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.

Photo: Getty
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David Cameron's prisons speech could be the start of something good

If the Prime Minister puts his words into action, then this speech could mark the beginning of a big shift on prisons policy. 

David Cameron’s speech condemning prisons as violent and failing could herald a seismic change in policy. He is absolutely right to point to the waste of money, effort and lives that characterises today’s prison system. He is also right about the direction of travel that needs to be taken and some of his ideas are at the very least worthy of discussion. The most important reform was missing, as none of his aspirations can happen unless the sheer number of men, women and children in prison is cut, and cut radically. Sentencing reform is the lynchpin.

The detailed proposals will be scrutinised as they are rolled out over the coming months, but the urgent over-riding challenge is to cut the prison population. Last week the number of men in prison increased by 185, and in the last four weeks the prison population has gone up by 684 men and women. Prison overcrowding is not standing still, it is rapidly deteriorating.

Chris Grayling closed 18 prisons and wings, reallocating the population into the shrunk estate. He cut prison staff by more than a third in each prison. The result was overcrowded, understaffed, violent prisons full of drugs and very disaffected staff trying to control frustrated prisoners on restricted regimes.

I was expecting some thinking on who we send to prison and what we do with them when they are incarcerated to create the conditions for radical reform. I was disappointed as the proposals were oddly reminiscent of things that Labour tried and contributed to this mess in the first place.

Labour was very proud of building lots of new prisons, hoping that they would build their way out of an overcrowding crisis. What happened of course was that new prisons were filled even before they were completed so the old prisons couldn’t be closed. Today we hear that £1.3 billion will be spent on building ‘reform prisons’ that will pilot new ways of working. My worry is that they will become warehouses unless the sheer number of prisons is restricted and resources are allocated to allow for just the sort of flexibility being proposed.

Giving governors more autonomy sounds good, and I support it in principle, but they always used to have their own budgets with discretion to choose how to spend it, including commissioning education and other services. It is no good having increased autonomy if they are constantly firefighting an overcrowding crisis and not given the resources, including well trained prison staff, to implement new ideas.

We already have league tables for prisons. Every few months assessments of how prisons are performing are published, along with regular inspections and independent boards monitor conditions. Reoffending rates are published but this information is less robust as prisoners tend to move round the system so how can one establishment be accountable.

I was pleased to hear that work inside prisons is going to be a key reform. But, the Prime Minister referred to a small project in one prison. Projects with desultory training in the few hours that men get to spend out of their cells will not instil a work ethic or achieve work readiness. Prisoners get a pack of cereals and a teabag at night so they don’t have breakfast, are not showered or clean, are wearing sweaty and shabby clothes.

Every day men and women are released from prison to go to work in the community as part of their programme of reintegration. This is extremely successful with incredibly few failures. So what is the point of adding extra expense to the public by tagging these people, unless the purpose is just to feed the coffers of the private security companies.

There are imaginative ways of using technology but what was being suggested today looks as though it is just adding restrictions by tracking people. That would be neither creative nor effective.

David Cameron is looking to his legacy. I fear that I could be listening to a Prime Minister in five or ten years bewailing the dreadful prison conditions in institutions that are no different to today’s overcrowded dirty prisons, except that they were built more recently. He will have achieved a massive investment of capital into expanding the penal estate but, whilst there will be more prisons, even the new jails could be overcrowded, stinking and places of inactivity and violence.

I want the Prime Minister to look back on today’s speech with pride because it achieved humanity in a system that is currently failing. I would like to see a prison system in decades to come that is purposeful, with men and women busy all day, getting exercise for the mind, body and soul. I would like to see prisons that only hold people who really need to be there because they have committed serious and violent crimes but whose lives will be turned around, who achieve redemption in their own eyes and that of victims and the public.

My job is to hold him to account for this vision. If what he announced today achieves radical reform and changes lives for the better, I will cheer. I will be watching.

Frances Crook is the Chief Executive of the Howard League for Penal Reform.