I just came across a good, short, and clear article, "Antique Dealers Come Face-to-Face With Ivory Ban" By Kristin Hugo in National Geographic online (July 8, 2016) that explains the difficulties for the antique trade the new ban on sale of endangered species material has caused.
It explains
The new ban restricts interstate sales of ivory items to two narrow categories: antique ivory that’s proven to be more than a century old and items that contain only a little ivory, such as a violin bow with an ivory tip.
and that
increasing stigma against ivory ownership and tighter regulations at the state and federal levels have been encouraging dealers to gradually get out of the business.
it also points out that
It remains legal to sell antique ivory within states, other than in California, New York, New Jersey, or Hawaii, which have passed state bans on the ivory trade. Other states have legislation pending. That means a market still exists for some ivory sellers.
Lastly, the article offers some guidance on what to do with ivory items you are unable to sell:
Ivory owners who want to get rid of legally acquired ivory can donate it to the Fish and Wildlife Service’s national wildlife repository, in Colorado, if they’re willing to pay the shipping costs. Or they can simply keep it in their own private collections, which Lang said is a popular option for antique dealers wanting to remove ivory from their stores.
Owners may also offer to donate their ivory to a museum. Art, culture, and science museums in particular might be interested in legally acquired, historically significant ivory, according to Sheila Hoffman, the chair of the American Alliance of Museums’ ethics subcommittee.
Nov 12, 2016
Sep 29, 2016
Advice on Selecting a Qualified Appraiser
Many thousands of persons hold themselves out to the public as appraisers but few are actually properly trained to do the job. The IRS and knowledgable insurance companies, bank asset managers, and attorneys have been requiring all appraisers they hire to adhere to USPAP as well as Appraisal Foundation standards when selecting appraisers. Members of the general public should as well.
For a good discussion of what it takes to be a qualified appraiser, see this article PERSONAL PROPERTY APPRAISER QUALIFICATION CRITERIA
Although the new standards described in the article above will not go into effect until January 1, 2018, you should be mindful of them now. You can download the Appraisal Foundation brouchure on these new criteria HERE
For a good discussion of what it takes to be a qualified appraiser, see this article PERSONAL PROPERTY APPRAISER QUALIFICATION CRITERIA
Although the new standards described in the article above will not go into effect until January 1, 2018, you should be mindful of them now. You can download the Appraisal Foundation brouchure on these new criteria HERE
Jul 24, 2016
TOP CHINESE AUCTION HOUSES 2016
The Chinese art market is dominated by sales at auction houses within Mainland China, in Hong Kong, or in Taiwan. There are so many auction houses these days that it is hard for the public to know which ones are the larger and more important ones. I have complied the list below, based on data culled from several sources include Artnet, Artprice, Artron, and Blouin. Note that this list OMITS the big three Western auction houses that have sales in China: Christie's (HK & Shanghai), Sotheby's (HK & Beijing), and Bonhams (HK).
Beijing ChengXuan Auctions Co., Ltd.
北京诚轩拍卖有限公司
Beijing
Beijing Council International Auction Co.,
Ltd. 北京匡时国际拍卖有限公司
Beijing
Beijing Huachen Auctions Co., Ltd.
北京华辰拍卖有限公司
Beijing
China Guardian Auctions Co., Ltd.
中国嘉德国际拍卖有限公司
Beijing, Shanghai, Hong Kong, Taipei, Tokyo,
New York, Vancouver
Duo Yun Xuan Auctions Co., Ltd.
朵雲軒拍賣會
Shanghai
Beijing Hanhai Auction Co., Ltd.
北京翰海拍賣
Beijing
Hosane Auction Co. Ltd.
Shanghai
Poly Auction (Hong Kong)
香港保利
Hong Kong
Poly International Auction Co., Ltd.
北京保利
Beijing
Ravenel International Art Group
羅芙奧藝術集團
Taipei, Taiwan; Hong Kong, Beijing, and Shanghai, China
Rong Bao Zhai
榮寶齋
Jinan
Rong Bao Zhai (Shanghai) Auction Co., Ltd.
榮寶齋
Shanghai
Sungari International Auction
中貿聖佳國際拍賣
Beijing
United Asian Auctioneers
Hong Kong
XiLing YinShe Auction Co. Ltd.
西冷印社拍賣
Hangzhou, Beijing
Zhong Cheng Auction Co., Ltd.
中誠國際拍賣
Taipei
Beijing ChengXuan Auctions Co., Ltd.
北京诚轩拍卖有限公司
Beijing
Beijing Council International Auction Co.,
Ltd. 北京匡时国际拍卖有限公司
Beijing
Beijing Huachen Auctions Co., Ltd.
北京华辰拍卖有限公司
Beijing
China Guardian Auctions Co., Ltd.
中国嘉德国际拍卖有限公司
Beijing, Shanghai, Hong Kong, Taipei, Tokyo,
New York, Vancouver
Duo Yun Xuan Auctions Co., Ltd.
朵雲軒拍賣會
Shanghai
Beijing Hanhai Auction Co., Ltd.
北京翰海拍賣
Beijing
Hosane Auction Co. Ltd.
Shanghai
Poly Auction (Hong Kong)
香港保利
Hong Kong
Poly International Auction Co., Ltd.
北京保利
Beijing
Ravenel International Art Group
羅芙奧藝術集團
Taipei, Taiwan; Hong Kong, Beijing, and Shanghai, China
Rong Bao Zhai
榮寶齋
Jinan
Rong Bao Zhai (Shanghai) Auction Co., Ltd.
榮寶齋
Shanghai
Sungari International Auction
中貿聖佳國際拍賣
Beijing
United Asian Auctioneers
Hong Kong
XiLing YinShe Auction Co. Ltd.
西冷印社拍賣
Hangzhou, Beijing
Zhong Cheng Auction Co., Ltd.
中誠國際拍賣
Taipei
Jun 22, 2016
Sales for Fine Japanese Prints Set Record
The June 21 Paris Sale of the famous Portier collection of Japanese prints in Paris at Druot June 21, 2016 netted record prices for superlative prints, indicative of why well preserved and rare prints by famous masters are in high demand among collectors. See a story on this HERE
Kitagawa Utamaro, "Deeply Hidden Love (Fukaku shinobu koi)," from the series “Anthology of Poems: The Love Section” (Kasen koi no bu), pink mica ground Oban tate-e, 24.6 x 36.2 cm. Sold: €745,800
Jun 21, 2016
Japanese Prints: Basic Info for Collectors
The Ronin Gallery in NY has published a very useful basic introduction to evaluating Japanese prints on their website. It explains, and shows with examples why some prints are more valuable than others, pointing out how differences in earlier and later impressions of prints and condition issues (such as fading, backing, trimming, and centerfolds) affect value.
Read the article HERE
Hiroshige, Plum Garden at Kameido. Image: Ronin Gallery.
Good color preservation Faded Impression
Read the article HERE
Hiroshige, Plum Garden at Kameido. Image: Ronin Gallery.
Good color preservation Faded Impression
Jun 8, 2016
FINAL RULING ON ESA AFRICAN IVORY REGULATIONS EFFECTIVE 7/6/2016
The U.S. Fish and Wildlife Service (Service) published a final rule revising the African elephant rule under section 4(d) of the ESA [50 CFR 17.40 (e)] on June 6, 2016. The guidance provided in this document will be effective July 6, 2016, 30 days following publication of the rule in the Federal Register.
African Ivory Ruling Here
Q&A Below from the Appraisers Association of America, for guidance only.
You may need to consult an attorney and definitely need to check your own state's regulations which may be different from federal laws.
Is it legal for me to keep my lawfully acquired elephant ivory?
Yes. This ESA 4(d) rule and other federal wildlife laws and regulations such as CITES, the ESA, and the AfECA do not prohibit possessing or display of ivory, provided it was lawfully acquired. There is no certification requirement or process to register ivory items and you do not need a permit from the Service to possess or display ivory for noncommercial purposes. We recommend that you maintain any records you have that demonstrate the origin and chain of ownership of the items. We also suggest that you provide all documentation to any future gift recipient of your elephant ivory items. Check to make sure that you are also in compliance with local and state laws. Contact your state wildlife agency to check on their requirements.
Will this ESA 4(d) rule impact activities with other types of ivory?
No. This rule regulates only African elephants and African elephant ivory. Asian elephants and parts or products from Asian elephants, including ivory, are regulated separately under the ESA. Ivory from marine species, such as walrus, is also regulated separately under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). Ivory from extinct species, such as mammoths, is not regulated under statutes implemented by the Service.
If I am selling an item made from walrus or another non-African elephant ivory, such as a Native Alaskan handicraft, will I need documentation to prove it's not African elephant ivory?
This rule applies only to African elephants and African elephant ivory. It does not impose any documentation requirements for non-African elephant ivory. However, depending on the species, other regulatory requirements may apply. For example, walrus ivory is regulated under the Marine Mammal Protection Act. It is important for sellers to know the species involved so that they can determine what regulatory requirements apply.
Can I donate or give away ivory?
Yes. This ESA 4(d) rule and other federal wildlife laws and regulations such as CITES, the ESA, and the AfECA do not prohibit donating or giving away your ivory specimen, or receiving an ivory item as a donation or a gift, provided it was lawfully acquired and there is no exchange for other goods or services involved. We recommend that you provide the recipient with any records or documentation you have that demonstrates the origin and chain of ownership of the items. Check to make sure that you are also in compliance with local and state laws.
What is the de minimis exemption?
The final rule provides an exemption from prohibitions on selling or offering for sale in interstate and foreign commerce for certain manufactured items that contain a small (de minimis) amount of ivory that meet the following conditions:
A. If the item is located in the United States, the ivory must have been imported prior to January 18, 1990, or imported under a CITES pre-Convention certificate with no limitation on its commercial use.
B. If the item is located outside of the United States, the ivory must have been removed from the wild prior to February 26, 1976.
C. The ivory is a fixed or integral component or components of a larger manufactured item and is not the primary source of the value of the item, that is, the ivory does not account for more than 50 percent of the value of the item.
D. The ivory is not raw.
E. The manufactured item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 percent of the item by volume.
F. The total weight of the ivory component or components is less than 200 grams.
G. The item must have been manufactured before the effective date of the final rule.
What types of items are likely to qualify for the de minimis exception?
When we proposed the 200-gram limit we had a particular suite of items in mind. The following types of items may qualify for the de minimis exception: many musical instruments (including many keyboard instruments, with ivory keys, most stringed instruments and bows with ivory parts or decorations, and many bagpipes, bassoons and other wind instruments with ivory trim); most knives and guns with ivory grips; and certain household and decorative items (including teapots with ivory insulators, measuring tools with ivory parts or trim, baskets with ivory trim, walking sticks and canes with ivory decorations, and many furniture pieces with ivory inlay, etc.). However, to qualify for the de minimis exception, all of the above criteria must be met (either A or B and C- G).
What types of items are not likely to qualify for the de minimis exception?
Examples of items that we do not expect would qualify for the de minimis exception include chess sets with ivory chess pieces (both because we would not consider the pieces to be fixed or integral components of a larger manufactured item and because the ivory would likely be the primary source of value of the chess set), an ivory carving on a wooden base (both because it would likely be
primarily made of ivory and the ivory would likely be the primary source of its value), and ivory earrings or a pendant with metal fittings (again both because they would likely be primarily made of ivory and the ivory would likely be the primary source of its value).
How do I demonstrate that my item meets the criteria to qualify for the de minimis exception? To qualify for the de minimis exception, an item must meet the criteria provided above. We consider an item to be made wholly or primarily of ivory if the ivory component or components account for more than 50 percent of the item by volume. Likewise, if more than 50 percent of the value of an item is attributed to the ivory component or components we consider the ivory to be the primary source of the value of that item. Value can be ascertained by comparing a similar item that does not contain ivory to one that does (for example, comparing the price of a basket with ivory trim/decoration to the price of a similar basket without ivory components). Though not required, a qualified appraisal or another method of documenting the value of the item and the relative value of the ivory component, including, information in catalogs, price lists, and other similar materials, can also be used. We will not require ivory components to be removed from an item to be weighed.
What is foreign commerce?
Foreign commerce does not include import or export activities. Foreign commerce is defined in section 3 of the Endangered Species Act and applies to individuals or entities subject to U.S. jurisdiction. The term “foreign commerce” includes, among other things, any transaction—
A. between persons within one foreign country;
B. between persons in two or more foreign countries;
C. between a person within the United States and a person in a foreign country; or
D. between persons within the United States, where the wildlife in question is moving in any country or countries outside the United States.
What is meant by the ESA antiques exemption?
Under the ESA, an antique is an item that meets all of the following criteria*:
A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species.
C. It has not been repaired or modified with an ESA-listed species after December 27, 1973.
D. It is being or was brought in to the United States through a port designated for the import of endangered species antiques.
*Under Director’s Order 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.
African Ivory Ruling Here
Q&A Below from the Appraisers Association of America, for guidance only.
You may need to consult an attorney and definitely need to check your own state's regulations which may be different from federal laws.
Is it legal for me to keep my lawfully acquired elephant ivory?
Yes. This ESA 4(d) rule and other federal wildlife laws and regulations such as CITES, the ESA, and the AfECA do not prohibit possessing or display of ivory, provided it was lawfully acquired. There is no certification requirement or process to register ivory items and you do not need a permit from the Service to possess or display ivory for noncommercial purposes. We recommend that you maintain any records you have that demonstrate the origin and chain of ownership of the items. We also suggest that you provide all documentation to any future gift recipient of your elephant ivory items. Check to make sure that you are also in compliance with local and state laws. Contact your state wildlife agency to check on their requirements.
Will this ESA 4(d) rule impact activities with other types of ivory?
No. This rule regulates only African elephants and African elephant ivory. Asian elephants and parts or products from Asian elephants, including ivory, are regulated separately under the ESA. Ivory from marine species, such as walrus, is also regulated separately under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). Ivory from extinct species, such as mammoths, is not regulated under statutes implemented by the Service.
If I am selling an item made from walrus or another non-African elephant ivory, such as a Native Alaskan handicraft, will I need documentation to prove it's not African elephant ivory?
This rule applies only to African elephants and African elephant ivory. It does not impose any documentation requirements for non-African elephant ivory. However, depending on the species, other regulatory requirements may apply. For example, walrus ivory is regulated under the Marine Mammal Protection Act. It is important for sellers to know the species involved so that they can determine what regulatory requirements apply.
Can I donate or give away ivory?
Yes. This ESA 4(d) rule and other federal wildlife laws and regulations such as CITES, the ESA, and the AfECA do not prohibit donating or giving away your ivory specimen, or receiving an ivory item as a donation or a gift, provided it was lawfully acquired and there is no exchange for other goods or services involved. We recommend that you provide the recipient with any records or documentation you have that demonstrates the origin and chain of ownership of the items. Check to make sure that you are also in compliance with local and state laws.
What is the de minimis exemption?
The final rule provides an exemption from prohibitions on selling or offering for sale in interstate and foreign commerce for certain manufactured items that contain a small (de minimis) amount of ivory that meet the following conditions:
A. If the item is located in the United States, the ivory must have been imported prior to January 18, 1990, or imported under a CITES pre-Convention certificate with no limitation on its commercial use.
B. If the item is located outside of the United States, the ivory must have been removed from the wild prior to February 26, 1976.
C. The ivory is a fixed or integral component or components of a larger manufactured item and is not the primary source of the value of the item, that is, the ivory does not account for more than 50 percent of the value of the item.
D. The ivory is not raw.
E. The manufactured item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 percent of the item by volume.
F. The total weight of the ivory component or components is less than 200 grams.
G. The item must have been manufactured before the effective date of the final rule.
What types of items are likely to qualify for the de minimis exception?
When we proposed the 200-gram limit we had a particular suite of items in mind. The following types of items may qualify for the de minimis exception: many musical instruments (including many keyboard instruments, with ivory keys, most stringed instruments and bows with ivory parts or decorations, and many bagpipes, bassoons and other wind instruments with ivory trim); most knives and guns with ivory grips; and certain household and decorative items (including teapots with ivory insulators, measuring tools with ivory parts or trim, baskets with ivory trim, walking sticks and canes with ivory decorations, and many furniture pieces with ivory inlay, etc.). However, to qualify for the de minimis exception, all of the above criteria must be met (either A or B and C- G).
What types of items are not likely to qualify for the de minimis exception?
Examples of items that we do not expect would qualify for the de minimis exception include chess sets with ivory chess pieces (both because we would not consider the pieces to be fixed or integral components of a larger manufactured item and because the ivory would likely be the primary source of value of the chess set), an ivory carving on a wooden base (both because it would likely be
primarily made of ivory and the ivory would likely be the primary source of its value), and ivory earrings or a pendant with metal fittings (again both because they would likely be primarily made of ivory and the ivory would likely be the primary source of its value).
How do I demonstrate that my item meets the criteria to qualify for the de minimis exception? To qualify for the de minimis exception, an item must meet the criteria provided above. We consider an item to be made wholly or primarily of ivory if the ivory component or components account for more than 50 percent of the item by volume. Likewise, if more than 50 percent of the value of an item is attributed to the ivory component or components we consider the ivory to be the primary source of the value of that item. Value can be ascertained by comparing a similar item that does not contain ivory to one that does (for example, comparing the price of a basket with ivory trim/decoration to the price of a similar basket without ivory components). Though not required, a qualified appraisal or another method of documenting the value of the item and the relative value of the ivory component, including, information in catalogs, price lists, and other similar materials, can also be used. We will not require ivory components to be removed from an item to be weighed.
What is foreign commerce?
Foreign commerce does not include import or export activities. Foreign commerce is defined in section 3 of the Endangered Species Act and applies to individuals or entities subject to U.S. jurisdiction. The term “foreign commerce” includes, among other things, any transaction—
A. between persons within one foreign country;
B. between persons in two or more foreign countries;
C. between a person within the United States and a person in a foreign country; or
D. between persons within the United States, where the wildlife in question is moving in any country or countries outside the United States.
What is meant by the ESA antiques exemption?
Under the ESA, an antique is an item that meets all of the following criteria*:
A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species.
C. It has not been repaired or modified with an ESA-listed species after December 27, 1973.
D. It is being or was brought in to the United States through a port designated for the import of endangered species antiques.
*Under Director’s Order 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.
Apr 10, 2016
Q & A with Lark Mason on What to Do with Ivory You Want to Sell or Donate
1. If a client living in NY State has antique ivory (over 100 years old, appraised as 15th century by Sotheby's 35 years ago and then worth $50K) and inherited many years ago from an aunt, can they legally sell it within or outside NY State?
-If it is a solid ivory object, no. To sell outside NY, they have to get a permit, which will not be forthcoming. It is not as clear regarding dual residency. The NY law is potentially in conflict with Federal law, but until a lawsuit is made, it is a problem. If the object contains 20% or less of ivory and is over 100 years old, it can be sold with a permit in NY.
2. If a client in South Carolina has a late 19th-early 20th century Japanese (Meiji period-datable by style), ivory carving, can that be legally sold at auction in the US?
- Yes, provided proof can be shown that:
A. it has been in the US prior to 1982, via an old appraisal, old dated photo, customs import document, or bill of sale. An owner's statement is not enough.
B. it is in a state that allows the sale of antiques containing ivory.
C. it is accompanied by a statement from an expert - who is not benefiting financially - that supports the age and the material identity showing it is African elephant ivory and not Asian elephant ivory.
3. A client has a large group of mostly 20th century ivory carvings - can these be sold somewhere?
-This depends. If the owners can prove they owned it prior to 1982, can have a statement from an expert, and the object is being is sold in a state allowing the sale, then yes.
Keep in mind, final rules will be published soon and we expect these will eliminate the African elephant ivory exception and make all under 100 year old items saleable only in the state where located except those which are composed of 20% or less of ivory. These will still have to have a statement from an expert and proof of purchase/ownership prior to 1982.
The change will also create a situation where an owner in NY or NJ or other states with prohibitions will be unable to obtain permission to sell in the state and unable to take the item out of that state (violates interstate commerce prohibition) and thus will be unsaleable anywhere.
4. Do you have any suggestions for what can people do with the mounds of ivory objects that are accumulating, unable to be sold, stored away in closets and cabinets?
-Right now, the main issue is that of the 1982 acquisition date. If the owner can satisfy that requirement, then it can be sold into interstate commerce, if the state where the owners live allows sale of ivory. If they cannot, they can still sell these, but ONLY in the state where located (provided the law of the state allows) and ONLY to a resident of that state.
For those owners whose objects can be proven to have been acquired before 1982, even if under 100 years old, these can be sold provided the 1982 date and the independent statement is made proving the object is African and not Asian. As to how to tell the difference, the Administration created this rule knowing that a DNA test would make 99.9% impossible to test either due to small size or cost. However, it is possible to use records of commercial activity to prove where African vs. Asian ivory was manufactured into objects.
However, once the final rule eliminates the distinction between African and Asian ivory, nothing under 100 years old that contains more than 20% ivory will be able to be sold across state lines. Nothing. And those items that are in states with prohibitions, such as NY, will have NO value but will be valued by the IRS just as with the "Eagle" case.
The "Eagle" case refers to a sculpture titled "Canyon," which incorporates a stuffed bald eagle, by artist Robert Rauschenberg that children of the owner inherited when she died in 2007. Because the work includes a bird under federal protection, the heirs would be committing a felony if they sold it. So their appraisers valued the work at zero dollars. But the IRS took a different view. They appraised it at $65 million and demanded the owners pay $29.2 million in taxes. So the heirs had a choice: they could either (a) keep it and come up with $29 million, (b) sell it and go to jail for unlawful sale of endangered species material, (c) refuse to pay the tax and go to jail for that, or (d) accept the IRS valuation and pay the $29 million, then donate the sculpture to charity and take a relatively small charitable deduction every year. Ultimately, the IRS agreed that if “Canyon” were donated to a museum, which it eventually was (to the Museum of Modern Art, New York), no estate tax on it would be levied. Information on the case is here, NY Times article 7/22/2012:
Or here, Wall Street Journal article, 12/2/2012:
Another article, in the online journal, wealthmanagement posits this question: "A recent settlement between the taxpayer and the IRS leaves unresolved the obvious legal issue: Can the government prohibit by statute the existence of a marketplace and, nonetheless, assert the imposition of its estate tax based on its “fair market value” standard of a willing buyer and willing seller?"
5. If a person is unable to sell ivory because he lives in NY or another state that prohibits sales, can they donate it to a museum and take a tax deduction for the donation?
-They can donate the ivory to an institution but states prohibiting the sale of such material will not allow for them to take a deduction for the donation given to an institution in their state. The same is generally true for donating to an institution out of state; however, it all depends on the state where the museum is located. From a Federal standpoint, it is possible to get a charitable donation but state regulations are different. This is very complicated and it is best to consult an attorney familiar with the Endangered Species Regulations.
-posted with thanks to Lark Mason for his clear and insightful responses to my questions.
-If it is a solid ivory object, no. To sell outside NY, they have to get a permit, which will not be forthcoming. It is not as clear regarding dual residency. The NY law is potentially in conflict with Federal law, but until a lawsuit is made, it is a problem. If the object contains 20% or less of ivory and is over 100 years old, it can be sold with a permit in NY.
2. If a client in South Carolina has a late 19th-early 20th century Japanese (Meiji period-datable by style), ivory carving, can that be legally sold at auction in the US?
- Yes, provided proof can be shown that:
A. it has been in the US prior to 1982, via an old appraisal, old dated photo, customs import document, or bill of sale. An owner's statement is not enough.
B. it is in a state that allows the sale of antiques containing ivory.
C. it is accompanied by a statement from an expert - who is not benefiting financially - that supports the age and the material identity showing it is African elephant ivory and not Asian elephant ivory.
3. A client has a large group of mostly 20th century ivory carvings - can these be sold somewhere?
-This depends. If the owners can prove they owned it prior to 1982, can have a statement from an expert, and the object is being is sold in a state allowing the sale, then yes.
Keep in mind, final rules will be published soon and we expect these will eliminate the African elephant ivory exception and make all under 100 year old items saleable only in the state where located except those which are composed of 20% or less of ivory. These will still have to have a statement from an expert and proof of purchase/ownership prior to 1982.
The change will also create a situation where an owner in NY or NJ or other states with prohibitions will be unable to obtain permission to sell in the state and unable to take the item out of that state (violates interstate commerce prohibition) and thus will be unsaleable anywhere.
4. Do you have any suggestions for what can people do with the mounds of ivory objects that are accumulating, unable to be sold, stored away in closets and cabinets?
-Right now, the main issue is that of the 1982 acquisition date. If the owner can satisfy that requirement, then it can be sold into interstate commerce, if the state where the owners live allows sale of ivory. If they cannot, they can still sell these, but ONLY in the state where located (provided the law of the state allows) and ONLY to a resident of that state.
For those owners whose objects can be proven to have been acquired before 1982, even if under 100 years old, these can be sold provided the 1982 date and the independent statement is made proving the object is African and not Asian. As to how to tell the difference, the Administration created this rule knowing that a DNA test would make 99.9% impossible to test either due to small size or cost. However, it is possible to use records of commercial activity to prove where African vs. Asian ivory was manufactured into objects.
However, once the final rule eliminates the distinction between African and Asian ivory, nothing under 100 years old that contains more than 20% ivory will be able to be sold across state lines. Nothing. And those items that are in states with prohibitions, such as NY, will have NO value but will be valued by the IRS just as with the "Eagle" case.
The "Eagle" case refers to a sculpture titled "Canyon," which incorporates a stuffed bald eagle, by artist Robert Rauschenberg that children of the owner inherited when she died in 2007. Because the work includes a bird under federal protection, the heirs would be committing a felony if they sold it. So their appraisers valued the work at zero dollars. But the IRS took a different view. They appraised it at $65 million and demanded the owners pay $29.2 million in taxes. So the heirs had a choice: they could either (a) keep it and come up with $29 million, (b) sell it and go to jail for unlawful sale of endangered species material, (c) refuse to pay the tax and go to jail for that, or (d) accept the IRS valuation and pay the $29 million, then donate the sculpture to charity and take a relatively small charitable deduction every year. Ultimately, the IRS agreed that if “Canyon” were donated to a museum, which it eventually was (to the Museum of Modern Art, New York), no estate tax on it would be levied. Information on the case is here, NY Times article 7/22/2012:
Or here, Wall Street Journal article, 12/2/2012:
Another article, in the online journal, wealthmanagement posits this question: "A recent settlement between the taxpayer and the IRS leaves unresolved the obvious legal issue: Can the government prohibit by statute the existence of a marketplace and, nonetheless, assert the imposition of its estate tax based on its “fair market value” standard of a willing buyer and willing seller?"
5. If a person is unable to sell ivory because he lives in NY or another state that prohibits sales, can they donate it to a museum and take a tax deduction for the donation?
-They can donate the ivory to an institution but states prohibiting the sale of such material will not allow for them to take a deduction for the donation given to an institution in their state. The same is generally true for donating to an institution out of state; however, it all depends on the state where the museum is located. From a Federal standpoint, it is possible to get a charitable donation but state regulations are different. This is very complicated and it is best to consult an attorney familiar with the Endangered Species Regulations.
Apr 9, 2016
Why Provenance Matters
I am often asked to appraise art people have bought in the past 10-20 years. These items include objects acquired impulsively during casual trips to Asia, from estate sales, or even from thrift stores, all for low prices, or occasionally purchased from non-specialist dealers or those catering to decorators. Many people think they are getting good buys. Most will be disappointed with my conclusions. It is always imperative when building a serious collection to study the type of art you are interested in yourself, consider provenance (history of past ownership) when purchasing objects, and buy from reputable dealers or auction houses.
A recent high-priced sale of a British collection of Chinese antiquities assembled in the 1950s and '60s shows why this matters.
Moon Flask, 15th century
A recent high-priced sale of a British collection of Chinese antiquities assembled in the 1950s and '60s shows why this matters.
