IRS Looking to Confiscate Taxes on Over $1 Billion of Confiscated Nazi Artwork

November 6, 2013 — Leave a comment

Tax authorities in Munich set out on a routine investigation to search the home of 80-year-old Cornelius Gurlitt, a suspected tax cheat. Since Gurlitt is the reclusive son of a Munich art dealer, perhaps the tax authorities thought they might find some works of art in addition to evidence of tax evasion.

Marc Chagall (1887-1985) was the "quintessential Jewish artist of the 20th century" (Photo Credit: Wikipedia)

Marc Chagall (1887-1985) was the “quintessential Jewish artist of the 20th century” (Photo Credit: Wikipedia)

However, they surely didn’t expect to stumble across 1,400 or so paintings, including ones by Matisse, Chagall, Renoir, Toulouse-Lautrec, Picasso and a host of other masters. Some were previously not known to have existed, while others appear to have disappeared around the time the Nazis raided German museums and public collections in the late 1930s to confiscate works they classified as “degenerate.”

The treasure trove of priceless art vanished during the Nazi regime and is valued at $1.35 billion. The bizarre story first appeared in the German language magazine Focus, though the BBC has a summary in English.

The BBC noted that the U.S. Holocaust Memorial Museum estimates that the Nazis seized approximately 16,000 artworks during the 1930s and 1940s. Of the 1,500 works recovered in the Munich tax search, 200 of them are reportedly the subject of international warrants.

German Customs calls it a true treasure trove, a term that has a particular meaning to the IRS. And while the Germans have the collection in a warehouse sorting it out, it’s worth asking if the IRS can get a piece. Sound far-fetched? Not really.

The IRS likes “treasure trove,” a term that actually appears in the tax law. It is just one example of the astounding breadth of the U.S. concept of what’s income for tax purposes. The most famous case on treasure trove is Cesarini v. United States, 296 F. Supp. 3 – 1969. Mr. Cesarini bought a used piano for $15 and found nearly $5,000 in cash inside.

Imagine his surprise and delight over such good luck! But then the IRS said it was taxable income. Mr. Cesarini went to court over it, but the court agreed with the IRS. Mr. Cesarini appealed, but the 6th Circuit Court of Appeals agreed too. See the brief for Cesarini v. United States, 428 F. 2d 812 – 1970.

But does this mean the recovered art will be taxed? It depends. If you get something back that was yours, it generally shouldn’t be income. However, there’s an important exception if you claimed a loss deduction.

Under the tax benefit rule, since you claimed a tax benefit, you must take the item back into income when you recover it. But aren’t there special rules about art? Yes and no. Most tax cases about art deal with valuation, either for purposes of charitable contributions or estate tax.

For charitable contributions, you want a high appraisal to support a big deduction. In estate tax matters, you want a low appraisal so you don’t pay too much estate tax. The IRS knows this. For that reason-and given the subjective and specialized nature of expensive art-the IRS has a special Art Advisory Panel.

But that doesn’t mean all art matters are gentlemanly. A good example is discussed in this Forbes’ report about the fight over the value of a Robert Rauschenberg collage. It was owned by Ileana Sonnabend, who died in 2007.

English: Reserved For Ileana Sonnabend

English: Reserved For Ileana Sonnabend (Photo credit: Wikipedia)

The Sonnabend estate tax return said her total worth on death was $876 million. Notably, it valued Rauschenberg’s “Canyon” at zero? Yes, zero. The collage could not legally be sold since it included an endangered species, a stuffed Bald Eagle. Not so fast, said the IRS. The IRS valued it at $65 million and demanded $29 million in tax and an $11.7 million penalty. See Forbe’s columnist Janet Novak’s article on the issue: The IRS Art Advisory Panel Has Its Head In The Clouds.

With the passage of nearly 70 years since World War II, it will be some time before the Germans sort out claims on the treasure trove of art. Before one can think about taxes, one must consider who owns what and the source of the claims. Still, tax collectors have the memory of an elephant.


JDKatz: Attorney's At Law

JDKatz, P.C. is a full-service law firm focused on tax lawbusiness and transactional lawestate planning and elder law. We are dedicated to minimizing your existing liability and risks while providing valuable tax planning to streamline your tax issues in the future. Please call us at 301-913-2948 to schedule an appointment to meet with one of our trusted attorneys, or visit http://www.jdkatz.com.

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