Tax Law Article

Collecting Taxes on Collectibles

By:  Clark, Campbell, Lancaster & Munson, P.A.

Do you have a collection that you wish to sell? If so, the IRS may determine that your collection is composed of “collectibles” and apply a 28% capital gains tax rate to any gain you may acquire from the sale of your collection. Generally, for most taxpayers, the capital gains tax rate is 15%.

Q: What are collectibles?

A: The IRS has stated that the following are collectibles:

  1. Works of art;
  2. Rugs;
  3. Antiques;
  4. Metals;
  5. Gems;
  6. Stamps;
  7. Coins;
  8. Alcoholic beverages;
  9. Musical instruments;
  10. Historical objects; and
  11. Any other tangible personal property specified by the Secretary for purposes of this subsection.

Notably, comic books, toys, and cars are not explicitly provided in the above list. However, the IRS has the discretion to consider such items as collectibles depending on the facts and circumstances.


Q: What is an example of tangible personal property that the IRS may consider a collectible?

A: Taxpayer collects dolls from a popular toy company and keeps her collection in a climate controlled storage unit. Taxpayer sells five dolls from her collection for $1,000.00. Taxpayer’s dolls may be considered a collectible if taxpayer’s treatment of her collection indicates that she is attempting to preserve her collection’s value, the collection has considerable value, the dolls are sought after collectors, and the taxpayer has no personal use for the dolls.


Q: I have an item that is considered a collectible; will I automatically be subject to the 28% capital gains tax rate for any gain I may acquire from the sale of my collectible?

A: Not necessarily. In order for the 28% capital gains tax rate to apply, the item must be held by the taxpayer for more than a year. For example, if taxpayer bought a collectible in January 2017 and sold the same collectible in April 2017 for a profit, then the sale will not be subject to the 28% capital gains tax rate because taxpayer held the collectible for less than a year. Instead, the sale of the collectible will likely be taxed as ordinary income.


Q: How do I determine basis in my collectible?

A: It depends on how the collectible was acquired. For example, taxpayer’s great grandmother bought a collectible in 1960 for $3.00, and at the time of her death, the collectible was valued at $1,000.00. If taxpayer inherited the collectible from her great grandmother, then taxpayer’s basis in the collectible will be its fair market value at the time of inheritance, which is $1,000.00. If taxpayer’s great grandmother gifted the collectible during her lifetime to the taxpayer, then taxpayer’s basis in the collectible will be her great grandmother’s basis in the collectible, which is $3.00. If taxpayer bought the collectible from an auction, then taxpayer’s basis in the collectible will be the amount taxpayer paid for the collectible, plus any auction fees. Finally, a taxpayer’s basis in a collectible may increase due to maintenance and restoration costs to preserve the collectible’s value.


Q: Are there any other tax consequences that I should consider?

A: Yes. Generally, collectibles are sold at a loss. Whether a taxpayer will be able to claim a loss from the sale of a collectible will depend on whether the taxpayer personally used the collectible and whether the taxpayer is engaged in a hobby or a business.

If you are unsure whether you have a collectible or whether you may claim a loss from the sale of your collectible, it is advisable to seek counsel from a tax professional.

Animal Law

Recent Court Case Might Not Be Just for the Birds

By Clark, Campbell, Lancaster & Munson, P.A.

Q: I raise wild birds for sale as pets on my property.  Can I qualify for an agricultural tax exemption for my property?

 A:  In McLendon v. Nikolits, the 4th District Court of Appeal (DCA) recently held that a property owner who engages in aviculture – raising wild birds for sale as pets – can qualify for an agricultural tax classification for the part of their property used for aviculture.  The 4th DCA’s decision may also perhaps be applied to other types of pet breeding, such as dog breeding, and the agricultural tax exemption if they qualify.

Todd and Shire McLendon own a 5-acre parcel located in Palm Beach County, and the McLendons have used the property for aviculture since 2006.  From 2006 through 2012, the Palm Beach County Property Appraiser granted an agricultural tax classification for 4.5 of their acres because of its dual uses for aviculture and cattle grazing.

In 2012, the Property Appraiser denied the agricultural tax classification for the McLendons’ 4.5 acres and issued the tax classification for only 2.25 acres.  The McLendons appealed, and the Value Adjustment Board (VAB) held that 4.5 acres should be given the agricultural classification.

In 2013, the Property Appraiser again denied the agricultural tax classification for the part of the property devoted to aviculture.  The McLendons appealed again, and a special magistrate appointed by the VAB found in favor of the McLendons.  The Property Appraiser appealed to the circuit court, and the Property Appraiser also denied the agricultural classification for 2014.

The Property Appraiser argued that the legislature intended to limit agricultural activities to only those listed in the statute because the legislature included only “poultry” and not “aviculture” in the list of activities that constitute “agricultural purposes” in the statute.

However, the McLendons argued that the legislature did not intend for the list to be exclusive or exhaustive because the legislature used “includes, but is not limited to” in the statute.

The trial court concluded that aviculture was intentionally left out of the statute and that bird-related activities qualifying as agriculture were limited to “poultry.”  The trial court also indicated that allowing the breeding of pets, and birds in particular, to qualify for an agricultural exemption, would open the floodgates and allow many landowners to claim the agricultural exemption for various types of pet breeding thus in turn leading to abuse of the system.

On appeal, the 4th DCA found that “includes, but is not limited to” is not ambiguous, and the 4th DCA found that the term “farm product” is defined in Fla. Stat. § 823.14(3) as “any…animal…useful to humans” under the Florida Right to Farm Act.

Through the use of expert witness affidavits at trial, the McLendons were able to convince the court that aviculture is useful to humans for reasons such as companionship, concern for endangered species, entertainment, education, and scientific purposes.

Accordingly, the 4th DCA reversed the trial court’s decision and held that the McLendons’ portion of the property used for aviculture qualifies for an agricultural tax exemption.  It will be interesting to see how the Polk County Property Appraiser reacts to this recent decision, and unless the Florida legislature closes this loophole, this might be a case for the 2nd DCA and perhaps Florida Supreme Court to decide if there is a conflict between DCA’s.