Donating Art to Foreign Institutions Is Less Complicated Than Most Collectors Realize

Noel Levine, a real estate investor and photography collector, was a long-time patron of the arts, providing photographs and millions of dollars to both the Metropolitan Museum of Art and the Museum of Modern Art (both of which have galleries named in his honor), as well as to other cultural institutions in the United States. However, in 2008, eight years before he died at the age of 95, he and his wife Harriette decided to donate their entire collection of fine art photography—which included works by Man Ray, Edward Steichen, Paul Strand, Andre Kertesz and Alfred Stieglitz, as well as David Hockney, Robert Mapplethorpe, August Sander, Cindy Sherman and William Wegman—to the Israel Museum in Jerusalem. They also contributed $1 million to the museum’s endowment fund, adding to the $12 million that the couple had donated to the photography department in 2005.

It’s not unusual for collectors to donate to foreign museums and cultural institutions, but it can be a bit more complicated for an American taxpayer than donating to a nonprofit institution in the United States. You can, of course, donate artwork to any museum anywhere in the world, but if you want to declare a tax deduction for the gift, it might not qualify. Individual donors are permitted to take any tax deduction for gifts to foreign countries or their museums, according to Michael Kosnitzky, a partner in the Miami-based law firm Pillsbury Winthrop Shaw Pittman. However, “they may take a full fair market tax deduction for donated items to foreign museums when the objects are first given to a U.S.-based Friends-of organization.”

One such group is the American Friends of the Musée d’Orsay, headquartered in New York City. In 2016, a New York couple, Marlene and Spencer Hays, agreed to donate more than 600 paintings by such French artists as Pierre Bonnard, Edgar Degas and Henri Matisse to the Musée d’Orsay in Paris upon their deaths. The donation was actually made to the organization, which agreed to loan the collection to the French museum until several years have passed and the museum makes a formal request to the group to take permanent ownership of the artwork.

Kosnitzky noted gifts of art or cash need to be used for the foreign nonprofit’s “exempted purpose for three years before title was transferred.” But U.S. donors like the Hays or their estate can take an immediate tax deduction for the gift based on its appraised value. Unless, that is, the foreign nonprofit used the gift for a non-exempt purpose—the Musée d’Orsay using the paintings as blankets, for instance—or if it were to decide that it no longer wanted the artworks before the three years are up, in which case the donors would need to amend their tax returns to revalue the objects not at their appraised value but on a cost basis.

There are hundreds of such groups in the U.S., from American Friends of the Blind in Greece and American Friends of the Czech Republic to American Friends of the Alexander von Humboldt Foundation and American Friends of Tel Aviv University. After a series of coordinated terrorist attacks in Paris in 2015, “we had 500 to 600 donations of cash in a couple of days,” said Emily Grand, administrator of the New York City-based GHS Philanthropy Management, which oversees more than a dozen “Friends-of” organizations, including the Friends of the Fondation de France, which collects monetary gifts from U.S. citizens and disperses it to the philanthropic network known as the Fondation de France in Paris. “The outpouring of support was spectacular and uniquely American.”

As with monetary gifts to any U.S. nonprofit, donations to Friends-of groups may be made in a variety of forms, but no one turns down money—in part because money is the least complicated gift to accept. The process of donating objects like artwork adds complexity on both sides, as the Friends-of group acts as a conduit of information to the foreign museum or cultural institution, which could decide not to accept a potential gift. Someone, for instance, may find in the back of a forgotten closet that they think might be of interest to the Louvre, but a curator at the museum doesn’t agree. Consequently, the American Friends of the Louvre organization may not accept a piece of art until a curator or collections committee at the museum agrees to take it.

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In fact, Friends-of organizations rarely see or touch the artworks that are offered. They exist as an office with minimal staff, none of whom are curators. Prospective donors of objects are asked to send specific information to the Friends-of group (i.e., photographs, a condition report, an assessment of the object’s value by a qualified outside appraiser and the particulars as to its history of ownership to show it was not stolen or looted), and the organization relays that information to the museum for approval. Curators tend to be world travelers, visiting other museums to inspect objects and sometimes to deliver pieces to institutions for exhibition loans, and they will often make time in their schedules to stop by the home or storage site of the prospective donor to examine the proposed gift. They will then report back to their directors or acquisitions committees about the offered gift and their recommendation as to whether or not to accept it.

Once there is museum-level approval, the board of directors of the Friends-of organization can officially accept the donation and vote to loan the item to the institution for three years, after which a final request for title transfer will be made. Until that happens, the Friends-of organization is the owner of the work.

The process is generally smooth, although prospective donors need to recognize that they have less leverage to negotiate the terms of their gift than if it were being made to an institution in the U.S. A foreign museum, just as an American museum, cannot be compelled by a donor to use an artwork (or cash gift) in a particular way. Additionally, as the Friends-of organization owns the gift, it can make its own decisions about how it will be used—at least for several years. According to the guidelines published by the American Friends of the British Museum, “The Directors of the American Friends of the British Museum have complete discretion and control over the ultimate disposition of any contributions received by the organization. While donors may suggest that their gifts be used for a specific purpose, these requests are non-binding on the American Friends of the British Museum.”

Those rules are the same for all Friends-of groups. Another similarity involves the cost of packing, crating, shipping and insuring artworks bound for foreign institutions. Friends-of organizations generally handle the logistics of pick-up, insurance, shipping and crating, while the costs are passed to donors. The American Friends of the Louvre considers the costs of shipping an artwork to France as being “part of the gift,” according to a staffer who wished to remain anonymous.

The artworks given by the Hays to the Musee d’Orsay were all by French artists, but not all donations are so culturally specific. The Friends-of organization for London’s Tate Gallery, for instance, has acquired works for the institution by American artists including Roni Horn, Louise Lawler, Josiah McElheny, Raymond Pettibon, Robert Smithson, Kara Walker and Christopher Wool. The organization has also sought out works by Latin American artists, including Maria Fernanda Cardoso, Lygia Clark, Gego, Felix Gonzalez-Torres, Guillermo Kuitca, Cildo Meireles and Hélio Oiticica, all of which have entered Tate’s permanent collection.

The reasons U.S. citizens donate artworks or cash to foreign institutions are varied. Some have lived in another country for a period of time; others have family abroad or maintain dual citizenship. A spokeswoman for the American Friends of the British Museum told Observer that some donors choose museums in England because they have vacationed there “and they really love it and love the British Museum.” And not all donors to the American Friends of the Israel Museum are Jewish, although the majority are. They may have some family connection to Israel or have simply visited and enjoyed the Israel Museum. In fact, many of the artworks donated to the museum through the Friends-of organization are by artists who themselves have no Jewish ancestry, such as Andy Warhol, Ellsworth Kelly, Frank Stella, Robert Rauschenberg, Max Ernst, Olafur Eliasson and Richard Avedon, in addition to the artists who shot all those photographs donated by Harriett and Noel Levine. Similarly, the majority of donors to the American Friends of the Prado, an organization based in Minneapolis, are not of Spanish origin, nor are most donors to the New York City-based American Friends of the Louvre French. “It’s a mixed bag,” a spokesperson for that organization told Observer. “A number of people visited the Louvre and thought that they had works or whole collections that matched the items collected by the museum.”

Other than the tax deduction, there are other benefits donors may receive from recipient institutions—usually linked to the generosity of the donation. At the Louvre, donors who give via the Friends-of organization receive “invitations to Louvre events in the U.S., exhibition openings in Paris, free admission to the Louvre, discounts in museum cafés and shops and more, depending upon the level you choose,” according to the group’s website. Similarly, the American Friends of the Prado Museum offers free admissions to donors, while those who give gifts to the American Friends of the Israel Museum gain “access to a range of exclusive benefits including invitations to special events, trips and other private gatherings.” Depending upon their level of largesse, donors to the University of Oxford North American Office receive naming opportunities (“buildings, schools, libraries, institutes, chairs, posts, scholarships, plaques and rolls of honour”), an invitation to an annual dinner at Oxford, their names “engraved in the Clarendon Arch, near the entrance of the historic Bodleian Library” and even a medal.