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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Emmanuel Macron offers Theresa May no comfort on Brexit

The French presidential candidate warned that he would not accept "any caveat or any waver" at a press briefing in London.

Emmanuel Macron, the new wunderkind of French politics, has brought his presidential campaign to London. The current favourite to succeed François Hollande has a natural electoral incentive to do so. London is home to 300,000 French voters, making it by France's sixth largest city by one count (Macron will address 3,000 people at a Westminster rally tonight). But the telegenic centrist also took the time to meet Theresa May and Philip Hammond and to hold a press briefing.

If May hoped that her invitation would help soften Macron's Brexit stance (the Prime Minister has refused to engage with his rival Marine Le Pen), she will have been left disappointed. Outside No.10, Macron declared that he hoped to attract "banks, talents, researchers, academics" away from the UK to France (a remark reminiscent of David Cameron's vow to "roll out the red carpet" for those fleeing Hollande). 

At the briefing at Westminster's Central Hall, Macron quipped: "The best trade agreement for Britain ... is called membership of the EU". With May determined to deliver Brexit, he suggested that the UK would have to settle for a Canadian-style deal, an outcome that would radically reduce the UK's market access. Macron emphasised that he took a a "classical, orthodox" view of the EU, regarding the "four freedoms" (of people, capital, goods and services) as indivisible. Were Britain to seek continued financial passporting, the former banker said, it would have to make a significant budget "contribution" and accept continued immigration. "The execution of Brexit has to be compliant with our interests and the European interest".

The 39-year-old avoided a nationalistic tone ("my perspective is not to say France, France, France") in favour of a "coordinated European approach" but was unambiguous: "I don't want to accept any caveat or any waver to what makes the single market and the EU." Were the UK, as expected, to seek a transitional arrangement, it would have to accept the continued jurisdiction of the European Court of Justice.

Elsewhere, Macron insisted that his liberal economic stance was not an obstacle to his election. It would be fitting, he said, if the traditionally "contrarian" France embraced globalisation just as its counterparts were rejecting it. "In the current environment, if you're shy, you're dead," he declared. With his emotional, straight-talking approach (one derided by some as intellectually threadbare), Macron is seeking to beat the populists at their own game.

But his views on Brexit may yet prove academic. A poll published today showed him trailing centre-right candidate François Fillon (by 20-17) having fallen five points since his denunciation of French colonialism. Macron's novelty is both a strength and a weakness. With no established base (he founded his own party En Marche!), he is vulnerable to small swings in the public mood. If Macron does lose, it will not be for want of confidence. But there are unmistakable signs that his forward march has been halted. 

George Eaton is political editor of the New Statesman.