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The lawyers representing the heirs of art dealer Ileana Sonnabend intend to debate whether the IRS can establish a value of artwork that cannot be sold, in order to collect $29 million in taxes.

The artwork under discussion is “Canyon” a 20th Century mixed media work created by Robert Rauschenberg in 1959 that was inherited by Mrs. Sonnabend’s children when she died in 2007. Since the sculpture contains a stuffed bald eagle, a bird that is under the Federal Protection Act for Endangered Species, the heirs would be committing a felony if they tried to sell it. As a result, their appraisers have valued the work at zero.

However, the IRS has an altogether different opinion – they valued “Canyon” at $69 million and they are demanding that the heirs pay $29.2 million in estate taxes. If it is illegal to sell the work, how can the IRS value it at $69 million? Although “Canyon” is a landmark masterwork of postwar Modernism, three appraisers including Christie’s had valued it at zero. In fact, many tax lawyers, estate planners and art collectors are astounded with the agency’s decision considering the I.R.S. guidelines stipulate that in figuring an item’s fair market value, taxpayers should “include any restrictions, or covenants limiting the use or disposition of the property.” In this case, the 1940 Bald and Golden Eagle Protection Act and the 1918 Migratory Bird Treaty act make it a crime to possess, sell, purchase, barter, transport, import or export any bald eagle – alive or dead. Although Mrs. Sonnabend was able to maintain ownership of “Canyon”, in 1998 Rauschenberg was required to submit a notarized statement attesting that the eagle had been killed and stuffed long before the 1940 law was established. Further, the I.R.S. claimed that ownership could only be retained if the work remained on a long-term loan basis at the Metropolitan Museum of Art in New York.

The attorney’s for the clients contend that the I.R.S.’s handling of the work has been confusing. Last fall the agency valued “Canyon” at $15 million and after the family refused to pay the taxes the agency sent a formal letter stating they increased the value to $65 million. Evidently, the new valuation came from the agency’s Art Advisory Panel that is made up of experts and dealers who advise the I.R.S.’s Art Appraisal Services Unit. One member, Stephanie Barron, a senior curator of 20th Century art at the Los Angeles County Museum of Art, where “Canyon” was exhibited for two years said “the group evaluated the work solely on its artistic value without reference to any accompanying restrictions or laws.”

Why didn’t the I.R.S. Art Advisory Panel include the governments endangered species restrictions when determining their valuation? Can artwork be valued solely on artistic attributes? Is the I.R.S. using a hypothetical black market sale scenario to base their valuation and presume that the taxpayers would engage in an illegal activity in order to sell their assets?

At the moment the heirs are clearly in a bind. If they don’t pay the taxes the I.R.S. claims is due, they would be guilty of violating federal tax laws and if they try to sell “Canyon” in order to pay their tax bill, they could go to jail for violating eagle protection laws. And since the heirs assert that “Canyon” has no dollar value, they could not claim a charitable deduction by donating the work to a museum.

It appears that the government has unfairly painted the taxpayers into a corner leaving them with no choice but to challenge the I.R.S.’s decision. Perhaps a new court precedent will be established when they both meet next month to debate in Washington.  From an appraisers standpoint, a value range of zero to $69 million is difficult to fathom!


Resource: The New York Times, Art Piece’s Sale Value? Zero. But the Tax Bill? $29 Million, Patricia Cohen