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

The judge hearing this shocking case ruled (in an excellent written decision) that when it comes to @InFBARWeTrust penalties1. Willfulness is a question of fact and 2. The IRS must establish willfulness based on a "preponderance of the evidence." https://t.co/YYOCxFOusX

— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) September 17, 2022

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

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

Why @InFBARWeTrust: "2020 Report of Foreign Bank and Financial Accounts (#FBAR) Report to Congress" – See # of filings and information on # of prosecutions and penalties https://t.co/mLzsCP5ryr pic.twitter.com/8JvOOJxo5b

— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) September 18, 2022

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.

Excellent analysis of relevance to @InFBARWeTrust violations: "Tax Law’s Two Definitions of Willfulness, and Why They are Different" (including different standards for burden of proof – preponderance of evidence vs. beyond reasonable doubt) https://t.co/3bmuKSMNB8

— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) September 17, 2022

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