ELS Sponsors Career Panel

The DePaul College of Law was treated to an engaging discussion during the lunch hour on October 17^th.  ELS sponsored a moderated career panel featuring attorneys working in the fields of environmental law, conservation, and policy.  Students were joined by Evan McGinley from the Illinois Attorney General’s Office, Stacy Meyers of Openlands, and Steve Kaiser and Gary Steinbauer with the U.S. EPA. The attorneys provided thoughtful comments about what courses, experiences, and skills are valuable in preparing students for careers in environmental law and beyond. Our panelists were kind enough to pose for a photograph with ELS President Brandon Clark following the successful event.

What’s the difference between $0 and $65 million?

Apparently, a bald eagle. Robert Rauschenberg’s painting, Canyon, is ruffling some major feathers in the Art, Environmental, and Tax legal world. Why? Because the art at issue, a sculptural combine, includes a stuffed bald eagle: a bird under federal protection. 

Illena Sonnabend’s heirs inherited Rauschenberg’s Canyon along with the rest of her estate in 2002. In most cases, inheriting a Rauschenberg would equivocate to winning the lottery. However, the problem is that Canyon can never be sold since it contains a stuffed bald eagle, a violation of the country’s 1940 Bald and Golden Eagle Protection Act as well as the 1918 Migratory Bird Treaty Act. The law provides criminal penalties for persons who possess, sell, purchase, barter, transport, import or export any bald eagle—alive or dead—according to the U.S. Fish and Wildlife Service website.

Canyon first caught the attention of the Fish and Wildlife Service agents in 1981, when it reentered the U.S. through customs after a European tour. As a result, Sonnabend applied for and received a special permit to retain possession of the bird carcass mounted on canvas. Later, in 1998, the Sonnabend Gallery encountered new resistance. The Department of Interior officials notified the gallery that it would have to relinquish the carcass to U.S. Fish and Wildlife Service or donate the piece to a nonprofit museum, unless it could prove that the carcass was taken from the wild prior to 1940, when the Bald Eagle Protection Act was enacted.

To settle the matter, Rauschenberg himself swore before a notary-public that the eagle was old enough to be legal, explaining the eagle had belonged to a member of Teddy Roosevelt’s Rough Riders, who had taxidermed the bird prior to 1940. After his death in 1959, the family had tossed the unwanted carcass in the garbage. The artist then came within possession when a friend retrieved it from the trash and offered it to Rauschenberg.

Since federal statutes prohibit any traffic of bald eagles or their remains, the art cannot legally be sold. For this reason, three qualified appraisers, including Christie’s, have valued the unsalable work at “zero” for estate-tax purposes. However, the IRS Art Advisory Panel disagrees and is demanding Sonnabend’s heirs must pay another $29.2 million in taxes, as well as a related penalty of $11.7 million, maintaining that the heirs inaccurately stated the piece’s value. The original IRS estimation contained a suggested valuation of $15 million. But after refusing to pay, the Sonnabend estate received a formal Notice of Deficiency that increased Canyon’s value to $65 million. Ironically, due to the Federal law, this value is entirely hypothetical: normally, market price will determine the value of art, but Sonnabend’s heirs cannot sell Canyon without facing criminal penalties. Yet, the IRS justifies this number, arguing that the painting has potential value on the black market. To put the piece into market perspective, the top price ever paid for a Rauschenberg at auction is $14.6 million, which sold at Sotheby’s in 2008. The heirs are currently contesting the Notice.

The work currently hangs in the 20th-century galleries at the Metropolitan Museum of Art, where it remains on long-term loan. Sonnabend’s original collection, left to her heirs, was valued around $1 billion; they have already sold off about $600 million of art to cover the cost of taxes.

This isn’t the only circumstance in which these statutes have allowed for little to no reasonable excuse. A decade ago, Lawrence M. Small, secretary of Smithsonian Institute, allowed magazines to photograph his collection of Amazonian tribal art, much of which was made of feathers of protected rain-forest birds. The U.S. Fish and Wildlife Service soon began an investigation, which lead to Small pleading guilty to federal misdemeanor violations under the Migratory Bird Treaty Act.

The IRS policy has been unwavering over the years, so it’s certainly possible, however unfair it may seem, that the Sonnabend heirs will have to pay this tax and penalty. Yet, it is circumstances like these in which public policy may demand that the law consider its potential effect on individual lives in order to adjust to a more fair and workable standard.