General Guidelines Regarding the Donation of
Prepared by The Office of General Counsel, Smithsonian Institution
This outline is designed to provide basic guidance to the museum professional regarding certain legal issues that arise in the donation of gems, jewelry, and minerals. Although by no means comprehensive, these guidelines are designed to highlight concerns and obligations common to most charitable donations. In that regard, the following information is divided into three parts. The first discusses the legal elements of a gift, the second, the museums role in appraising donated property, and the third, typical tax issues arising from the donation of gems, jewelry, and minerals to a museum.
I. Gifts in general
A. Complete and Current Gifts
For title of an object to transfer from the donor to the museum, three factors must be satisfied. First, there must be evidence of donative intent, i.e., that the donor actually wished to donate the item to the museum without restriction. Second, there must be delivery of the object to the museum. Without physical custody of the object, even though a promise to donate was unarguably made, the promise may be unenforceable. Finally, the museum must accept the gift. For some museums, formal acceptance may require action by an accessions committee, the museum director, or a governing body, such as a board of trustees.
Although not always required, a written deed of gift or a similar document should be executed to memorialize the gift. The deed ought to contain an explicit statement that the donor intends to transfer title as a gift, and that the museum has accepted the gift. The deed should be executed by the parties following delivery of the property to ensure that all elements of an enforceable gift are satisfied at that time. A comprehensive deed must also contain language indicating that the donor owned the object and possesses the ability to transfer title.
In addition, the deed of gift should expressly reflect, if appropriate, any restrictions or reservations regarding the scope of the gift. For example, a donor may dictate, as a condition precedent of the gift, the composition of the credit line or, in the case of archival donations, access restrictions. By carefully executing a deed of gift, future questions regarding a museums curatorial and conservation obligations, or challenges to title may be avoided.
While the deed is the best way to document a gift, it is not the only way. Letters and other forms of communication between the donor and the museum may provide, on a case-by-case basis, adequate evidence of a gift in light of a legal challenge. The mere absence of a deed of gift does not invalidate an otherwise legitimate gift. However, to the extent that questions regarding the passage of title may arise, a well-executed deed of gift serve as a museums best insurance.
B. Promised Gifts
In contrast to a executed gift, as described above, a promised gift consists of little more than its title suggests -- a promise that, sometime in the future, a gift of particular property will be donated to the museum. In general, such promises are unenforceable, even if in writing; a donor is free to change his/her mind without penalty. However, in dealing with a donor contemplating a promised gift, a museum may be able to transform the donors promise, or incomplete gift, into an enforceable contract. To create a contractual relationship from a promised gift, a museum must demonstrate
(1) that a definite promise to donate was made;
(2) that there was an agreement between the parties as to the scope and definition of the promise (a meeting of the minds); and
(3) that there was consideration on the part of both parties.
The most difficult element for a museum to prove (and the burden to do so rests with the museum) is that consideration was exchanged. Consideration is an act or forbearance or the promise thereof done or given by one party in return for the act or promise of another. For example, in a typical contract for services, the exchange of consideration is the promise of a party to pay money for the services of the other, coupled with the promise to render services in return for that payment.
With regard to donations, however, identifying the quid pro quo is more elusive. A museum must demonstrate that, in reliance on the promise, it acted or refrained from acting, and that, as a result, donor (or any heirs) should be estopped or precluded from retracting the promised gift.
For example, a prospective donor promises to donate a gem to a museum, if the museum promises in turn to allow access to its research collection to the donors child. The museum does so, and the child uses the collection for her entire college career. After her graduation, the donor informs the museum that he has changed his mind and that the gem will not be donated. In this case, the museum can seek to enforce the original promise upon the grounds that it acted in reliance on the donors representation, i.e., that the research collection was available for the donors child. That reliance, albeit less tangible than money, is the consideration paid by the museum in return for the donation.
In this regard, it is of critical importance for the museum to record all actions taken in reliance of the promise to donate property, including publicity related to the promised gift, the assumption of exhibition obligations for the property, and any restoration or conservation expenses assumed.
Finally, museum officials should be aware that some states require that the original promise must be in writing before a party can seek enforcement and, to the extent that museum may argue reliance upon that promise, that the promissor be informed of all actions taken by the museum. Local counsel should be consulted to ascertain the applicable state requirements.
Quite often a donor will request that the beneficiary museum appraise the donated property for Federal income tax purposes. Such requests inevitably place the museum in an awkward position. Some museum professionals
view the practice as an essential service in the competition for important donations. On the other extreme, such museum activity is looked on as a practice bordering on illegality. We need to examine the question in the context of the times. Although the practice may have been quite common years ago, it now must be more closely scrutinized in light of the increasing importance, to donors of the tax consequences of their gifts.
Marie C. Malaro, Managing Museum Collections 2d Ed.(1998), at 384-85. The key ethical and legal concern arising from the museum beneficiary proffering an appraisal is that it is not a dispassionate, but rather an interested, party in the transaction. Recognizing that danger and the need for impartial appraisals, the Internal Revenue Service (IRS) generally prohibits a museum from appraising, for Federal income tax purposes, donated property valued above a certain monetary threshold.
The purpose of the appraisal is to establish the fair market value of the donated property on the date of the contribution. Fair market value (FMV) is defined by the IRS as
the price that the property would sell for on the open market. It is the price that would be agreed on by the buyer and the seller, with neither being required to act, and both having reasonable knowledge of the relevant facts.
IRS Publication 561, Determining the Value of Donated Property, at 2. (For further discussion regarding the calculation of FMV, see pages 5-6 below). IRS regulations do permit museums some participation in the valuation process based upon the perceived FMV of the contribution.
With donations valued under $500, a museum can point the donor to auction catalogs, or send the donor to a local appraiser or dealer who can provide an opinion. Documentation for IRS purposes need only be maintained in the donors files.
For donations of property valued between $500 and $5,000, a qualified appraisal (defined below) is not required; however, IRS requires that certain information, such as FMV and the method use to determine it be included on section A, IRS Form 8283. To assist the donor on this magnitude of a gift, a museum may identify published records of contemporary sales of similar property, but, in doing so, should caution the donor that additional research by the donor may be necessary to establish the relevance of those sales. The museum may also provide the donor catalogs or names of local dealers who can provide reliable opinions as to value. The person who does provide the opinion should not be, in any way, connected to the museum.
With donations above $5000, the donor must obtain a qualified appraisal in order to claim a charitable deduction, and the museum may only recommend a list of qualified appraisers or direct the donor to a professional organization. A qualified appraiser is an individual who
holds himself or herself out to the public as an appraiser or performs appraisals on a regular basis,
is qualified to make appraisals of the type of property being valued . . .
is not an excluded individual, and
understands that an intentionally false overstatement of the value of the property may subject him or her to the penalty for aiding and abetting an understatement of tax liability.
IRS Publication 561, at 10. Excluded individuals include, among other, the museum as donee, and the private donor. Museums should avoid the appearance of endorsing any particular appraisers.
In sum, the museum should not actively participate in the appraisal process and surely not knowingly facilitate the overstatement of a donated propertys value. Indeed, if a museum, or its personnel, either provide inflated appraisals or knowingly accept property for which the donor will present an overstated deduction, the museum could be liable for aiding and abetting the understatement of tax liability. 26 U.S.C. 6701. However, Form 8283, Noncash Charitable Contributions, which a donee must sign does note that acknowledgment [of the gift] does not represent agreement with the claimed fair market value.
III. Miscellaneous Tax Concerns Arising from Gifts
The donation of gems, jewelry, and minerals often raise unique and difficult tax-related issues. As a practice, museums should not provide tax advice to prospective donors; instead, donors should be counseled to contact a tax advisor. Nevertheless, a general understanding of the tax consequences of charitable gifts is necessary if a museum expects to act intelligently and with integrity with matters of this nature arise.
A. Special Problems Regarding Fair Market Value
1. The IRS has recognized that valuing gems and jewelry for charitable deduction purposes raise peculiar considerations for the appraiser:
Jewelry and gems are of such a specialized nature that it is almost always necessary to get an appraisal by a specialized jewelry appraiser. The appraisal should describe, among other things, the style of the jewelry, the cut and setting of the gem, and whether it is now in fashion. If not in fashion, the possibility of having the property redesigned, recut, or reset should be reported in the appraisal. The stones coloring, weight, cut, brilliance, and flaws should be reported and analyzed. Sentimental personal value has no effect on FMV. But if the jewelry was owned by a famous person, its value might increase.
IRS Publication 561, at 4. If anything, the IRS acknowledgment of problems arising with the valuation of gems and jewelry underscore the importance that museums remain as scrupulously uninvolved as possible in the appraisal process.
2. Often donations are made by gem dealers to museums, and in seeking a charitable deduction, the dealer may seek to assert as FMV the gems retail price. However, the IRS has rejected such valuations, instead requiring the dealer to deduct only the inventory value:
If you contribute inventory (property that you sell in the course of your business), the amount that you can claim as a charitable deduction is the smaller of its fair market value on the day you contributed it or its basis [e.g., the cost to the business]
IRS Publication 535, Business Expenses, at 60.
3. At times, a donor will have purchased property at a price well below FMV and donate it shortly thereafter, seeking to deduct the full FMV. For example, in October 1999, a donor purchases a gem at a bankruptcy sale for $1 million. In 2001, the donor contacts a local museum of national history seeking to donate the gem. The museum accepts the donation and the donor claims a $2 million charitable deduction, asserting the FMV of the gem (supported by a qualified appraisal) is $2 million, not the recently-paid $1 million. The IRS challenges the deduction, noting that the recent bankruptcy sale price is the best evidence of FMV. Under a recent Federal district court decision, the donor should prevail if there is sufficient evidence (i.e., qualified appraisals) that the $2 million price reflects the FMV on the date of contribution. Herman v. United States, 73 F. Supp. 2d 912 (E.D. Tenn. 1999). In this case, the court noted that the bankruptcy sale price was not reflective of FMV at the time of sale, but instead was a gross undervaluation of the asset. Accordingly, the taxpayer was permitted to enjoy a tax windfall by donating property purchased at a bargain price and claiming as a deduction, its fair market value.
B. Problems with Unrelated Use of Donated Property
Both donors and museum professionals should be aware of the concept of unrelated use. As defined by the IRS, unrelated use is a use which is unrelated to the purpose or function constituting the basis of the charitable organizations exemption. 26 C.F.R. 1.170.A-4(b)(3). As long as donated property is used for purposes related to the museums functions -- educational, curatorial, administrative the donor is entitled to a deduction based upon the FMV of the property. However, if property is given for an unrelated use, the donors allowable deduction is instead limited to the FMV reduced by any amount that would have been a long-term capital gain if the donor had sold the property for FMV. Critically, an unrelated use includes the sale of the donated property by a museum, even when the proceeds are used for related purposes.
If the property is disposed of within two years of the gift, the museum must file Form 8282, Donee Information Return, with the IRS and provide a copy to the donor. The filing will likely trigger tax consequences for the donor.
A museum is not, of course, bound to hold donated property in perpetuity. At the time of the donation, the museum should have a good faith intention that the property will be put to a related use for an indefinite time. Museums should document, pursuant to eachs collection management procedures, any future sale or deaccession of the property.
If a museum is offered a collection of objects, the IRS regulations allow for the sale of an insubstantial portion of the group without triggering the unrelated use provisions. Pursuant to the regulations, [i]f a set or collection of items of tangible property tangible personal property is contributed to a charitable organization or governmental unit, the use of the set or collection is not an unrelated use if the donee sells or otherwise disposes of only an insubstantial portion of the set or collection. 26 C.F.R. 1.170.A-4(b)(3).
C. Fractional or Partial Gifts
Occasionally, the value of donated property may be so great with respect to the donors income, that the donor may not be able to enjoy the full benefit of the complete deduction. While IRS regulations allow the carryover of allowable deductions over five years, 26 C.F.R. 1.170.A-4(b)(3), a donor may wish, for tax or other reasons, to instead donate a fractional interest in the property. In a fractional gift situation, the donor gives the museum ownership of a portion of the property, with the understanding that the remainder will be donated at a future date.
For example, suppose Ms. X possesses a valuable gem collection that she wishes to donate to the local natural history museum. In her tax bracket, the five-year carryover period is insufficient to use the entire allowable charitable deduction. Ms. X can, instead, give the museum a one-half interest in the collection, with the understanding that after six-years, she will donate the remaining one-half interest. This arrangement will provide Ms. X with allowable charitable deductions over 10 years in addition to the two in which the gifts were made, rather than the five permitted had she donated the entire collection at one time.
Any donation of a fractional interest, however, should be accompanied with a loan agreement ensuring that the museum has custody of the property proportionate with its ownership. Moreover, fractional ownership raises issues of responsibility for insurance, conservation, and transportation that must be addressed before the donation is accepted.
 In general, property held less than one-year prior to donation is considered ordinary income property and the deduction available will be limited to the donors basis. See IRS Publication 544, Sales and Other Dispositions of Assets, at 19, IRS Publication 526, Charitable Contributions, at 7-8.