Monday, July 23, 2012

I Am the Taxman - Rauschenberg's Canyon 2012

I Am the Taxman

Remember the great Beatles song, I Am the Taxman, penned by George Harrison? It ends with the classic line "and you're working for no one but me."

Today is July 23, the day on which most of us in California stop working to pay the government's costs, and start working for ourselves.

This blog though is not about excessive taxation rates.

It is about the IRS's Machiavellian treatment of the Estate of Ileana Sonnabend, a famous New York art dealer who died in 2007 at 92. Her estate included several works of art.

Estates owe inheritance taxes, or "death taxes" when we die. Ignoring the vagaries and technicalities of tax law, the taxes are based on the estate's net assets.

Valuing the assets can be tricky. Tangible assets are easy to appraise. Intangibles, such as works of art, have to be appraised by experts. It is based on the fair market value of the asset; that is, an agreement between a willing purchaser and a willing seller.

Sonnaband's heirs filed a return stating art assets of $876 million. They have paid $331 million in federal estate taxes and $140 million in New York State taxes. They sold millions in paintings by Jasper Johns, Jeff Koons, Andy Warhol, and Cynthia Trombly to cover the costs. Obviously Ileana had a poor estate plan.

One painting though is in dispute, Canyon, by Robert Rauschenberg, currently on long term loan to the Met. The estate got appraisals from three sources, including Christy's. The appraised value is $0.00.

How can one of Rauschenberg's most famous works be valued at nothing?

The 1959 Canyon is not a traditional painting, or work of art. It is an assemblage or “combine.” The artist threw together any number of convenient objects, such as oil, house paint, paper, metal, nails, wood, paper, et al in some of his works.

Canyon is unique though in that it includes the carcass of a bald eagle. Two federal statutes, the Migratory Bird Act of 1918 and the 1940 Bald and Golden Eagle Protection Act make it illegal to possess, sell, purchase, barter, import or export a bald eagle, whether dead or alive. The artist declared the dead eagle was killed and stuffed by Teddy Roosevelt’s Rough Riders before the statute was enacted. Hence, the painting could be loaned to the Met.

However, the painting cannot be sold. Hence, it has zero value. 

The IRS apparently hypothesized a millionaire Chinese art collector, who would be willing to buy the painting on the black market and smuggle it out of the country.

Hence, it came up with a value of $65 million on the painting, yielding a tax of $$29.2 million. In addition, the IRS assessed a deficiency of an additional $11.7 million on the estate for failure to pay the tax.

The heirs can’t sell the painting. Hence, there is no willing seller. The executor would commit a felony in selling the painting. The purchaser would also commit a felony.  

The canyon of difference in assessed value managed to make Forbes Magazine in February and the New York Times yesterday. This is not a case where the parties can split the difference.

Only the IRS can turn something into nothing. Machiavelli would be proud of the agency.

I am the Taxman

“Now my advice for those who die
Declare the pennies on your eyes
‘Cause I’m the taxman, yeah. I’m the taxman.
And you’re working for no one but me.”

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