FBAR Penalties Go to the Supreme Court: Dueling Statutory Interpretations

For more than a decade, the government has pursued taxpayers who failed to report offshore accounts on Reports of Foreign Bank and Financial Accounts (FBARs). Practitioners representing clients caught in the government’s crosshairs have raised a number of legal issues including whether the Required Records Doctrine precludes taxpayers from resisting subpoenas based on the Fifth Amendment privilege against self-incrimination (see Jeremy H. Temkin, Second Circuit Tackles Required Records Exception, N.Y.L.J. (Jan, 15, 2014)); the burden of proof and scienter standard to be applied when the Internal Revenue Service assesses civil willfulness penalties (see Jeremy H. Temkin, Civil FBAR Penalty Litigation: No Reprieve for Taxpayers, N.Y.L.J. (March 18, 2021)); and, most recently, the maximum penalty applicable when a taxpayer’s FBAR violation was not willful (see Jeremy H. Temkin, Non-Willful FBAR Penalties: A (Temporary) Reprieve for Taxpayers?, N.Y.L.J. (May 19, 2021)). While the first issue raised significant constitutional questions and the second subjected taxpayers to potentially draconian financial penalties, the Supreme Court declined to weigh in on either point. See, e.g., In re Special Feb. 2011-1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903 (7th Cir. 2012) (holding Required Records Doctrine precludes Fifth Amendment privilege), cert. denied 133 S. Ct. 2338 (2013); U.S. v. Rum, 995 F.3d 882 (11th Cir. 2021) (holding “willfulness” for FBAR civil penalties includes reckless disregard of a known or obvious risk), cert. denied, 142 S. Ct. 591 (2021).

Last month, however, the court agreed to resolve a split between the U.S. Courts of Appeals for the Fifth and Ninth Circuits over the correct interpretation of 31 U.S.C. §5321(a)(5)(A), which caps the civil penalty applicable to non-willful FBAR violations at $10,000. Specifically, the court granted a writ of certiorari in Bittner v. United States to consider whether the $10,000 cap on penalties for non-willful violations applies on a “per-account” basis (as the Fifth Circuit held in U.S. v. Bittner, 19 F.4th 734 (5th Cir. 2021)), or whether the penalty is capped at $10,000 for each year, regardless of the number of accounts involved (as the Ninth Circuit previously held in U.S. v. Boyd, 991 F.3d 1077 (9th Cir. 2021)).

‘United States v. Boyd’