Per Form Non-Willful FBAR Penalty Limitation (New)

Per Form Non-Willful FBAR Penalty Limitation (New)

Per Form Non-Willful FBAR Penalty Limitation

Per Form Non-Willful FBAR Penalty Limitation: The FBAR is the Foreign Bank and Financial Account Form (FinCEN Form 114). It is filed annually by U.S. persons with foreign accounts who meet the threshold requirements for filing. The purpose of the form is to report  the maximum value of their foreign accounts to the the IRS and FinCEN. The non-filing of the FBAR can lead to fines and penalties.

The main FBAR Penalty categories include:

  • Civil willful penalties
  • Civil non-willful penalties
  • Criminal penalties

Non-Willful FBAR Penalties

Whether or not a person has one foreign bank account or 20 accounts, they report the accounts on the same annual FBAR.

Therefore, when a person misses an FBAR filing, they may have failed to report one or several accounts to the IRS in the same year.

When it comes to non-willful FBAR penalties, they range as follows:

  • Warning letter in lieu of penalty.
  • A single $10,000 penalty for all violations
  • A $10,000 per year penalty
  • A $10,000 per account, per year penalty

The question becomes, just how much can the IRS penalize the taxpayer for the non-willful failure to file an annual FBAR?

*The $10,000 adjusts for inflation.

U.S. v. Bittner (2020 Court Ruling Update)

In the recent case Bittner, the IRS tried to issued a per account, per year non-willful FBAR Penalty. The defendant moved for partial summary judgment to reduce the penalty.

And, in a recent 2020 case ruling the District Court in Texas (Eastern District) agreed with Defendant’s position.

We will summarize why the court rules FBAR penalties are per form and not per account.

Non-Willful FBAR Penalties can be Rough

Taxpayers with unreported foreign accounts may be subject to FBAR Penalties.   

It is the rare case when a Taxpayer receives the highest penalty ($10,000 per account, per year) – but unfortunately, it happened to Mr. Bittner.

The U.S. Government then filed in District Court to enforce and collect on the FBAR penalties. Thereafter, Mr. Bittner pursued a Partial Summary Judgment Motion seeking to limit the penalties, and the Court (surprisingly) granted the motion.

The Texas Court ruled that the non-willful FBAR penalty is limited to an annual “per form” penalty and not a “per account” penalty.

FBAR Court Ruling

Here are some key excerpts from the court’s ruling:

“From 1996–2011, Mr. Bittner was a United States citizen and maintained an aggregate balance of more than $10,000 in foreign financial accounts. But he did not timely file FBARs for any of those years until May 2012.

In response, in June 2017, the IRS assessed the following penalties against Mr. Bittner for non-willful FBAR violations under 31 U.S.C. § 5321(a)(5)(A) and (B)(i): Year Total Number of Mr. Bittner’s Accounts Penalized Amount of FBAR Penalties Sought by Summary Judgment

Year Total Accounts Amount of FBAR Penalties
2007 61 $610,000
2008 51 $510,000
2009 53 $530,000
2010 53 $530,000
2011 54 $540,000
TOTAL 272 $2,720,000

The Government filed this action to reduce its penalty assessment to judgment, seeking a total of $2,720,000 in penalties against Mr. Bittner.

The Government’s motion for partial summary judgment, however, seeks only $1,770,000 in penalties, computed on the basis of the number of foreign accounts Mr. Bittner admitted to maintaining from 2007–2010.

The Government seeks partial summary judgment on the following:

Year Total Accounts Amount of FBAR Penalties
2007 51 $510,000
2008 43 $430,000
2009 42 $420,000
2010 42 $410,000
TOTAL 177 $1,770,00

Government Per Account FBAR Penalty Argument

The U.S. Government puts forward two main arguments in support of annual multi-account penalties: 

Argument 1: Reasonable Cause is Per Account

“The Government advances two primary arguments for why non-willful FBAR violations relate to specific financial accounts rather than to FBAR forms. First, the Government argues that, because the reasonable cause exception forgives the penalty for a non-willful FBAR violation and references the “balance in the account,” the non-willful violation itself must relate to each account.

That is, if the exception applies on an account-by-account basis, then the violation that the exception forgives must also apply on an account-by-account basis. While the Court recognizes this logic, it is unpersuaded. The Government has not provided any good reason for why the exception to a rule should somehow inform the calculation of the penalty for a violation of that rule.

Here, Congress assesses a maximum $10,000 fine for a non-willful violation—which is an account holder’s non-willful failure to submit her annual FBAR—while also providing a statutorily permissible excuse for noncompliance—the reasonable cause exception—that is completely independent from the violation itself.

It does not follow that the penalty is calculated on an account-by-account basis just because Congress provided that a taxpayer’s accurate reporting of the balance in her account(s) is a possible ground for excusing that penalty.

Congress can forgive non-willful FBAR violations any way it likes—even in ways that have nothing to do with the underlying violation. And why Congress elected to forgive non-willful FBAR violations in the particular way it did is not the issue before this Court; any attempt by this Court to comment on why the reasonable cause exception mentions “balance in the account” while the penalty provision does not would be pure conjecture.”

Argument 2: Willful Modifies Non-Willful

“The Government also argues that, because the penalty for willful violations simply modifies the penalty for non-willful violations, the underlying violation must also be the same. And because “the willful variant of the penalty is assessed with reference to each account,” the non-willful variant of the penalty should also be understood to relate to each account (Dkt. #29).

The Court acknowledges that the willful and non-willful variants of the penalty are connected, but the problem with this argument is it overlooks the fact that Congress may have had perfectly good reasons for choosing to compute the penalty for willful violations different from the penalty for non-willful violations. Indeed, willful violators pose a fundamentally different obstacle to the Government’s ability to monitor foreign financial transactions than non-willful violators do, and perhaps Congress drafted the provisions with different language to reflect those differences.

Ultimately, the most the Court can safely do is rely on the plain language that appears in the statute; because the penalty for willful violations includes explicit reference to “the existence of an account” and “the balance in the account” while the penalty for non-willful violations does not, the Court can infer that Congress intended the penalty for willful violations to relate to specific accounts and the penalty for non-willful violations not to.”

Court Holding on Non-Willful FBAR Penalty Violations

The court’s ruling is very thorough and well-written.

Here is the gist of it:

“The Court is persuaded that non-willful FBAR reporting deficiencies constitute a single violation within the meaning of § 5321(a)(5)(A) and (B)(i) and carry a maximum annual $10,000 civil money penalty, irrespective of the number of foreign financial accounts maintained.

This interpretation of the non-willful civil penalty is consistent with the plain language of the BSA when considered in view of the overall statutory and regulatory scheme, advances Congress’ and the Secretary of the Treasury’s stated purposes, and avoids absurd outcomes that would result if the non-willful civil penalty related to specific financial accounts.”

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