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    Supreme Court Resolves Long-standing Issue Over FBAR Penalties

    A recent decision by the Supreme Court has greatly reduced the penalty exposure for US taxpayers holding foreign bank accounts. In Bittner v. US, the High Court held that the $10,000 maximum penalty for the non-willful failure to file a Report of Foreign Bank and Financial Accounts (FBAR) should be imposed on a per-report, not a per-account, basis. These reports are used by the government to identify unreported income that may be subject to U.S. taxation. The lower court, the 5th Circuit Court of Appeals, had held that the $10,000 penalty could be calculated based on the number of bank accounts covered by each required report, which resulted in multi-million penalty for the taxpayer in the case, Alexandru Bittner.

    Taxpayer Faced $2.72 Million Penalty

    Bittner, a dual citizen of Romania and the US, was living in Romania and earning substantial income from investments that he held in foreign bank accounts up until he returned to the US in 2011. When he learned of his FBAR filing obligation, he submitted the required annual reports covering five years, 2007 through 2011. The US government found Bittner’s late-filed reports deficient because the reports did not include information on all Bittner’s foreign accounts. Taxpayers are required to report all account for which they have either signatory authority or a qualifying interest.

    Bittner filed corrected FBARs providing information for each of his accounts, a total of 272 accounts for the 5 years. The government calculated the penalty due at $2.72 million, computed as $10,000 for each account covered by the 5 FBAR reports. Challenging that penalty, Bittner argued that the maximum penalty for non-willful violations should be $10,000 per report, not $10,000 per account. In reversing the 5th Circuit, the Supreme Court agreed with Bittner in a 5-4 decision. The line-up in the Justices was interesting, with Judge Jackson joining in the conservative majority and Judge Barrett filing a dissent.

    Why Court Stepped In

    The Supreme Court took the case because there was a split in the circuit courts of appeals. The 5th Circuit allowed the $10,000 per account penalty. However, the 9th Circuit, in U.S. v. Boyd, held in 2021 that the IRS can impose only one $10,000 penalty per required FBAR report. One reason the Supreme Court agrees to hear cases is if the circuit courts around the country are in disagreement about an important issue, like here. The High Court then steps in to resolve the issue and create a uniform rule throughout the US.

    FBAR Filing Requirements and Penalty Rules Going Forward

    The Supreme Court’s decision in Bittner is an important victory for high-wealth taxpayers, dual citizens and any taxpayer who has a US filing obligation and holds foreign accounts. Imposing a $10,000 penalty per account, especially in cases where the taxpayer did not intend to hide anything, seemed punitive and could be excessive.

    Even with this favorable opinion, taxpayers should be mindful of their FBAR filing obligations. Taxpayers must file if:

    • foreign accounts in the aggregate exceed $10,000 any time during the year
    • the taxpayer holds either a qualifying interest in the account or signatory authority over the account
    • FinCEN Form 114 forms are required
    • the form is due on April 15th

    If the reports are not filed or are deficient, the IRS can impose one of two civil penalties on taxpayers who fail to file their FBARS. The first penalty is for non-willfulness, where a taxpayer does not intend to slip up. That penalty is up to $10,000. The higher willfulness penalty may be imposed on a taxpayer that “willfully fails to file” an FBAR. That penalty is the greater of $100,000 or 50% of the balance in the account at the time of the violation. It is important to note that it is possible for civil penalties to exceed the balance in the foreign financial account, and criminal penalties can be imposed in addition to civil penalties. Criminal penalties are only imposed for willful failure to file FBARs and can be up to $500,000 and 10 years in prison for multiple law violations.

    Consult your Frazier & Deeter tax advisor to evaluate your foreign holdings and determine if you are in compliance with the US foreign financial account reporting laws:

    Dave Kim, Tax Partner & National Practice Leader, International Tax | dave.kim@frazierdeeter.com

    Mike Whitacre, Tax Partner | mike.whitacre@frazierdeeter.com

    David Patton, Tax Partner | david.patton@frazierdeeter.com

    Malcolm Joy, Lead Partner, United Kingdom | malcolm.joy@frazierdeeter.com

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