- Granted the Government summary judgment holding that the summary
judgment facts precluded reasonable cause.
- Granted Kaufman summary judgment holding that the nonwillful
FBAR civil penalty was per annual form rather per account (basically $10,000
max each year for deficiencies or delinquencies on FBARs) rather than $10,000 for each
account that was not or was incorrectly reported on the annual FBAR.
The holding on the nonwillful penalty being per form or per
account is not so straight-forward. The
Courts – only three district court cases — are not in agreement.
See the discussion in the Kaufman opinion. Of the two cases agreeing with the Government
position, the lead on is currently pending after oral argument in the Ninth
Circuit. United States v. Boyd, No. CV
18-803-MWF (JEMx), 2019 WL 1976472 (C.D. Cal. Apr. 23, 2019), appeal argued No.
19-55585 (9th Cir. Sept. 1, 2020). See Two
Cases Sustaining FBAR NonWillful Penalties on Per Unreported Account Basis
(4/26/19), here. The other district
court case holding for the taxpayer that maximum penalty is per form is United
States v. Bittner, 469 F. Supp. 3d 709 (E.D. Tex. 2020), appeal docketed No. 20-40597 (5th Cir. Sept. 11,
2020). See District Court Holds FBAR
Nonwillful Penalty Is Per Form Rather than Per Account (6/30/20), here
So, it appears to me that at this point the issue is not yet
settled and, ultimately, the issue might go either way.
For another treatment of Kaufman, see Robert S. Howitz, IRS Loses Another Non-Willful FBAR Case (Tax Litigator Blog 1/14/21), here.