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February 12th, 2015
What to Do if You Receive a Subpoena
The press has reported on an investigation by the New York County District Attorney's Office into whether New York-based art galleries and collectors are properly collecting and paying sales tax on art purchases. According to the press, several galleries have confirmed receipt of grand jury subpoenas requesting billing and shipping records related to art sales. Although the scope of this investigation is unclear, the District Attorney's Office conducted a similar investigation several years ago into sales tax practices in the art world. That investigation reportedly recouped tens of millions of dollars in unpaid taxes and fines.
Upon receiving a subpoena or being contacted by investigators, consider these practical pointers:
- You are not obligated to speak with investigators. Investigators from the District Attorney's Office may visit your premises either to serve a subpoena seeking business records, or to talk to you generally about your business practices. You are not obligated to speak to law enforcement personnel including investigators from the District Attorney's Office. Any statements to investigators -- even the most innocent -- can be used against you. Talk to an attorney experienced in handling criminal investigations before having a conversation with investigators.
- If you have questions, ask your lawyer. If you have any questions about a subpoena, save the questions for your lawyer. Don't ask the investigator serving the subpoena. You should assume that the service of a subpoena for your business records, including records relating to the payment and collection of sales tax, is a serious matter that may implicate you or your business and you should discuss any questions or concerns with your own lawyers.
- Preserve records. Upon receipt of a subpoena, you should preserve all records until you can review them with your attorney. The deletion of any record, including deletions in the normal course of business, can be discovered and could be viewed as an attempt to cover up wrongdoing. As we all know, the cover-up may be worse than the crime.
- Do not discuss the investigation. Do not discuss the investigation or the receipt of a subpoena with anyone other than your attorney. Conversations with customers or employees or even with art consultants or accountants are not privileged and investigators can always ask such people to tell them about conversations that you initiated. Even the most innocuous comment can be misinterpreted. Do not discuss the subpoena or the investigation with anyone other than your lawyer.
If you have any questions about sales tax investigations or art-related legal issues, please contact Brian Maas at (212) 705-4836 or bmaas@fkks.com or any other member of the Frankfurt Kurnit Art Law Group or Securities Fraud & White Collar Defense Group.
Other Art Law Alerts
Appraisal Relied on by Estate Undervalued Paintings by $1.77 Million
Recently, in Estate of Kollsman v. Commissioner the U.S. Tax Court held that an art collector's estate significantly underreported the value of two artworks for estate tax purposes. The problem: the estate relied on appraisals by an auction house specialist who had an incentive to "lowball" the appraisals to win the right to later auction the works. In addition to this conflict of interest, the court found that the values reported by the estate were unpersuasive because the auction house specialist exaggerated the dirtiness of the paintings and failed to adjust his appraisals after one of the works sold at auction for approximately five times more than the reported value. Here's what you need to know about the case. Read more.
April 4 2017
Are Art Purchases by Out-of-State Residents Subject to New York Sales Tax?
New York State's tax authorities have been investigating whether New York-area art galleries are properly collecting and remitting New York sales tax on sales of artworks, and a recent New York State Department of Taxation and Finance ("Department") Tax Bulletin has shed some light on several Department positions with regard to sales of property to out-of-state residents, one of which is important to gallerists, collectors and other art industry professionals. Read more.
October 16 2015
