"In recent years, there have been many important changes in substance and in procedure in how appraisals of works of art are treated for tax purposes," Gilbert Edelson, administrative vice president of the Art Dealers Association of America, told audience members at the October 14 and 15 Visual Arts and the Law conference in Chicago.
Among those changes are the specific qualifications for those submitting an appraisal for tax purposes, and there are also increased penalties for appraisals identified by the Internal Revenue Service's Art Advisory Panel as being errant by more than 20%.
APPRAISALS for TAX PURPOSES
In general, the donated object must be a capital asset - "that is, held for at least one year before being given away" - and donated to a nonprofit institution to be used for its exempt purposes. A fund-raising auction "is not one of the exempt purposes of a not-for-profit organization," he noted. If the institution decides to sell the donated item, it may not do so for at least three years. Charitable contributions may not exceed one-third of a taxpayer's adjusted gross income. Since 1985, donors to charitable institutions have been required to include a valid appraisal on their tax returns if, when the gift is an object, it is valued at $5000 or more, or over $10,000 when it is a closely held stock.
Special attention has been given by Congress to appraisers, and Edelson cited both the 2004 American Jobs Creation Act and the 2006 Pension Protection Act as having introduced "new standards for the appraisal of donated work." The Internal Revenue Service has written up guidelines and is awaiting final approval from the Department of the Treasury.
Under the proposed rules, the appraiser must be designated as competent by a recognized professional appraisers' organization or must have passed professional or college-level courses in valuing relevant objects. In addition, the appraiser must be paid to perform appraisals on a regular basis. Neither the donor, the person from whom the donor obtained the item, nor someone employed by the institution receiving the donation may perform the appraisal. The appraiser's fee may not be based on the estimated value of the object.
Valuations found to be grossly incorrect by the 25-member Art Advisory Panel may trigger a range of penalties for the appraiser, either 10% of the tax underpayment due to misstatement, $1000, or 125% of the income received for the appraisal. In addition, the appraiser may be subject to a civil penalty for aiding and abetting an understatement of tax liability and may be prohibited from submitting appraisals for tax purposes for a period of five years. Taxpayers are assessed 30% of the tax underpayment if the appraised value of the object is found by the IRS to be off by 150% or more. This is in addition to the payment of the adjusted tax and interest on that amount.
The contents of a qualified appraisal must include the identity of the artist, if known, and if unknown, to whom the work is attributed (school of or studio of, for instance), the title, media, dimensions, date, if and where signed, provenance, and publication and exhibition record. If the donated artwork is a multiple, the appraisal needs to include the edition number and size of the edition (if a sculpture, the name of the foundry). In addition, the appraisal needs to cite the cost of the work, when and how it was acquired, its condition, and when it was donated, and must supply a good photograph or transparency of the object.
---Maine Antique Digest, December 2010 by Daniel Grant (edited)