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April 16, 2016

Saturday, April 16, 2016 - ,,,,,,,, No comments

Hidden Ownership - the Panama Papers

By;  A.M.C. Knutsson

In recent days numerous articles have been released outlining the role of art in the Panama Papers. (For an outline of the nature of the Panama Papers click here.) Based on these leaked files, journalists have mapped how art has figured within a system of tax avoidance and ownership concealment. Both for the money and for the art, the purpose of these ventures can be described as a superficial repudiation of ownership, in order to fortify the same and to protect the assets from various types of intrusions.  The usage of shell-companies can thus safeguard the real owners from challenges to their ownership as they officially are not the named owners.

One example of this is the case of Dmitry E. Rybolovlev, the Russian billionaire collector, who according to the International Consortium of Investigative Journalists (ICIJ) used the infamous law firm Mossack Fonseca to protect his ownership of his $2 billion art collection during his divorce proceedings.[1]  The divorce proceedings started in December 2008 and according to Swiss law, which the couple resided under, the two spouses were entitled to equal parts of their wealth. However, Mossack Fonesca had been instrumental in transferring ownership of the collection, which included, among others, paintings by Picasso, Van Gogh, Modigliani and Rothko, to the company Xitrans Finance Ltd in the British Virgin Islands. This meant that they could no longer be found nor considered part of their shared wealth in the divorce proceedings. [2] On April 6 Rybolovlev's family lawyer made a statement claiming that the "description and references to the divorce proceedings of Mr Dmitriy Rybolovlev are misleading", as it "fails to state that the ex-spouses Rybolovlev amicably settled their matrimonial dispute and announced in a joint statement dated 20th October 2015".[3]  He further points to the fact that Xitrans Finance had been established in 2002, several years before the divorce proceedings and that its use "as a holding entity to constitute a remarkable art collection has been publicly disclosed in numerous publications worldwide and is perfectly legitimate.”[4]

Nevertheless, according to the Panama Papers Mossack Fonseca has for decades been helping spouses to shield assets from their better halves. Martin Kenney, an asset recovery specialist based in the British Virgin Islands has been helping wives from numerous countries including the UK, USA and Russia to recover hidden possessions. According to him, “These offshore companies and foundations . . . are instruments in a game of hide and concealment.”[5]

Another type of ownership obscurity can be seen in the case of the Seated Man with a Cane, a Modigliani painting bought in 1996 by the International Art Centre (IAC) and valued at $18-25 million.[6] According to a restitution claim filed by Philippe Maestacci on October 28, 2011, this painting had been looted by the Nazis from his grandfather, the art dealer Oscar Stettiner. Stettiner's inventory had been sold by Marcel Philippon a Nazi-appointed administrator after Stettiner fled from Paris in 1939. The Modigliani had been sold in 1944 and as early as 1946 Stettiner tried to retrieve the work but died two years later without resolving the claim. [7] In 2011 Maestracci picked up the struggle and sued the art dealing Nahmad family, often associated with the IAC, seeking the return of the painting. However, the suit was withdrawn when the Nahmads claimed that the IAC owned the painting and rather than themselves.[8] Indeed the ICIJ has reported that “The Nahmads have insisted in federal and state court in New York that the family does not possess the Modigliani.”[9] The Panama papers have now revealed that the International Art Centre has been owned by the Nahmad family for 20 years and since 2014 the patriarch David Nahmad has been the sole owner.[10] Confronted by the ICIJ David Nahmad's lawyer, Richard Golub, insisted that "Whoever owns the IAC is irrelevant", and the main issue is that Maestracci has no evidence that his grandfather, Stettiner, was the painting's original owner.[11] This standpoint seems not to be commonly shared and on April 8 the Geneva Prosecutor's Office searched the facilities in the Geneva Ports looking for the lost painting.[12] It was later revealed that the painting had been confiscated by the prosecutors during the raid.[13] While the restitution claim remains to be settled the reappearance of the painting and the confirmation of David Nahmad's ownership finally makes it possible for Philippon to proceed with his restitution claim.

According to Anders Rydell who has studied Nazi looted art, this case is not unique but he has found several other cases of Nazi confiscations figuring in the leaked files, which have also been hidden away through shell-companies and thus been beyond the reach of restitution claims. With the release of the Panama Papers he observes that "Maybe the right full owners may get their art back."[14]

In addition to these ownership battles, ample works of art are believed to be hidden away from sight as well as tax through shell-companies in the Free Ports. [15] The story of hidden art has just started to unfold and has still a long way to go. What the new discoveries in the Panama papers reveal is not all that surprising, but rather a sad prediction revealed to be true. The art market has long been known to involve shady deals and international crime syndicates. The revelation that art is hidden away should not be news to any of us, but perhaps the emergence of the Panama Papers actually offers a rare opportunity to resolve some of the long standing mysteries which has troubled the art market. Perhaps this will allow restitution claimants fresh material which can enable them to proceed with their cases. Perhaps long lost paintings will be rediscovered from the bowls of the world's Free Ports. Perhaps not. We will wait and we will see.  

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 [1]  http://www.nytimes.com/2016/04/12/arts/design/what-the-panama-papers-reveal-about-the-art-market.html?_r=0, access 15 April 2016
[2] http://theartnewspaper.com/news/news/panama-papers-russian-billionaire-dmitry-rybolovlev-used-offshore-company-to-hide-art-from-wife-leak/, access 15 April 2016
[3]   Ibid
[4]   Ibid
[5] https://panamapapers.icij.org/20160403-divorce-offshore-intrigue.html
[6] http://www.nytimes.com/2016/04/12/arts/design/what-the-panama-papers-reveal-about-the-art-market.html?_r=0, access 15 April 2016
[7] http://www.artnet.com/magazineus/news/artnetnews/nahmad-gallery-sued-for-allegedly-looted-modigliani.asp, access 15 April 2016
[8]  http://theartnewspaper.com/news/museums/panama-papers-expose-art-world-s-offshore-secrets-/, access 15 April 2016
[9]  Ibid
[10] http://www.nytimes.com/2016/04/12/arts/design/what-the-panama-papers-reveal-about-the-art-market.html?_r=0, Access 15 April 2016
[11]  Ibid
[12] http://www.artmarketmonitor.com/2016/04/09/swiss-prosecutors-raid-freeport-looking-for-modigliani/, Access 15 April 2016
[13]  http://www.bloomberg.com/news/articles/2016-04-11/modigliani-painting-sparks-criminal-probe-and-geneva-art-search, Access 15 April 2016
[14]  http://www.jp.se/article/anders-rydell-om-gomd-nazikonst/, Access 15 April 2016
[15] http://www.dn.se/kultur-noje/konst-form/konstvarlden-kopplas-till-panama/, Access 15 April 2016

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