that might not assist the holidaymaker who might by then have returned home. If the public leave it until the last minute to seek an appointment there might be nothing reasonably to be done. But where they have sought the appointment well in advance the owner should accommodate the date requested by the prospective viewer save where this would not be reasonably possible.
(h)	The owner or the public breaks an appointment. As a rule owners should not break appointments without very good reason. Otherwise, they run the risk that they will breach their access undertakings and hence be liable for tax. This does not mean that owners might not try to reach agreement with the public to agree another date. We trust that the public would keep appointments or at least be courteous enough to give notice to the owner to arrange a different date. Failure to do so is not normally grounds for the owner to deny access in the future.
(i)	Acting in accordance with the invitation on our web site, someone tells us with details that they think they have been denied reasonable access. We will examine any such assertion very carefully. If we conclude that there has been a breach of an owner’s access undertaking, we will seek its remedy. Where that is not possible, or if the owner has transgressed before, we will claim tax on the current value of the object or objects concerned. Whether a tax claim arises with respect to a particular object or extends to all the tax exempt objects belonging to that owner depends on what had occurred. If someone had asked to view an exempt object, one of 20 belonging to the owner, and the owner’s conduct denied access solely to that object the claim for tax would just to that item. But if, for example because the owner or agent were continuously incommunicado, the denial of access clearly extended further, so too would the claim for tax.

26. No doubt there are many other possible reasons for owners or the public to find fault with each other. Our web site invites the public to tell us if they feel short- changed. We should also be glad to hear from owners and their advisers where an owner is unsure how best to proceed.

APPENDIX

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Model undertaking and web site entries based on the Example of A and Blackacre at paragraph 13(a) of this Note. These models assume conditional exemption for both the House and the Works of Art

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				DP000/2/00A The Late A
Undertakings under §31(2) Inheritance Act 1984

1	I, A II, have applied for designation under §31(1)(a), Inheritance Tax Act 1984 (“the 1984 Act”) of the objects, groups and collections listed in the attached Schedule (“the Works of Art”). This is for the purpose of claiming conditional exemption from Inheritance Tax under §30 of the 1984 Act in the estate of the late A who died on 1st January 2000.
2	In this document, which together with the Schedule are collectively referred to as “the undertaking”, I hereby undertake as follows.
3	I undertake with respect to each of the Works of Art that during my lifetime or until it is earlier disposed of whether by sale or gift or otherwise:
	(a)	to keep it permanently in the United Kingdom and not to remove it temporarily except for a purpose and a period approved by HMRC ;
	(b)	to take reasonable steps for its preservation;
	(c)	to take the following steps to secure reasonable access to the public:

		(i)	to allow the public to view each of the Works of Art without a prior appointment at Blackacre House on at least 25 days each year (“the access days”) between 1st April and 30th September, including the spring and summer public holidays;
		(ii)	to notify Capital Taxes (“CT”) of the access days for each forthcoming year no later than the end of the preceding October;
		(iii)	at all other times to make each of the Works of Art available either to the public to view by prior appointment or to curators of appropriate public collections on loan for special exhibitions;
		(iv)	to provide images of all or any of the Works of Art on request to curators of public collections or direct them to a place where such images are available; and in either event to notify them that these Works of Art are available for loan in accordance with sub-paragraph (iii) above.
	(d)	to take the following steps to publicise the terms of the undertaking:
		(i)	to allow reasonable details of the arrangements, including where and when access without a prior appointment is available, to be published by the HMRC on its web site, or in any successive publishing medium, and via any other appropriate website and in any other reasonable manner it sees fit;
		(ii)	to provide, at reasonable cost, a copy of the undertaking, without personal particulars, to any member of the public who requests it;
		(iii)	to provide details to local tourist information centres of the arrangements for access on the access days;
		(iv)	to provide CT with details of a person or firm the public and curators can contact with a view to arranging visits, appointments and loans, and obtaining further particulars and keeping CT informed of any change in these particulars;
4	To provide, at CT’s request, any information that HMRC might reasonably require in order to ensure that the terms of this undertaking are being observed, including as far as feasible the dates of public access and the numbers attending.
5	To notify CT immediately in the event of a disposal of all or any of the Works of Art whether by sale or gift or otherwise, and of any material change to any relevant circumstance.

I have read the attached Notes to the Undertaking which do not themselves form part of this undertaking.

Signed by

AII

On (date)

Notes to the Undertaking

These Notes do not form part of the Undertaking.

1.	Where property or an object is conditionally exempt under §30, Inheritance Tax Act 1984 (“the 1984 Act”) a chargeable event with respect to it would occur under §32:–

		on the death of a person beneficially entitled to it; or
		on its disposal, whether by sale or gift or otherwise unless the sale were by private treaty to a body within Schedule 3 to the 1984 Act, or the disponee otherwise than by sale provided a suitable replacement undertaking; or
		if the Board of HMRC is satisfied that there has been failure in a material respect to observe the terms of the undertaking.
2.	Under §216(7) of the 1984 Act, if you are liable for tax chargeable under §32, you must deliver an account to Capital Taxes before six months have expired from the end of the month in which the chargeable event occurred. If your account is late then, under §245 of the 1984 Act, we may levy a penalty of £100. This rises to £200 if it is more than 6 months late, and we may levy a further penalty of up to £3,000 if it is over 12 months late.
3.	If you need our approval under §31(2)(a) of the 1984 Act for the temporary export from the United Kingdom of a conditionally exempt object please apply to us in writing. Our address is shown at paragraph 7 below. Please apply as early as possible and well in advance of any arrangements for transit.
4.	In the case of an object that is more than 50 years old (“an antique”) you might need an export licence before you may export it from the United Kingdom.

	(i)	Paragraph 3(b), Export of Goods (Control) Order 1992 prohibits the export of an antique to any destination in the Channel Islands without an export licence. If you intend to export an antique you should alert the Department for Culture, Media and Sport, at their Export Licence Applications Section, Cultural Property Unit, 2-4 Cockspur Street, London SW1Y 5DH. (Please address any enquiries about export licences to that Department – and not to us.)
	(ii)	The Department for Culture Media and Sport asks that owners of objects conditionally exempt from capital taxation give three months’ notice of an intention to sell. This notice should go to The Museums, Libraries and Archives Council (MLA) at Victoria House, Southampton Row, London, WC1B 4EA. The Reviewing Committee on the Export of Works of Art may take into account any failure to do so in relation to the length of any period for which they defer the export licence application.
5.	If we are satisfied that you have failed in a material respect to observe any of the terms of your undertaking, we may withdraw the conditional exemption. This would give rise to a charge to Inheritance Tax. We shall from time to time seek information from you to ensure that the terms of your undertaking are being observed.
6.	It is open to either of us from time to time to approach the other to agree to vary the terms of your undertakings. Neither of us can make a variation unilaterally but we may seek the consent of a Special Commissioner of HMRC that a variation we propose is just and reasonable in all the circumstances.
7.	To ensure that our records are accurate, please notify us as soon as possible of any alteration to any information given in connection with the application for conditional exemption, the undertaking or the particulars shown on our Web Site. Our Web Site address is www.visitUKHeritage.gov.uk and our postal address is HMRC Capital Taxes, Heritage Section, Ferrers House, PO Box 38, Castle Meadow Road, Nottingham NG2 1BB.

This DRAFT offers an example of what the public would see on the Works of Art section of our web site after searching for paintings in [Scotland] and “clicking on” the description of one of your Works of Art.

Works of Art: Detailed Result

Unique ID:	12345
Category:	Paintings & Miniatures
Access Details:	(i) the public may view this painting without a prior appointment on at least 25 days each year between 1st April and 30th September, including the spring and summer public holidays; the dates for 2004 are Sundays and Mondays from 31st May to 30th August inclusive. (ii) the public may view this painting at all other times by prior appointment; (iii) this painting might from time to time be loaned to a suitable public collection. The arrangements at (i) and (ii) would lapse during the currency of any such loan.
Contact Name:	A Agent
Contact Address:	Agent’s House, Atown, AG1 1AA
Contact Reference:	A/AA
Telephone No:	Atown 1234
E-mail:	AA@Agent.com
Description:	A Painter: A view from Blackacre House, 24cm by 48cm, oil on canvas

Undertakings This is a link to the text below – q.v.

Other Linked Exempt Items This link will “bring up” the other Works of Art.

Works of Art: Principal Undertakings

Unique ID:

12345

Principal Undertakings:

1. To keep the painting permanently in the United Kingdom and not to remove it temporarily except for a purpose and a period approved by HMRC; 2. To take reasonable steps for its preservation; 3. to take the following steps to secure reasonable access to the public: at least 25 days each year (“the access days”) between 1st April and 30th September, including the spring and summer public holidays; (ii) to notify Capital Taxes (“CT”) of the access days for each forthcoming year no later than the end of the preceding October; (iii) at all other times to make the painting available either to the public to view by prior appointment or to curators of appropriate public collections on loan for special exhibitions; (iv) to provide images of the painting on request to curators of public collections or direct them to a place where such images are available; and in either event to notify them that the painting is available for loan in accordance with sub-paragraph (iii) above. 4. to take the following steps to publicise the terms of the undertaking: (i) to allow reasonable details of the arrangements, including where and when access without a prior appointment is available, to be published by the HMRC on its web site, or in any successive publishing medium, and via any other appropriate website and in any other reasonable manner it sees fit; (ii) to provide, at reasonable cost, a copy of the undertaking, without personal particulars, to any member of the public who requests it; (iii) to provide details to local tourist information centres of the arrangements for access on the access days; (iv) to provide CT with details of a person or firm the public and curators can contact with a view to arranging visits, appointments and loans, and obtaining further particulars and keeping CT informed of any change in these particulars; 5. To provide, at CT’s request, any information that the HMRC might reasonably require in order to ensure that the terms of this undertaking are being observed, including as far as feasible the dates of public access and the numbers attending. 6. To notify CT immediately in the event of a disposal of the painting whether by sale or gift or otherwise, and of any material change to any relevant circumstance.

This DRAFT offers an example of what the public would see on the Land, Buildings and their contents section of our web site after searching for properties in Scotland and “clicking on” Blackacre House.

Land, Buildings and their contents: Detailed Result

Country:	Scotland
Name of Property:	Blackacre House
Description:	Blackacre House and Works Of Art
Access Details:	Directions: on the A00 midway between the A000 and the B0000 25m south of Atown. Blackacre House and its contents are open to the public on Sundays and Mondays from the Spring Bank Holiday until the August Bank Holiday inclusive. Information about other opening times and activities can be found at www.blackacre.org.uk. Blackacre House contains an extensive collection of portraits and other material associated with the A family including works by Raeburn and Ramsay. ACCESS - 2004 Sundays and Mondays from 31st May to 30th August inclusive.
OS Grid Ref:	AA 000 000
Contact Name:	A AGENT
Contact Address:	AGENT’S HOUSE, ATOWN, AG1 1AA
Telephone No:	Atown 1234
Email:	AA@Agent.com

Undertakings This is a link to the undertakings in relation to Blackacre, specimen below.

Map Image This is a link to the map of the Blackacre Estate, not shown in this example.

Land & Buildings & Collections: Principal Undertakings

Unique ID:	67890
Principal Undertakings:	1. XXX 2. YYY 3. ZZZ