Tax Treatment of Charitably Donated Artwork

Please refer to IRC 170 as well as Publication 526, Charitable Contributions (PDF), Publication 561, Determining the Value of Donated Property (PDF), and Publication 1771, Charitable Contributions Substantiation and Disclosure Requirements (PDF) for detailed information on charitable contributions. This is what I've learned about issues involving charitable contributions of artwork that tax examiners focus on:

1. The charitable contribution deduction for artwork by Art Galleries, Dealers or the Artist who created the artwork is generally limited to the smaller of fair market value on the date of contribution or its adjusted cost basis taking into consideration cost of goods sold to prevent a double deduction.

2. A charitable contribution deduction is generally based upon the fair market value of the property at the time of the contribution. If a sale of donated property would have generated ordinary income or a short term capital gain, the amount otherwise deductible is reduced by the amount of ordinary income or short term capital gain that would have been recognized.

3. As stated in IRC § 1.170A-4(b)(1): “The term ‘ordinary income property’ means property any portion of the gain on which would not have been long term capital gain if the property had been sold by the donor at its fair market value at the time of its contribution to the charitable organization. Such term includes, for example, property held by the donor primarily for sale to customers in the ordinary course of his trade or business, a work of art created by the donor *** ”. IRC § 1221(a)(3)(A) excludes from treatment as a capital asset property in the possession of the person who created it. In other words art created by an artist and sold by the artist is treated as ordinary income.

4. Artwork donated to a charitable organization by an Art Gallery owner or a Dealer in artwork creates a consideration as to whether the artwork being donated is actually held as an investment or is inventory of the owner. The difference being that a charitable contribution deduction for the long-term capital gain property is generally its fair market value, while the deduction for a contribution of inventory is limited to the lower of cost or fair market value.

5. The deduction for artwork that was gifted by the artist who created it to the investor is generally limited to the smaller of the gift basis or the fair market value on the date of the charitable contribution.

6. Appraisals and Valuations

  • All taxpayer cases selected for audit that contain artwork with a claimed value of $50,000 or more per item must be referred to the IRS' Art Appraisal Services for review by the Commissioner’s Art Advisory Panel. IRM 4.48.2 provides this mandate and the procedures and information needed to make the referral can be found in IRS Rev. Proc. 96-15. Generally the best course of action is to request a review of art valuations for income, estate, and gift returns and subsequently obtain a Statement of Value from the IRS prior to filing the return. Even if the value is under $50,000, the Art Appraisal Services will assist the examiner upon request.
  • A written acknowledgment from the person making the donation is required for donations of $250 or more. For claimed charitable contributions over $500, IRS Form 8283 must be attached to the return and the taxpayer must maintain certain records.
  • For a charitable donation of property in excess of $5,000 the donor has an additional requirement of obtaining a “qualified appraisal”. IRS Form 8283 requires that the appraisal for donated art valued at $20,000 or more must be attached to the return. For property valued at more than $5,000, an appraisal summary must be attached to the return. Appraisals in the entirety for art valued in excess of $500,000 must be attached to the return. The specifics of “qualified appraisal” requirements as well as “appraisal summary” and other related requirements can be found in IRS Notice 2006-96 and 2006-45 IRB 902.
  • A charitable donee is required to file IRS Form 8282 if it sells, exchanges, or otherwise disposes of (with or without consideration) charitable deduction property (or any portion) within 3 years after the date the original donee received the property. The form is filed with the IRS and provided to the donor of the property. A third party contact should be considered to determine if the form 8282 was required and not provided.
  • In order for a taxpayer to claim a deduction for the full fair market value of tangible property donated to charity the property must be used by the charitable organization in a way that is related to its charitable purpose. For example art is generally treated as 'use property' for an art museum, and perhaps a school, but probably not necessarily for a rescue organization.
  • It is possible to claim a deduction for a donation of a fractional interest in art, but immediately before the donation the property must be wholly owned by the donor or shared by the donor and the charity. Special valuation rules apply to subsequent fractional gifts. The deduction may be recaptured if the gift is not completed within the earlier of 10 years after the initial fractional gift or the date of the donor’s death.
  • Section 6695A imposes penalties on appraisers in certain circumstances. Section 6662 provides accuracy related penalties on the donor.

7. Examiners consider whether corporate officers are unreasonably compensation for the duties performed when large artwork transactions are reported by corporations.

8. Examiners investigate as to whether travel is not personal in nature as travel is usually a significant item in the art and art gallery industry. Gallery owners and artists alike tend to travel to buy, sell, and track art. Only the owner’s travel expenses are deductible, NOT the expenses of family members. Trips to vacation locations such as Hawaii, California, Florida, or Colorado have the potential to be personal in nature, and are usually disallowed.

John R. Dundon, EA [720-234-1177, John@JohnRDundon.com]. John is a lifelong student of the US Tax Code; enrolled with the United States Treasury Department to practice before the IRS (Enrolled Agent # 00085353); under contract with the IRS as a Certified Individual Taxpayer Identification Number (ITIN) Acceptance Agent; regulated under USC 31 Section 330 & USC 26 Section 7525a.3.A; governed under US Treasury Cir. 230.

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Posted in Artists, Asset Classification, Basis, Capital Gain, Charitable Contribution, Cost Basis, Estate Tax, Tax Abuse, Tax Guidance & Preparation

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