Deciding where to exhibit art may have serious tax implications

Publication May 6, 2016

In most instances, when an art dealer purchases art, the dealer will submit a resale certificate to indicate an intent to place the piece back into the marketplace and pass the cost of sales tax to the ultimate buyer. However when dealers have multimillion dollar art collections that mix both private pieces as well as artwork intended for resale, the result can lead to millions of dollars in lost tax revenue.

Recently, the New York Attorney General has reached settlements with dealers who have either commissioned or purchased art for resale and then mingled these same items among their private collections.

Real estate developer and art collector Aby Rosen made a US$7 million settlement for 200 art works commissioned or bought over the last 14 years, including Jean Michel Basquiat’s “Warrior,” Andy Warhol’s “Howdy Doody,” Roy Lichtenstein’s “Sock,” and Cy Twombly’s “Venere Franchetti.” Purchased through one of two business entities, the pieces moved between business and home, intertwined between his personal art collection, design work and real estate developments.

Gagosian Gallery art dealer Victoria Gelfand made a US$210 thousand settlement for 31 pieces purchased between 2005 through 2013. Purchased for resale, unsold items were often exhibited within her home.

Should questions arise about the exhibit of art work intended for resale within a private or public collection, consult your art law lawyer.

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