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Podcast: In FBAR We “Trust” Part 4 – When ”Beneficial Ownership” Without Legal Title Constitutes A Financial Interest And Triggers An #FBAR Requirement

Introduction

This is the fourth of a series of four posts exploring some of the more difficult and “interesting” areas of (possible) FBAR obligations.The first post explains the FBAR filing obligations of trusts. The second post explains when individuals may have to file an FBAR because of their relationship to a trust. The third post explains how/why one may be required to file an FBAR based on control of an account rather than ownership of the account. This fourth post continues the discussion of when beneficial ownership without legal ownership triggers an FBAR obligation. The four posts are based on Podcasts with US tax lawyer Virginia La Torre Jeker.

Podcast 1: February 23, 2002FBAR Obligations Attaching To A Trust

Podcast 2: March 4, 2022FBAR Obligations Attaching To People Because Of Their Relationship To A Trust

Podcast 3: May 25, 2022Looking For Mr. FBAR – A New Sighting – ”exercised control over and had access to the account”

Podcast 4: September 29, 2022When ”Beneficial Ownership” Constitutes A Financial Interest And Triggers An FBAR Requirement

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Podcast: In FBAR We “Trust” Part 2 – Obligations Attaching To People Associated With A Trust

Introduction

This is the second of a series of four posts exploring some of the more difficult and “interesting” areas of (possible) FBAR obligations.The first post explains the FBAR filing obligations of trusts. This second post explains when individuals may have to file an FBAR because of their relationship to a trust. The third post explains how/why one may be required to file an FBAR based on control of an account rather than ownership of the account. The fourth post continues the discussion of when beneficial ownership without legal ownership triggers an FBAR obligation. The four posts are based on Podcasts with US tax lawyer Virginia La Torre Jeker.

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Podcast: In FBAR We “Trust” Part 1 – Obligations Attaching To A Trust Itself

Introduction

This is the first of a series of four posts exploring some of the more difficult and “interesting” areas of (possible) FBAR obligations.This first post explains the FBAR filing obligations of trusts. The second post explains when individuals may have to file an FBAR because of their relationship to a trust. The third post explains how/why one may be required to file an FBAR based on control of an account rather than ownership of the account. The fourth post continues the discussion of when beneficial ownership without legal ownership triggers an FBAR obligation. The four posts are based on Podcasts with US tax lawyer Virginia La Torre Jeker.

Podcast 1: February 23, 2002FBAR Obligations Attaching To A Trust

Podcast 2: March 4, 2022FBAR Obligations Attaching To People Because Of Their Relationship To A Trust

Podcast 3: May 25, 2022Looking For Mr. FBAR – A New Sighting – ”exercised control over and had access to the account”

Podcast 4: September 29, 2022When ”Beneficial Ownership” Constitutes A Financial Interest And Triggers An FBAR Requirement

Podcast 3: May 22, 2022 – When FBAR Obligations May Attach Without Signing Authority Over An Account
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Podcast 1

February 23, 2022 – Participants Include:

Virginia La Torre Jeker – @VLJeker

John Richardson – @Expatriationlaw

Prologue – Report Early! Report Often! Report Everything! Keep A Record Of What You Report!

In October of 2018, Virginia and I went “Looking For Mr. FBAR.” During the last three years we have uncovered many clues, we have learned many things, but it’s clear that we have not yet located Mr. FBAR. Virginia has written about many of her “sightings” in a series of “FBAR posts“. I have also written a number of posts documenting the various adventures of Mr. FBAR.

Mr. FBAR is elusive. He is is simultaneously not anywhere, but everywhere. There is no weapon in the US arsenal of forms that has created such fear and uncertainty. He has even threatened certain visitors to the United States for the failure to file an FBAR.

Legal Authorization

The statutory authorization for Mr. FBAR is found in 5314 of the Bank Secrecy Act. Most of the substantive law is found in FBAR Treasury Regulations and the IRS FBAR instructions. It’s important to note that Mr. FBAR lives in Title 31 (Bank Secrecy Act) which is different from Title 26 (Internal Revenue Code).

Mr. FBAR And The Filing Obligations Of Trusts

This podcast is a discussion of how Mr. FBAR impacts “trusts”. When is a trust a United States person? When must a trust file an FBAR to report the “financial accounts” of a related purpose of entity?

Federal Court Of Appeal Upholds Trial Decision Ruling Canada/US FATCA IGA Is Constitutional

Circa 2014

In June of 2014 the plaintiffs in the ADCS (“Alliance For The Defence Of Canadian Sovereignty”) lawsuit launched their legal challenge to the constitutionality of the Canada US FATCA IGA. The proceedings have gone through a Federal Court hearing in 2015, a second Federal Court hearing in 2019 and the Federal Court Of Appeal hearing in 2022. It has been a “long haul” and the plaintiffs (Ginny, Gwen and Kazia) – true unsung heroes in life – deserve the thanks of all Canadians.

On September 21, 2022 the Federal Court of Appeal dismissed the appeal from the trial decision (which ruled against the plaintiffs).

In other words, the US FATCA law continues to be endorsed by the Canadian courts as being the law of Canada too.

Every human being is a minority somewhere. US citizens living outside the United States are a minority wherever they live. Furthermore, because of FATCA (the tool to enforce citizenship taxation) they will ALWAYS have fewer rights than others in their country of residence. What is astounding is that the United States is ensuring that it’s own citizens are subject to discrimination! Such are the effects of citizenship taxation.

The advancement and protection of the rights of minority groups is always a marathon and not a sprint. It requires the relentless dedication to the goal of achieving justice. At this moment I would like to recognize and thank Patricia Moon, Carol Tapanila and Stephen Kish for their tremendous efforts, personal sacrifices and focus on this cause.

It’s also important and appropriate to recognize the support of the hundreds of anonymous people who contributed financially (in some cases their pension payments) and in other cases their encouragement that this legal challenge was necessary.

The next decision is whether to seek leave to appeal to the Supreme Court Of Canada.

I will write more about this in the next few days. What follows is a copy of the decision.

A-370-19_20220921_R_E_O_OTT_20220921132516

Those wishing to better understand the history, purpose and progression of this lawsuit might go here:

https://adcsovereignty.wordpress.com/the-summary-trial-book-of-posts/

John Richardson Follow me on Twitter @Expatriationlaw

Part 6: Mr. FBAR’s Civil Penalty – Does 31 USC 5321(a)(5) Authorize The Imposition Of ANY Civil Penalty For Failure To File An FBAR?

This Is Post 6 in a series of posts describing the statutory and regulatory history of Mr. FBAR.

These posts are organized on the page “The Little Red FBAR Book“.*

Mr. FBAR Visits The Supreme Court Of The United States!

But, maybe the issue is whether a civil FBAR penalty can be imposed at all instead of how much of a penalty can be imposed?

All of which is explained in the following video discussion

Conclusion:

The existing statutory scheme 31 USC 5321(a)(5) combined with 31 USC 5314 does NOT authorize the imposition of a civil penalty on an individual for the failure to file an FBAR prescribed by 31 C.F.R. § 1010.350. Furthermore, the original 5321(a)(5)created in 1986 is written in the same way and fails to authorize the civil FBAR penalty for the same reasons.

For more extensive analysis and parsing of the statutes read on …

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Part 5: Mr. FBAR’s Civil Penalty – 5321(a)(5): Bittner – Maximizing The Penalty By Imposing It On Each Account

This Is Post 5 in a series of posts describing the statutory and regulatory history of Mr. FBAR.

These posts are organized on the page “The Little Red FBAR Book“.*

As previous posts have described, the threshold question in an FBAR civil civil penalty case governed by 5321(a)(5), is whether the violation is “willful” or “non-willful”. If “non-willful” the penalty is limited to $10,000 (appropriately adjusted for inflation). If Willful” a much higher penalty regime – the greater of $100,000 USD or 50 percent of the account balance – applies. Given the potential for FBAR penalties to be a significant “fundraiser”, the government has clear incentives to argue for “willfulness”. In Schik we are reminded that “willfulness” is a question of fact which the government must prove by a “preponderance of the evidence standard”. In Toth we saw the government greatly assisted by a judicial sanction that deemed Ms. Toth to be willful. The most egregious aspect of Toth was that the government was not even required to meet its factual burden of proof. In Bittner the government was stuck with a factual finding of non-willfulness.

Q. How can the government maximize FBAR penalties in the context of non-willfulness?

A. By imposing the FBAR penalty on each unreported account rather than on the failure to file the FBAR itself.

Such is the context of Bitter where the government:

First, imposed a $10,000 penalty on each individual account; and

Second, repeated the process for five years resulting in approximately 2.7 million in FBAR penalties.

Interestingly, the effect of this approach was that the Government could assert FBAR penalties that exceeded the maximum penalties authorized under the 5322 criminal penalty provision. Why would the government take this approach? The answer comes from the last paragraph of the Solicitor General’s brief filed in the Bittner petition for certiorari.

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Part 4: Mr. FBAR’s Civil Penalty – 5321(a)(5): Toth – Excessive Fine, Based On Willfulness Decreed By Sanction And Not Factual Determination

This Is Post 4 in a series of posts describing the statutory and regulatory history of Mr. FBAR.

These posts are organized on the page “The Little Red FBAR Book“.*

On August 26, 2022 Ms. Toth filed a PETITION FOR A WRIT OF CERTIORARI to the Supreme Court of The United States.

QUESTION PRESENTED

The Bank Secrecy Act and implementing regulations require U.S. persons to file an annual report — called an FBAR — if they have foreign bank accounts containing more than ten thousand dollars. The maximum civil penalty for willfully failing to file the report is either $100,000 or half the balance in the unreported account, whichever sum is greater. 31 U.S.C. § 5321(a)(5)(C)-(D). Using this formula, the government imposed on petitioner a civil penalty of $2,173,703.00.

The question presented is whether civil penalties im-posed under 31 U.S.C. § 5321(a)(5)(C)-(D) — penalties that are avowedly deterrent and noncompensatory — are subject to the Eighth Amendment’s Excessive Fines Clause.

The petition describes the facts and procedural history as follows:

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Part 3: Mr. FBAR’s Civil Penalty – 5321(a)(5): Schik – Willful Or Non-Willful And What Does Willful Even Mean?

This Is Post 3 in a series of posts describing the statutory and regulatory history of Mr. FBAR.

These posts are organized on the page “The Little Red FBAR Book“.*

Introduction

The staring point is analyzing an FBAR violation is assess whether the violation was will or non-willful.

Part A – The question of willfulness is a question of fact that must be determined

Excerpts from the judgment – from MARY KAY VYSKOCIL, United States District Judge – include:

The expectation of the IRS was not borne out by courts around this country, which have uniformly held the Government to a preponderance standard in civil FBAR cases. See United States v. Demauro, 483 F.Supp.3d 68, 87 (D.N.H. 2020) (applying preponderance of the evidence standard to civil FBAR case); United States v. De Forrest, 463 F.Supp.3d 1150, 1156 (D. Nev. 2020) (same); United States v. Ott, 441 F.Supp.3d 521, 527 (E.D. Mich. 2020) (same); United States v. McBride, 908 F.Supp.2d 1186, 1201 (D. Utah 2012) (same); Bedrosian v. United States, 2017 WL 3887520, at *1 (E.D. Pa. Sept. 5, 2017) (same). Particularly instructive is a recent opinion from the United States District Court for the District of Connecticut. In United States v. Garrity, the court concluded that the standard generally applicable to civil suits for money damages-preponderance of the evidence-applied in civil FBAR penalty cases. 304 F.Supp.3d 267, 270-71 (D. Conn. 2018).

To be found liable for a willful violation under 31 U.S.C. § 5321(a)(5), the United States must prove by a preponderance of the evidence that: (1) Mr. Schik is a United States citizen, (2) Mr. Schik had an interest in, or authority over a foreign financial account; (3) the account had a balance exceeding $10,000.00 at some point during the reporting period; and (4) Mr. Schik willfully failed to disclose the account and file a FBAR. 31 U.S.C. §§ 5314, 5321(a)(5)(A); 31 C.F.R. §§ 1010.350(a) and (b). There is no dispute with respect to the first three elements. 56.1 ¶¶ 1, 5-6; see also Opp. at 9 (arguing only the willfulness prong). Mr. Schik also concedes that he did not timely file an FBAR for 2007. 56.1 ¶ 7.

At bottom, whether Mr. Schik’s conduct was “willful, ” rather than merely negligent, is a question of fact. United States v. Gormley t 201 F.3d 290, 294 (4th Cir. 2000) (state of mind is question of fact); Rykoff v. United States, 40 F.3d 305, 307 (9th Cir. 1994) (same); Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1476 (11th Cir. 1991) (state of mind is question of fact to be determined by factfinder at trial); United States v. Williams, 489 Fed.Appx. 655, 658 (4th Cir. 2012). The Court cannot conclude that Mr. Schik’s failure to disclose his accounts was willful as a matter of law. The evidence, taken in the light most favorable to Mr. Schik, creates a genuine dispute of material fact. Accordingly, the Government is not entitled to judgment as a matter of law on the issue of willfulness.

https://casetext.com/case/united-states-v-schik

Part B – Willfulness is a question of fact. But, what is/are the facts that must be proven to establish willfulness in the civil FBAR penalty context?

The test for what constitutes a willful FBAR civil FBAR violation is an evolving and difficult area of the law. The key point is that the government can establish willfulness without proving actual knowledge of the requirement to file an FBAR. Some states of mind and levels of awareness (recklessness or willful blindness) can suffice. In some cases the failure to acknowledge the existence of foreign accounts on Schedule B of the 1040 can suffice. Evidence of attempts to conceal the existence of accounts (failure to disclose to tax preparer, etc.) is relevant. In others words, “willfulness” is usually established by a combination of factors.

I will expand on this post over time. That said, one of the best expositions on this issue is found in the November 2018 article: What constitutes a willful FBAR Penalty? – Hale E. Sheppard which concludes with:

Conclusion

As this article demonstrates, the concept of “willfulness” in the FBAR setting has been controversial for a long time, and
the scrapping is bound to increase in the coming years as the OVDP comes to an end, the IRS gets more foreign account
data thanks to FATCA, the IRS enhances its ability to cross-check account data on FBARs and Forms 8938, theIRS starts international audits to confirm compliance with the new“repatriation tax” and other aspects of the Tax Cuts and Jobs Act of
2017, etc. In other words, FBAR issues will become even more important in the future, not less. Therefore, taxpayers who
have unresolved foreign account matters, who are contemplating opting-out of the OVDP, who are analyzing their eligibility
for the SFOP or SDOP, or who have already been caught by the IRS, need to hire experienced international tax professionals
and examine all relevant issues, especially the evolving concept of “willfulness.”

The cases of Toth and Bitter suggest Mr. Sheppard’s prognostication is correct.

FBAR violation article JTAX Nov 2018

John Richardson – Follow me on Twitter @ExpatriationLaw

Part 2: Mr. FBAR’s Civil Penalty – 5321(a)(5): Interpreting The Penalty Provision – Asking The Right Questions

This Is Post 2 in a series of posts describing the statutory and regulatory history of Mr. FBAR.

These posts are organized on the page “The Little Red FBAR Book“.*

Introduction – Distinguishing The Non-Willful Civil FBAR Penalty From Criminal Penalties

There have always been criminal penalties for FBAR violations. Civil penalties for FBAR WILLFUL violations were introduced as USC 31 5321(a)(5) in 1986. In 2004 USC 31 5321(a)(5) was amended to create a civil non-willful penalty. The current options for FBAR violations are:

– Criminal 31 USC 5322
– Civil willful 31 USC 5321(a)(5)
– Civil non-willful 31USC 5321(a)(5)

Each of these comes with its own permissible penalty range.

The purpose of this post is to explore ONLY the civil FBAR penalty regime in USC 31 5321(a)(5).

The text of the 53231(a)(5) …

(5)Foreign financial agency transaction violation.—

(A) Penalty authorized.—

The Secretary of the Treasury may impose a civil money penalty on any person who violates, or causes any violation of, any provision of section 5314.

(B) Amount of penalty.—
(i)In general.—
Except as provided in subparagraph (C), the amount of any civil penalty imposed under subparagraph (A) shall not exceed $10,000.
(ii)Reasonable cause exception.—No penalty shall be imposed under subparagraph (A) with respect to any violation if—
(I)such violation was due to reasonable cause, and
(II)the amount of the transaction or the balance in the account at the time of the transaction was properly reported.

(C) Willful violations.—In the case of any person willfully violating, or willfully causing any violation of, any provision of section 5314—
(i)the maximum penalty under subparagraph (B)(i) shall be increased to the greater of—
(I)$100,000, or
(II)50 percent of the amount determined under subparagraph (D), and
(ii)subparagraph (B)(ii) shall not apply.

(D) Amount.—The amount determined under this subparagraph is—
(i)in the case of a violation involving a transaction, the amount of the transaction, or
(ii)in the case of a violation involving a failure to report the existence of an account or any identifying information required to be provided with respect to an account, the balance in the account at the time of the violation.

Analyzing the statute: What has to be proved, by whom and according to what standard?

It is generally agreed that in the context of the civil (as opposed to criminal) that the standard of proof is the civil standard of “preponderance of the evidence” and NOT the criminal standard described in Cheeks of “beyond a reasonable doubt”.

When considering the operation of 5321(a)(5) penalties (and assuming a person “who violates, or causes any violation of, any provision of section 5314” ), the order of analysis in the civil FBAR penalty context should ask the following questions:

1. Was the failure to file or report willful or non-willful? If willful reasonable cause is not a defence and massive penalties “may” be imposed. (Willfulness is a question of fact and the government bears the burden of proof on a preponderance of the evidence standard.)

(To be clear, if there is a finding of willfulness then a penalty of the greater of $100,000 or 50% of the account balance at the time of the violation “may” be imposed.)

2. If the failure to report was non-willful (maximum penalty of $10,000) can the account holder defeat the imposition of a penalty by proving on a preponderance of the evidence (note the account holder bears the burden of proof):

(A) Reasonable cause for the failure to file; and

(B) that the account was properly reported.

3. If the failure was non-willful but the penalty cannot be defeated through reasonable cause:

(A) how much should the penalty be (up to $10,000 adjusted for inflation); and

(B) can that penalty be imposed on each account or is the penalty restricted to a single FBAR penalty based on a failure to file a single form?

Note that the answer to the “non-willful” vs. “willful” question has a huge bearing on the amount of the penalty that “may” be imposed. The fate of the account holder may be effectively determined at this initial stage of the inquiry. I will explore this more in a subsequent post which discusses Ms. Toth’s meeting with Mr. FBAR.

Note also that these three questions require the analysis of a deceptively large number of legal and factual issues.

What is the FBAR law and where is it actually found?

The Law Of FBAR In Its Most Simple “Form” (pun intended)- A Three Headed Monster

The law of FBAR is composed of three components which are found in three distinct places:

1. The Federal Statue found in Title 31 USC – Sections 5314 and 5321

2. The Treasury Regulation mandated under 31 5314 which directs the Treasury Secretary to create the FBAR rules https://www.law.cornell.edu/cfr/text/31/1010.350

3. The FBAR form itself.

In summary the federal statute (USC 31 5314) directs Treasury to create the reporting rules in the form of a regulation. The Treasury regulation creates the rules (incorporating the instructions on the form). When there is a violation of the rules prescribed in the Treasury Regulation, the civil penalties are determined according to the statute (USC 31 5321). Criminal penalties may also be imposed under USC 31 5322. In other words, the law of FBAR is an unholy alliance of a statute, a regulation and the form where the actual reporting takes place. (This post will focus only on the USC 31 5321 civil FBAR penalty.)

John Richardson – Follow me on Twitter @Expatriationlaw