The Supreme Court Deals IRS a Losing Hand in FBAR Non-Willful Penalty Case by ROBERT HORWITZ
Posted by Hochman Salkin Toscher Perez P.C. 
Posted on Thursday, March 16, 2023
On February 28, 2023, the Supreme Court issued its opinion in Bittner v. United States, ___ U.S. ___, 143 S.Ct. 713, 2023 WL 2247233, holding that the non-willful FBAR penalty is applied per annual report and not per account. For the past few years, the IRS has taken the position that it could impose a separate $10,000 non-willful FBAR penalty based on the number of foreign accounts a U.S. person failed to properly report. The Ninth Circuit rejected the Government’s argument and held the maximum penalty per year is $10,000, United States v. Boyd, 991 F. 3d 1077 (2021), while the Fifth Circuit held the $10,000 penalty could be imposed per account. United States v. Bittner, 19 F. 4th 734 (2021).
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