How do you pay $41m in taxes on a painting which can't be sold?

The value of a painting is how much you can sell it for. But Robert Rauschenberg's "Canyon" is illegal to sell, leaving the Sonnabend estate in a pickle.

When modern art dealer Ileana Sonnabend died in 2007, her family had to sell a heck of a lot of paintings to pay their inheritance tax bill. They eventually valued the total estate at $876m, and had to say goodbye to works by Lichtenstein, Warhol and Twombly to come up with the $471m they owned.

But one of the most important paintings they owned was valued at $0, in a move which has led to the IRS (the Internal Revenue Service, the American tax office) taking them to court for to reclaim a further $41m from them. But this is not tax evasion gone wrong. The painting is quite literally priceless – or perhaps more accurately, valueless.

The work, called Canyon, is by American pop artist Robert Rauschenberg. It is a mixed-medium canvas, featuring "oil, housepaint, pencil, paper, fabric, metal, buttons, nails, cardboard, printed paper, photographs, wood, paint tubes, mirror string, pillow" – and a stuffed bald eagle:

Since trafficking in the bird, a formerly endangered species and national icon, is illegal whether it is dead or alive, the painting cannot be resold. In fact, Sonnabend had to obtain special dispensation to lend the work to museums, and even keep it at all, once federal agents spotted it in 1981.

Now, as any economist knows, there is no such thing as intrinsic value. An item is worth what it can be resold for. It's value certainly isn't what you paid for it, as anyone who bought a full set of Charles and Diana wedding memorabilia will attest to. And neither is it what it would be in a different, hypothetical, situation. If I own an autographed copy of Sticky Fingers​ which will be worth a lot "when (if?) Keith Richards dies", that's all very well, but it's not worth that now.

All of which is to say that if you own a painting which cannot legally be sold, and which can only even be retained through a rarely competent bureaucratic exemption, it is pretty fair to describe it as worth $0. (Although a more accurate valuation would be [sale price in an open market]x[probability of the restrictions being lifted], but if the latter is zero then the whole thing is as well). But the IRS, apparently, don't agree. They claimed to the estate's lawyer that:

There could be a market for the work, for example, a recluse billionaire in China might want to buy it and hide it.

Yesterday, the New York Times threw some light on how they actually reached their valuation:

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."

Reuters' economics blogger Felix Salmon, who harbours part time fascination with the art world, doesn't think too highly of Barron for this:

The assumptions baked in to this are both jaw-dropping and entirely unsurprising at the same time. Barron is the senior curator of 20th-century art at Lacma, which puts her at the pinnacle of the non-profit art world, the place where art is supposedly valued just for its own sake and not because it’s worth lots of money. And yet, faced with a literally priceless work of art, Barron and her fellow panelists “just cringed” at ratifying precisely that concept. If a work has great artistic value, in Barron’s view, it must have great financial value as well. And, conversely, if a work has no financial value, then it cannot have artistic value.

Salmon is right that there is something peculiarly specific to the art world in this error, and that's what he focuses on for the rest of his very good piece. But it's also representative of a more widespread form of economic illiteracy. Take, for example, arguments around the introduction of a wealth tax.

The idea is that since a) inequalities in wealth are far greater than inequalities in income, and b) wealth is a better indicator of "richness" than income (people rarely have temporary spikes in wealth, for instance), then we ought to be collecting a tax on wealth (of, say, half a per cent of total wealth over £1m per year).

This is all good, but the problem comes when people start comparing liquid and illiquid assets. Much – most – of the wealth of the richest Britons is tied up in land and property. Unless Inland Revenue want to start collecting percentages of houses (and it's unclear what they would do if they seized, say, your front porch) then some people are going to have to start selling those homes, liquidating their assents.

When there's a glut of properties on sale, the value falls. If the value falls, the value of what can be taxed correspondingly falls. There is no such thing as the "true" value of someone's wealth which the Revenue can address, and if they do, they end up with cock-ups like the IRS's. Let that be a lesson to them.

A noble, majestic bald eagle, indirectly responsible for a $41m tax bill. Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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There's something missing from our counter-terrorism debate

The policy reckoning that occured after the 2005 terrorist attacks did not happen after the one in 2016. 

“Once the rockets are up, who cares where they come down? That's not my department, says Wernher von Braun.” That satirical lyric about Nazi rocket scientists has come to mind more than few times watching various tech giants give testimony in front of the Home Affairs Select Committee, one of the underreported sub-plots of life at Westminster.

During their ongoing inquiry into hate crime in the United Kingdom, committee chair Yvette Cooper has found a staggering amount of hate speech being circulated freely on the largest and most profitable social media platform. Seperately, an ongoing investigation by the Times has uncovered how advertising revenue from Google and YouTube makes its way straight into the coffers of extremist groups, ranging from Islamist extremists to white supremacists and anti-Semites.

One of the many remarkable aspects of the inquiry has been the von Braunesque reaction by the movers and shakers at these tech companies. Once the ad revenue is handed out, who cares what it pays for? That’s not my department is the overwhelming message of much of the testimony.

The problem gains an added urgency now that the perpetrator of the Westminster attacks has been named as Khalid Masood, a British-born 52-year-old with a string of petty convictions across two decades from 1982 to 2002. He is of the same generation and profile as Thomas Mair, the white supremacist behind the last act of domestic terrorism on British shores, though Mair’s online radicalisation occurred on far-right websites, while Masood instead mimicked the methods of Isis attacks on the continent.  Despite that, both fitted many of the classic profiles of a “lone wolf” attack, although my colleague Amelia explains well why that term is increasingly outmoded.

One thing that some civil servants have observed is that it is relatively easy to get MPs to understand anti-terror measures based around either a form of electronic communication they use themselves – like text messaging or email, for instance – or a physical place which they might have in their own constituencies. But legislation has been sluggish in getting to grips with radicalisation online and slow at cutting off funding sources.

As I’ve written before, though there  are important differences between these two ideologies, the radicalisation journey is similar and tends to have the same staging posts: petty criminality, a drift from the fringes of respectable Internet sub-cultures to extremist websites, and finally violence.  We don’t yet know how closely Masood’s journey follows that pattern – but what is clear is that the policy rethink about British counter-terror after the July bombings in 2005 has yet to have an equivalent echo online. The success of that approach is shown in that these attacks are largely thwarted in the United Kingdom. But what needs to happen is a realisation that what happens when the rockets come down is very much the department of the world’s communication companies. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.