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I'm on the same page as you about all of that except the part about the market being illiquid. I think it would be doable to have a liquid enough market, where 90% of a given NFT collection is owned by the museum, but the remaining pieces are swapped around with some frequency. This is already how normal NFTs work much of the time--their "market cap" is sky high but this is because most of the supply is not circulating.
Yes, I understand none of this is necessarily an ironclad defense of the NFT's value, but aside from the internal IRS appraisers, I'm not sure how much more ironclad you can get than fair market value. I'm quite confident that, given NFT's properties (especially the ability to set extremely high transfer fees) you could set a "fair market value" extremely high without necessarily leading to a situation where people sell their NFTs without donating to them. That said, the IRS does include the stipulation that the market must not be artificially inflated, which sounds like a pretty central description of this whole scheme. Maybe.
In the end, I agree there's still a piece missing, but if it's possible for standard art then it's probably possible for NFTs too.
To me, the part that doesn't work is the idea you can "set" the fair market value. The fair market value is the price a knowledgeable buyer would actually pay for the entire quantity donated. The appraisal value must be for the entire collection donated. If you can today produce NFT's people will actually pay $5MM for a cost to you of $50k. You should, and will make a profit of $4.95M and have to pay taxes on the gains. This is always strictly better than just collecting the tax savings. If the NFT market is not actually deep enough to clear $5MM from selling all the NFT's in an open market the fair market value is not $5MM.
If all you have done is manipulate the market cap up by adding transaction costs, limiting the free float, or trading with yourself or co-conspirators you have not set the fair market value higher. You have just committed more crimes by manipulating the price of unregistered securities.
You have to make an affirmative case for your valuation if the IRS challenges it, which is going to be pretty hard when 79% of all NFT collections ... remained unsold.
Edit: Always strictly better under the current system, Andrew Granato and Tyler Cowen pointed out this would not be the case under the proposed 40% capital gains rate back in 2021.
Just like with regular art, I think the process of donating it to charity actually increases its fair market value. Also, the fact that it was commissioned (rather than being sold directly by the artist) increases its fair market value. Yes, that isn't how these things should work, but art is mostly signaling anyways so in this case you literally get what you pay for; the more you pay the more valuable it is.
So, I think it is evident that there exist situations where I could create, then donate, an art piece worth $5MM, without being able to create and sell the piece for anywhere near as much.
Well, what I have in mind is that these pieces are created and donated a few at a time. I once again agree that it should work this way, but in practice this just isn't how art, or really anything, is valued. Is oil's fair market value determined by what someone would pay for all the oil in the world? Generally, no matter the asset, selling the entire supply at once would mean selling at a steep discount. The market doesn't need to be deep enough to absorb the entire supply at once for that to be the fair market value.
They're certainly not securities, no matter how much the SEC wants them to be. However the rest is valid. Like I said, I do think there's a piece missing before this scheme makes sense at all, but right now it's looking like the piece might exist.
Meh, they analyzed 73,000 collections. I can programmatically create that many for like $1 and now 90% of collections remain unsold. The "blue chip" NFTs, let's say the top 10, are like 80% of the total NFT market cap.
I'm not trying to 100% disagree with you, I think your objections are reasonable and generally it's the exact sort of thing the IRS would come down on hard, but I do disagree with some of the specifics and think that through that process of debate we can arrive somewhere closer to the truth.
If it is ever challenged by the IRS, you will need to make an affirmative case that the value has been increased, not only that there exist situations where it is possible. The price you would be able to sell for is literally the definition of fair value the IRS uses.
The value if you donate $5MM, marked to last trade or mid, worth of oil futures is very close to $5MM, close enough that you can probably claim the full $5MM. The true market value is close to but less than $5MM. This is because the oil futures are fungible and the market is very liquid, with literally trillions of dollars of notional value changing hands regularly. If you think you can regularly move $5MM of oil futures with literally zero transaction cost to arrival you should go become the worlds best market maker, you have discovered an infinite money glitch. What you are proposing is moving millions of dollars of notional value in market with a few tens of millions of dollars average daily notional volume where each product is non-fungible. Your price impact will be greater.
Surprisingly the SEC hasn't taken a strong stance on if NFT's are securities, but certainly is way to strong of a statment though since the existing case law contradicts you. It also doesn't change the criminality because of the fact that any artifice to manipulate a price done by computer is still wire fraud even if it is not securities fraud.
There is literally a section titled "The Current State of the Top NFT Assets." If you have the ability to consistently create some of the top valued NFTs you have a very valuable skill, running a tax scheme is arguably a very high risk way of monetizing that skill, but it shouldn't be surprising that there is some way to extract value from that ability.
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