As the old saying goes – nothing is certain but death and taxes.
In a recent decision, a New York Division of Taxation administrative law judge denied a prominent art dealer a refund on state taxes paid on a now rescinded $2.5 million USD sale of a fake Max Ernst. The matter involved a forged painting sold in 2004 that was linked to Wolfgang Beltracchi who after admitting to creating a series of fake paintings was sentenced to six years in prison in 2011. The judge determined that the dealer was ineligible for the $200K plus refund because the request was not timely filed under New York State tax law § 1139(c). The dealer unsuccessfully argued that the statute of limitation based on fraud, which begins from when the cause of action accrued or two years from when the plaintiff discovered the fraud, should apply. Specifically, the judge rejected the argument that the statute of limitations for refunds, which is three years, should have been tolled until the fraud scheme was discovered more than six years after the sale. The judge ruled that the statute of limitation clearly required disallowance of untimely filed refunds (no matter what the reason). The judge further noted that certainty of the refund deadline was a necessity because“[a]nything less than this degree of certainty would make the financial operation of government difficult, if not impossible.” In recent reports, the art dealer has vowed to pursue an appeal of the administrative law decision. For all of you art lovers out there, this decision highlights the risks involved in art connoisseurship . . . when even the experts can be fooled.
According to a recent Newsweek article, art theft is the third highest-grossing criminal enterprise, behind only drugs and guns. A significant contributing factor to the prevalence of art theft is the fact that the art trade is generally unregulated – most countries, including the U.S., do not require transaction records or public listing of art sales.
The FBI reports that criminal income generated by art crime each year is roughly $6-8 billion, which is more than 20% of the estimated $30 billion in annual private art sales reported in a recent ARTnews survey. And, while 50,000-100,000 works of art are stolen each year, only about 10% of stolen art is recovered.
Industry insiders consider the implementation of dealer licensing, codes of conduct and regulation. However, they are skeptical that regulation is achievable or will be effective due in part to the lack of communication throughout the art industry.
Without a system of effective regulation and law enforcement, buying art is not to be taken lightly. According to Chris Marinello, an art recovery specialist, art buyers must “perform due diligence, pay an appraiser, an art authentication expert, a provenance researcher, lawyers and even a scientist.”
A fascinating article on Bloomberg.com recently highlighted the globally based Artist Pension Trust (APT), which is claimed to hold the largest global collection of contemporary art, including 10,000 contributed artworks from 2,000 artists in 75 different countries. APT offers artists a unique blend of artist collective and hedge fund.
Launched ten years ago by high-tech entrepreneur and art collector, Moti Shniberg, APT is a promising fix to what is widely viewed as a broken art market. That is, “[t]hose who create art – even valuable art – often don’t profit from it nearly as much as their collectors or even, on occasion, their own dealers. Shniberg’s solution is a combination of skipping the middleman (artists get to bypass their dealers by selling through APT instead)” and altruistic motives (sale of an artist’s work is shared with the other artists).
The model behind how APT works is quite simple. A board of curators invite select talented artists from around the world to join their regional pool with 249 other artists. These regional pools represent the largest art markets, such as New York, Los Angeles, London, Hong Kong, Shanghai, and the like. APT also has a global pool with a capacity of 628 artists. Over a period of 20 years the artworks in the trust are gradually sold for the benefit of the APT artists. According to APT’s website, the funds from the net proceeds of each artwork sold are distributed to the artists as follows: “72% are distributed to the artists in the trust, with 40% to the individual artist and 32% among the artists in that trust based on the number of artworks they have deposited. The remaining 28% are used to cover the operational costs of the trusts.”
The article goes on to note the success of APT depends on three factors—(1) whether there is a rise in value of the trust’s body of artwork; (2) whether that body of artwork can be sold by the trust at the peak of its value; and (3) whether there is demand such that enough art collectors exist to buy the body of artwork that APT would like to sell.
The current value of APT’s art collection is reported to be around $125 million, however, in view of existing commitments of future donations by trust artists, its value is said to be closer to $500 million.
On July 2, 2014, the Save the Corcoran Coalition, a Washington D.C. non-profit corporation, filed a complaint and petition to intervene in the cy près proceeding of the Trustees of the Corcoran Gallery of Art. The complaint alleges that the Trustees breached their fiduciary duties, mismanaged fundraising efforts, wasted assets, and made misleading representations in support of their request for cy près relief.
The Coalition, which consists of students, alumni, faculty, staff, donors, and members of the Corcoran, filed this lawsuit in response to the Trustees’ petition that was filed on June 25, 2014. The Trustee’s petition seeks a court order to amend the Deed of Trust under which the Corcoran has operated since 1869, and authorize a recently announced deal that would allow other institutions to take over the Corcoran’s property.
According to the New York Times, the Trustees reached a deal which will, if court approved, permit the Corcoran to “cede its collection of more than 17,000 pieces, rich in American art, to the National Gallery” and transfer its building to The George Washington University, “which would use it for classes for students of the Corcoran College of Art + Design.”
In their complaint, the Coalition, which opposes the deal, claims that “the charitable purpose of the trust may yet be practicable, if managed properly,” and argue that the Corcoran’s bad financial situation is attributable to mismanagement of the gallery’s money through “self-dealing, conflicts of interest, hiring unqualified management and profligate spending on consultants whose advice was ultimately ignored.”
Having grown up in Michigan as a young child, I fondly recall a number of visits I made to the Detroit Institute of Arts (DIA) as well as to the Toledo Museum of Art (TMA) with my family. I felt so fortunate to live in relatively close proximity to such two world-class art institutions in the Midwest. Although I did not ultimately pursue a career as an artist or architect (I loved to draw/sketch growing up) and instead pursued a career as an intellectual property attorney (which I love), I still find myself fascinated with beautiful works of art whenever I visit museums such as the DIA and the TMA in the Midwest and the Getty and LACMA here in Los Angeles where I now live.
When I came across yesterday’s article in the New York Times that the DIA’s prized collection could be worth somewhere in the range of $2.7 billion to $4.6 billion, I am not at all surprised given that the DIA has some of the greatest masterpieces by Pieter Bruegel the Elder, Michelangelo, Rembrandt, van Gogh, and many other renowned artists. As you may recall, late last year Christie’s had appraised a small, but significant portion of the DIA’s collection by these great masters in which it was estimated that such works alone would bring in around $454 million to $867 million if sold.
This latest appraisal, commissioned by the city of Detroit and the DIA in advance of an upcoming federal bankruptcy trial in August, noted that “such a price tag would never be attained at sale, for reasons including donor lawsuits that would delay or prevent the sale of many valuable works, weakness in the market for some kinds of paintings, and lower sale prices because of the sheer bulk that would flood into the market at once.” It has been reported that the appraiser, Artvest Partners, a New York based art investment firm, believes that “because of these factors and the notoriety of such a forced sale from a venerable public institution, the bulk of the [DIA’s] collection might raise as little as $850 million.”
Undoubtedly, the estimated figures from this latest appraisal and the appraisal report’s conclusions will be fought over at next month’s federal bankruptcy trial. Creditors had previously accused city officials of underestimating the value of the DIA’s collection so it could be protected. The DIA’s more than 60,000 piece collection is owned by the city and is considered a municipal asset.
As reported in yesterday’s New York Times and other online sources, a Paris tribunal on July 2 held that the Solomon R. Guggenheim Foundation is permitted to display art as it sees fit in the Venetian palazzo, the Palazzo Venier dei Leoni, bequeathed to it along with a vast art collection by the affluent expatriate American art collector and socialite, Peggy Guggenheim.
In a long-running dispute that was the subject of an earlier judgment in 1994, Guggenheim’s heirs sought to revoke Ms. Guggenheim’s donation of her art collection to the Foundation because they claimed the institution disobeyed the conditions of her bequest. Specifically, Guggenheim’s family claimed that the original display had been altered and that the art collector’s burial site was desecrated by the Foundation with the display of new acquisitions close by.
The tribunal ordered Guggenheim’s heirs to pay 30,000 euros (or about $41,000) toward the Foundation’s legal fees, but rejected the Foundation’s demand for in excess of $136,000 from all of Guggenheim’s heirs for engaging in abusive legal procedures through the filing of their lawsuits. It has been reported that Guggenheim’s heirs intend to appeal the tribunal’s decision.
After the tribunal’s decision, the Foundation issued the following statement:
“The Solomon R. Guggenheim Foundation acknowledges the decision handed down today by the Tribunal de Grande Instance de Paris (Paris District Court) in the lawsuit brought by some of the descendants of Peggy Guggenheim. As it did in 1994, the court again rejected as baseless their allegations against the Foundation and required the claimants to contribute toward the expenses the Foundation has incurred in defending itself against this lawsuit.
The Foundation is proud to have faithfully carried out the wishes of Peggy Guggenheim for more than thirty years by preserving her collection intact in the Palazzo Venier dei Leoni, restoring and maintaining the Palazzo as a public museum and contributing to the knowledge of modern and contemporary art in Italy. The Peggy Guggenheim Collection today is the most visited museum of modern art in Italy and in 2013 was the second most visited museum in Venice, exceeded only by the Doge’s Palace.”
According to a recent New York Times article, contemporary art is outpacing Impressionist and modern art at the major auction houses.
Old Masters and 19th-century painters have “fallen out of fashion with the majority of art buyers”, while postwar and contemporary art generated a combined $1.6 billion at Sotheby’s, Christie’s and Phillips’s recent art auctions.
It is not just the buyers’ tastes that are shifting; it is their demographic as well. Sotheby’s reports a “new range of buyers has appeared in the last four years from Asia, Russia and South America.”
Indeed, the market for fine art is changing.
According to this recent report, Andy Warhol’s highly sought after “Six Self Portraits” and Jeff Koons’ shiny and reflective statue of “Popeye” were auctioned off for the first time last Wednesday evening at Sotheby’s in New York.
With a starting bid of $23,000,000, the Warhol work quickly fetched $30,125,000 in three minutes and 15 seconds. Koons’ seven foot tall “Popeye” statue fetched $28,165,000 in a brisk 91 seconds.
At the end of the evening, Sotheby’s brought in about $384,000,000 in sales of priceless art.
The Garage Center for Contemporary Culture, founded in 2008 by Dasha Zhukova and funded by her charitable foundation for the development of contemporary culture, the Iris Foundation, has announced that as of May 1, 2014, the Garage will be known as the Garage Museum of Contemporary Art. Architect Rem Koolhaas has been tasked with redesigning a derelict building in Gorky Park to house the Garage collection. The move to transform the project into a museum will help further define the Garage and aid in the legal aspects of art donation. Through her various projects, Zhukova, a Russian philanthropist, entrepreneur, fashion designer and magazine editor, has worked to bridge the gap between fashion and art. It would be interesting for Zhukova who was recently named one of the Artnet news‘ top 25 women in the art world to make her mark on a contemporary art project here in Philadelphia.
As reported in this recent article, in an alleged scheme that spanned for nearly 20 years involving a number of New York art galleries, a Spanish art dealer and his associates made in excess of $33 million by peddling forged modern art works through galleries to unsuspecting affluent buyers who paid in the millions of dollars for such works. Authorities recently arrested the art dealer and his co-conspirator brother in Spain.
According to the indictment unsealed in federal court last week, the brothers are confronted with conspiracy and money laundering charges. The painter who is believed to have fled to China as the alleged scheme began to come apart is also indicted. The indictment accuses the painter of making false statements to federal agents, conspiracy to commit wire fraud, and wire fraud. The painter is alleged to have received between several hundred and several thousand dollars for the forged paintings sold by the art dealers and galleries for millions of dollars.
Last week’s indictment represents the latest chapter in a case that has shaken up the modern art world involving a number of prominent New York galleries and affluent buyers. It is alleged that the art galleries made in excess of $80 million off of the dozens of forged modern art works.
The alleged forged works that were represented to be paintings by famous artists included Mark Rothko, Jackson Pollock, Willem de Kooning, Robert Motherwell and Clyfford Still, as set forth in the indictment.
The indicted art dealer is said to have played a role in the art work forgeries before they were sold by subjecting the “many fake works to various processes, such as heating them, cooling them, and exposing them to the elements outdoors, in an attempt to make the fake works seem older than they actually were,” according to the indictment.
A key player in the alleged conspiracy is the art dealer’s girlfriend who plead guilty last year to charges of conspiracy, wire fraud, money laundering, and filing false federal income tax returns, and is currently awaiting sentencing in federal court.