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“.*
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.
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:
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.