II 111th CONGRESS 1st Session S. 394 IN THE SENATE OF THE UNITED STATES February 9, 2009 Mr. Schumer (for himself and Mr. Crapo) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Internal Revenue Code of 1986 to provide the same capital gains treatment for art and collectibles as for other investment property and to provide that a deduction equal to fair market value shall be allowed for charitable contributions of literary, musical, artistic, or scholarly compositions created by the donor.

1.

Short title

This Act may be cited as the Art and Collectibles Capital Gains Tax Treatment Parity Act.

2.

Capital gains treatment for art and collectibles

(a)

In general

Section 1(h) of the Internal Revenue Code of 1986 (relating to maximum capital gains rate) is amended by striking paragraphs (4) and (5) and inserting the following new paragraphs: (4)

28-percent rate gain

For purposes of this subsection, the term 28-percent rate gain means the excess (if any) of— (A)section 1202 gain, over (B)the sum of— (i)the net short-term capital loss, and (ii)the amount of long-term capital loss carried under section 1212(b)(1)(B) to the taxable year. (5)

Reserved

. (b)

Effective date

The amendment made by this section shall apply to taxable years beginning after December 31, 2008.

3.

Charitable contributions of certain items created by the taxpayer

(a)

In general

Subsection (e) of section 170 of the Internal Revenue Code of 1986 (relating to certain contributions of ordinary income and capital gain property) is amended by adding at the end the following new paragraph: (8)

Special rule for certain contributions of literary, musical, artistic, or scholarly compositions

(A)

In general

In the case of a qualified artistic charitable contribution— (i)the amount of such contribution taken into account under this section shall be the fair market value of the property contributed (determined at the time of such contribution), and (ii)no reduction in the amount of such contribution shall be made under paragraph (1). (B)

Qualified artistic charitable contribution

For purposes of this paragraph, the term qualified artistic charitable contribution means a charitable contribution of any literary, musical, artistic, or scholarly composition, or similar property, or the copyright thereon (or both), but only if— (i)such property was created by the personal efforts of the taxpayer making such contribution no less than 18 months prior to such contribution, (ii)the taxpayer— (I)has received a qualified appraisal of the fair market value of such property in accordance with the regulations under this section, and (II)attaches to the taxpayer’s income tax return for the taxable year in which such contribution was made a copy of such appraisal, (iii)the donee is an organization described in subsection (b)(1)(A), (iv)the use of such property by the donee is related to the purpose or function constituting the basis for the donee’s exemption under section 501 (or, in the case of a governmental unit, to any purpose or function described under section 501(c)), (v)the taxpayer receives from the donee a written statement representing that the donee’s use of the property will be in accordance with the provisions of clause (iv), and (vi)the written appraisal referred to in clause (ii) includes evidence of the extent (if any) to which property created by the personal efforts of the taxpayer and of the same type as the donated property is or has been— (I)owned, maintained, and displayed by organizations described in subsection (b)(1)(A), and (II)sold to or exchanged by persons other than the taxpayer, donee, or any related person (as defined in section 465(b)(3)(C)). (C)

Maximum dollar limitation; no carryover of increased deduction

The increase in the deduction under this section by reason of this paragraph for any taxable year— (i)shall not exceed the artistic adjusted gross income of the taxpayer for such taxable year, and (ii)shall not be taken into account in determining the amount which may be carried from such taxable year under subsection (d). (D)

Artistic adjusted gross income

For purposes of this paragraph, the term artistic adjusted gross income means that portion of the adjusted gross income of the taxpayer for the taxable year attributable to— (i)income from the sale or use of property created by the personal efforts of the taxpayer which is of the same type as the donated property, and (ii)income from teaching, lecturing, performing, or similar activity with respect to property described in clause (i). (E)

Paragraph not to apply to certain contributions

Subparagraph (A) shall not apply to any charitable contribution of any letter, memorandum, or similar property which was written, prepared, or produced by or for an individual while the individual is an officer or employee of any person (including any Government agency or instrumentality) unless such letter, memorandum, or similar property is entirely personal. (F)

Copyright treated as separate property for partial interest rule

In the case of a qualified artistic charitable contribution, the tangible literary, musical, artistic, or scholarly composition, or similar property and the copyright on such work shall be treated as separate properties for purposes of this paragraph and subsection (f)(3). . (b)

Effective date

The amendment made by this section shall apply to contributions made after the date of the enactment of this Act in taxable years ending after such date.