For over a decade, the Internal Revenue Service and the U.S. Department of Justice have devoted substantial resources to cracking down on taxpayers who fail to disclose their offshore accounts on Reports of Foreign Bank and Financial Accounts (FBARs). Taxpayers who willfully fail to comply with their FBAR reporting obligations are exposed to imprisonment and other criminal sanctions or, if they are fortunate enough to avoid prosecution, a civil penalty equal to 50% of the highest balance of their undisclosed accounts. On the other hand, taxpayers whose failure to report their offshore accounts is “due to negligence, inadvertence, or mistake or … a good faith misunderstanding of the” legal requirements are subject to “nonwillful” penalties of $10,000 per violation. The circuits have, however, split over whether taxpayers are subject to a $10,000 penalty for each unreported account or a single $10,000 penalty per year.

Last year, the U.S. Supreme Court agreed to resolve a split between the U.S. Court of Appeals for the Fifth Circuit, which agreed with the government that the $10,000 penalty applies on a “per-account” basis, and the Ninth Circuit, which adopted the taxpayer-friendly “per-form” approach. See Jeremy H. Temkin, “Penalties Go to the Supreme Court: Dueling Statutory Interpretations,” N.Y.L.J. (July 20, 2022). On Feb. 28, the court issued a 5-4 decision in Bittner v. United States, No. 21-1195, 143 S. Ct. 713, that cut across ideological lines and, in a victory for taxpayers, limited the IRS to a single $10,000 penalty regardless of how many accounts should have been reported in a given year.

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