The George Lindemann Journal by George Lindemann

By ERIC FELTEN

Oh, the perils of found-object art. Over the course of some 20 years, art dealer and collector Ileana Sonnabend negotiated with federal regulators over a prized possession: "Canyon," a work by artist Robert Rauschenberg that combines a painting, a rope-trundled pillow and a stuffed bird. The problem was the bird—a young bald eagle of obscure origin. And now, five years after Ms. Sonnabend died, the problem continues to be the bird. Under federal statutes that prohibit any traffic in bald eagles or their remains, the artwork cannot legally be sold to anyone. And yet the Internal Revenue Service is demanding that Ms. Sonnabend's heirs pay $40 million in taxes on "Canyon." It's the sort of case where you wonder if the IRS agents are named Willem and Franz.

The mantle of art provides little mediation or mitigation when it comes to endangered species. When Lawrence M. Small was made secretary of the Smithsonian Institution a little more than a decade ago, he let some magazines photograph his collection of Amazonian tribal art, much of which was made of feathers of protected rain-forest birds. The articles and photos were perused with keen interest at the U.S. Fish and Wildlife Service, which soon began an investigation. That he considered the items art made no difference—Mr. Small eventually pleaded guilty to federal misdemeanor violations of the Migratory Bird Treaty Act.

Does it help if the artwork is famous? Perhaps, as art lawyer Ronald Spencer notes, it is "bad public relations to destroy works of art," and that can temper the urge to seize. Still, counting on enforcement agencies to be reasonable is a dicey strategy. What is deemed all right under one administration might be discovered to be not all right at all once different officials are in place. The stuffed bird adorning "Canyon" first caught the attention of Fish and Wildlife Service agents in 1981, when the artwork came back through U.S. Customs after a European tour. The Interior Department seems to have been rather accommodating at the time, giving Ms. Sonnabend a permit to hang on to the piece.

But it was a different story in 1998 when she tried to lend "Canyon" to an international retrospective of Mr. Rauschenberg's work. The Sonnabend Gallery "encountered resistance from a new administrator at the Department of the Interior," as ARTnews put it. Federal officials notified the gallery it would have to "relinquish the carcass to the U.S. Fish and Wildlife Service" or donate the artwork to a nonprofit museum—unless "the carcass was taken from the wild prior to 1940" (when the Bald Eagle Protection Act became law).

But how to prove that? This is when the gallery again enjoyed the benefit of regulatory discretion. Mr. Rauschenberg was allowed to simply swear before a notary-public that the eagle was old enough to be legal. He told a quirky story about how the bird had come into his possession. It seems that an artist friend living in an apartment above Carnegie Hall rescued the dingus from the trash in 1959. The eagle, the story went, had belonged to an aged tenant who in his youth "was a member of Teddy Roosevelt's Rough Riders." According to Mr. Rauschenberg's notarized statement, "this Rough Rider acquired, from the wild, a bald eagle which he had taxidermed prior to 1940." When the old cowboy had died, his family tossed the unwanted bird in the garbage. Though the artist was recounting a third-hand tale of an unknown, unnamed cavalryman he had never met, Mr. Rauschenberg's account was accepted as appropriate documentation. Who said the feds can't be reasonable?

Not everyone gets such benefit of the doubt. Just imagine if Gibson Guitar Corp.—locked in a dispute with the Fish and Wildlife Service over the legality of foreign wood sourced for its instruments—had ever tried to offer proof of provenance as flimsy as the artist's notarized statement. But then again, in its dispute Gibson chose not to make nice. The company has been challenging Fish and Wildlife rulings in court. Which might help explain why, a year ago, heavily armed and body-armored agents descended on the company's Nashville factory to seize guitars and pallets of wood.

The Sonnabend heirs would ultimately find out how unreasonable enforcement agents can be. When the IRS first came looking for some payment on the unsalable "Canyon," the tax agency told an attorney working for the estate, Ralph E. Lerner, that the artwork was worth $15 million. But the lawyer refused to agree to that number, insisting that, because there is no legal market for the painting, it has no dollar value. Then, in what Mr. Lerner described to Forbes as the "most shocking part" of the whole fiasco, all of a sudden the IRS issued an official Notice of Deficiency declaring the Rauschenberg to be worth $65 million. Which would suggest that the market value of going along to get along is somewhere around $50 million.

The IRS valuation isn't necessarily crazy, even if its justification—the idea that an imagined black-market value should be binding on people not engaged in black-market transactions—is. But thanks to federal law, that value is entirely hypothetical.

How arbitrary is it to take a good off the market and then demand taxes be paid on an imaginary, indeed illegal, market price? The circumstances may be rare and peculiar, but the capriciousness of officials appears to be all too common.

A version of this article appeared July 26, 2012, on page D10 in the U.S. edition of The Wall Street Journal, with the headline: Bald Eagle Is a White Elephant Thanks to Uncle Sam.

What is the fair market value of an object that cannot be sold?

The question may sound like a Zen koan, but it is one that lawyers for the heirs of the New York art dealer Ileana Sonnabend and the Internal Revenue Service are set to debate when they meet in Washington next month.

The object under discussion is “Canyon,” a masterwork of 20th-century art created by Robert Rauschenberg that Mrs. Sonnabend’s children inherited when she died in 2007.

Because the work, a sculptural combine, includes a stuffed bald eagle, a bird under federal protection, the heirs would be committing a felony if they ever tried to sell it. So their appraisers have valued the work at zero.

 But the Internal Revenue Service takes a different view. It has appraised “Canyon” at $65 million and is demanding that the owners pay $29.2 million in taxes.

“It’s hard for me to see how this could be valued this way because it’s illegal to sell it,” said Patti S. Spencer, a lawyer who specializes in trusts and estates but has no role in the case.

The family is now challenging the judgment in tax court and its lawyers are negotiating with the I.R.S. in the hope of finding a resolution.

Heirs to important art collections are often subject to large tax bills. In this case, the beneficiaries, Nina Sundell and Antonio Homem, have paid $471 million in federal and state estate taxes related to Mrs. Sonnabend’s roughly $1 billion art collection, which included works by Modern masters from Jasper Johns to Andy Warhol. The children have already sold off a large part of it, approximately $600 million worth, to pay the taxes they owed, according to their lawyer, Ralph E. Lerner.

But they drew the line at “Canyon,” a landmark of postwar Modernism made in 1959 that three appraisers they hired, including the auction house Christie’s, had valued at zero. Should they lose their fight, the heirs, who were unavailable for comment, will owe the taxes plus $11.7 million in penalties.

Inheritances are generally taxed at graduated rates depending on their value. In this case, the $29.2 million assessment for “Canyon” was based on a special penalty rate because the I.R.S. contends the heirs inaccurately stated its value.

While art lovers may appreciate the I.R.S.’s aesthetic sensibilities, some estate planners, tax lawyers and collectors are alarmed at the agency’s position, arguing that the case could upend the standard practice of valuing assets according to their sale in a normal market. I.R.S. guidelines say that in figuring an item’s fair market value, taxpayers should “include any restrictions, understandings, or covenants limiting the use or disposition of the property.”

In this instance, 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. Indeed, the only reason Mrs. Sonnabend was able to hold onto “Canyon,” Mr. Lerner said, was due to an informal nod from the United States Fish and Wildlife Service in 1981.

Even then, the government revisited the issue in 1998. Rauschenberg himself had to send a notarized statement attesting that the eagle had been killed and stuffed by one of Teddy Roosevelt’s Rough Riders long before the 1940 law went into effect. Mrs. Sonnabend was then able to retain ownership as long as the work continued to be exhibited at a public museum. The piece is on a long-term loan to the Metropolitan Museum of Art in New York, which Mr. Lerner said insures it, but the policy details are confidential.

Mr. Lerner said that the I.R.S.’s handling of the work has been confusing. Last fall, the agency sent the family an unsigned draft report that it was valuing “Canyon” at $15 million. After Mr. Lerner replied that the children were refusing to pay, the I.R.S. then sent a formal Notice of Deficiency in October saying it had increased the valuation to $65 million.

That figure came from the agency’s Art Advisory Panel, which is made up of experts and dealers and meets a few times a year to advise the I.R.S.’s Art Appraisal Services unit. One of its members is Stephanie Barron, the senior curator of 20th-century art at the Los Angeles County Museum of Art, where “Canyon” was exhibited for two years. She said that the group evaluated “Canyon” solely on its artistic value, without reference to any accompanying restrictions or laws.

“The ruling about the eagle is not something the Art Advisory Panel considered,” Ms. Barron said, adding that the work’s value is defined by its artistic worth. “It’s a stunning work of art and we all just cringed at the idea of saying that this had zero value. It just didn’t make any sense.”

Rauschenberg’s combines, which inventively slapped together everyday objects he found on the street, helped propel American art in a new direction.

Though the I.R.S. usually accepts the advisory panel’s recommendations, it is not required to; last year it did not follow the group’s opinion in 7 percent of the cases, according to panel’s annual 2011 report.

So how did the panel arrive at the $65 million figure? Ms. Barron said, “When you come up with a valuation you look at comparable works and what they have sold for at public or private sales.”

The I.R.S. declined to comment.

Mr. Lerner told Forbes magazine, which reported the dispute in February, that Joseph Bothwell, a former director of the agency’s Art Appraisal Services unit, had told him “there could be a market for the work, for example, a recluse billionaire in China might want to buy it and hide it.” Mr. Bothwell has since retired from the I.R.S. Ms. Barron said she did not consider any hypothetical black-market buyer.

Still, the notion that the I.R.S. might use the black market in this way to determine a fair market value has surprised some tax experts. James Joseph, a tax lawyer with Arnold & Porter in Washington, noted that the I.R.S. has taxed illegal contraband at its market value, but added: “I don’t know of any instance where the I.R.S. has assumed taxpayers will engage in an illegal activity in order to value their assets at a higher amount. Al Capone went to jail for not paying income taxes on his illegal income, but this is very different than that.”

At the moment, tax experts note that the I.R.S.’s stance puts the heirs in a bind: If they don’t pay, they would be guilty of violating federal tax laws, but if they try to sell “Canyon” to zero-out their bill, they could go to jail for violating eagle protection laws.

Mr. Lerner said that since the children assert the Rauschenberg has no dollar value for estate purposes, they could not claim a charitable deduction by donating “Canyon” to a museum. If the I.R.S. were to prevail in its $65 million valuation, he said the heirs would still have to pay the $40.9 million in taxes and penalties regardless of a donation.

Then, given their income and the limits on deductions, he said, they would be able to deduct only a small part of the work’s value each year. Mr. Lerner estimated that it would take about 75 years for them to absorb the deduction.

“So my clients would have to live to 140 or so,” he said.