IF PHILOSOPHERS CAN'T TELL US WHAT ART IS, CAN OFFICIALS?

'One of the most elusive of the traditional problems of human culture [is] the nature of art.'1 Over millennia, philosophers have failed to agree on what 'art' is or have resorted to an apparently circular reductivism, such as, art is what is found in an art gallery. Despite this uncertainty, it is not unusual for tax laws to initially place an interpretative duty on Revenue or Customs services to decide which things constitute artworks under particular pieces of legislation. This power to construct meaning is, however, constrained. In performing their hermeneutic function, officials construe laws and regulations created by lawmakers, and the ultimate interpretative power lies with the courts. The most famous, albeit not unique, example of officials engaging with artworks is the Bird in Space case which arose from customs officials in the United States categorising one of Constantin Brancui's modernist sculptures as a hospital and kitchen supply. This article surveys tax laws that require officials to engage in aesthetic judgment and analyses notable cases to elicit key issues. The principal purpose of the article is to consider whether a customs or revenue service, which presumably represents a broad cross-section of society but not art experts, should be charged with making such decisions. While the discussion is specific, it remains relevant to drafting tax statutes in general.