The recent history of Conditional Exemption
Until the Finance Act 1998, owners of exempt objects and works of art were able to give access to their exempt property ‘by appointment’ only. However, for items exempted after 1998, owners are required to give, ‘reasonable public accesses, without prior appointment.’ Access could be at a museum or gallery, or at the owner’s home, as long as the object can be seen on the public visitor route. The exact requirements of access will depend on the terms of the undertaking agreed with HMRC.
Claims for Conditional Exemption for ‘pre-eminent’ items
The minimum requirements for public access for objects that are considered ‘pre-eminent’ are at least 28 days (or 25 days in Scotland, Wales, and Northern Ireland) of open access in each calendar year. HMRC also expects a minimum opening time of four hours per day, or a set number of guided tours (see below). When the property is not open to the public, the tax-exempt items must be made available for viewing by appointment. In our experience, apart from the minimum 28 (or 25) days per year, the other requirements for access are negotiable and plans for opening should be discussed with HMRC. In the case of the 28-day minimum, it is possible for this to be rolled up into multiples (e.g. three months of open access every three years). Although HMRC’s guidance does not go further than three months every three years, a case could be made for greater multiples, should circumstances allow. HMRC does not require specific opening dates and times to be fixed in the undertakings; it is understood that these may vary from year to year. It is permitted to charge visitors a reasonable entrance fee, but owners should publicise these charges clearly.
Claims for Conditional Exemption for ‘Historically Associated’ objects
In the case of claims for exemption for historically associated objects, access requirements can be more onerous; public access may be required for up to 156 days per year, dependent on the nature and size of the property (the maximum would typically only be demanded in the case of the very largest properties). If the house is itself exempt, access requirements for its chattels should typically match those for the house.
Open access vs guided tours
Instead of free-flowing access for four hours per day, owners may offer two advertised guided tours per day. They can be made bookable in advance, but if people do turn up on the day, owners are obliged to allow them to join in if space permits. Either way, the legislation understands that circumstances change and allows for access arrangements to be varied from time to time.
Access ‘by appointment’ and other requirements beyond free-flowing public access
When exempt objects are not on open public display, there is still a requirement to make the object accessible ‘by appointment’ — which is taken to mean as soon as is reasonably practical. HMRC guidance requires that this is between 10am and 4pm, on the day the member of the public requests, having selected from a choice of at least three weekdays and two Saturdays or Sundays, within four weeks of their approach. Requests do not have to be in writing, but once the details of the appointment have been agreed they may need to be confirmed in writing. Access does not have to be given at the place where the item is normally kept, but if the appointment is at the owner’s home it is useful to note that they are entitled to ask visitors for identification. Owners are also expected to be willing to make their exempt objects available for loans to public exhibitions if requested.
Books, archives, and sets of objects
In the case of printed books, it is sufficient that the public can see the books’ spines on the shelves in the library of a house which opens to the public. Greater access than this can be provided by way of appointments, made in advance. In some cases, it may be necessary to go further, for example by having sample pages on open display. Where books cannot be displayed in the context of a library like this, the owner will need to arrange a loan to a public institution. Where the exempt property is an archive, access by appointment is generally sufficient. This can be at the owner’s home (if the property is suitable for the purpose) or, commonly, at a local record office. Where a collection includes manuscripts and drawings, HMRC expects that items, or at least a representative sample page, to be put on display. When it comes to sets of items of any other kind (e.g. a large dinner service), the requirement is generally to display a representative selection, with access to the rest by appointment only.
Conclusion
Meeting the requirements of public access under the post-1998 rules is not always easy. Owners need to think carefully about how they can accommodate the required opening times. This is particularly the case where objects have been exempted on the basis of ‘historical association’ with the more onerous access requirements. Nevertheless, with the right guidance and professional advice, public access can usually still be managed effectively.
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