Facts: In 2006, Taxpayers opened an account at UBS. Taxpayer-Wife met with UBS representatives a couple times a year. The account was held in the name of Towers International, Inc., but UBS had a form giving Taxpayer-Wife power of attorney over the account. Taxpayer-Wife personally prepared the Taxpayers’ 2003 through 2007 tax returns. She disclosed a financial interest in another foreign account, but not the UBS account. In 2009, when UBS disclosed her account to the IRS, Taxpayer-Wife filed a document with the IRS disclosing the UBS account and listing its value as $3.8 million. The IRS obtained a default judgment against Taxpayer-Husband’s estate for $857,625 and sought payment from Taxpayer-Wife for her willful FBAR penalty.
Holding: willful blindness or reckless disregard satisfies the required mental state, and Taxpayer certainly acted with at least that degree of intent. Taxpayer filed previous returns that mentioned foreign accounts, so she clearly knew of the requirement. In addition, she sent emails to her accountant that display a consciousness of guilt, including references to the IRS being “so far behind us with the UBS junk, that they won't catch up with [her husband Burt] in his lifetime and I'll be on my way to Tahiti.”
U.S. v. Markus, Case No. 1:16-cv-02133 (D.N.J. 2017)Facts: Taxpayer was a U.S. citizen born in Egypt. Taxpayer worked for the Army Corps of Engineers as a project engineer. He accepted bribes and kickbacks in exchange for confidential bid information for an oil pipeline project. Taxpayer deposited bribes in bank accounts in Egypt and Jordan, and subsequently transferred the funds to his personal accounts in the U.S. In 2008, Taxpayer filed an FBAR reporting only one Jordanian account. In 2010, Taxpayer’s home was searched pursuant to a warrant, at which time investigators located and seized bank records, notes, statements, emails, and other documents. Taxpayer was indicted for wire fraud, money laundering, and willfully failing to file an FBAR. The maximum aggregate balance of his foreign accounts was about $1,100,000. The IRS assessed a willful FBAR penalty against Taxpayer for 2007, 2008, and 2009 totaling $842,014.
Holding: while Taxpayer did not confess to willfully failing to file an FBAR, his involvement in a much larger scheme to defraud the U.S. puts to rest any doubt that he willfully failed to file an FBAR.
Toth v. U.S., Case No. 1:15-cv-13367 (D. Mass. 2015)Facts: In 1999, Taxpayer, who was a U.S. citizen, opened a bank account at UBS AG in Switzerland. Taxpayer’s father and brother advised her not to tell anyone about the account. Taxpayer frequently transferred funds from her UBS account to her bank account in the U.S. In 2001, the U.S. government entered into an agreement with UBS that required UBS account holders to disclose their identities by completing a W-9 form or sell their U.S. securities. Taxpayer did not complete a W-9 form. In 2004, UBS told Taxpayer it would no longer transfer money to her U.S. bank account without listing the ordering party, so Taxpayer told UBS she no longer wanted to make transfers to her U.S. bank account. In 2007, the balance of the account was $4,347,407. Taxpayer prepared her own federal income tax return for tax year 2007. She did not disclose her interest in a foreign bank account on Schedule B nor did she file an FBAR. In 2008, the IRS audited Taxpayer’s 2007 tax return and assessed a willful FBAR penalty in the amount of $2,173,703.
Holding: Taxpayer’s willfulness in failing to file a 2007 FBAR can be inferred from her conscious effort to avoid learning about reporting requirements. She took deliberate steps to maintain the secrecy of the account, in spite of opportunities for disclosure, which evidences willful conduct meant to conceal or mislead sources of income. In addition, Taxpayer had access to bank records and statements, but did not question why UBS was not deducting funds from her account to pay U.S. taxes, evidencing her reckless disregard for the risks of not investigating her tax obligations with respect to her foreign bank account.
Pomerantz v. U.S., Case No. 2:16-CV-00689 (W.D. Wash. 2017)Facts: Taxpayer was a dual citizen of the U.S. and Canada. Taxpayer owned two checking accounts at CIBC bank in Canada. In 2003, Taxpayer established a corporation in the Turks and Caicos Islands. Taxpayer opened two accounts with Sal Oppenheim JR & CIE AG Switzerland and named them after his foreign corporation. Taxpayer also opened an investment account with Sal Oppenheim and named the account after his foreign corporation. In 2007, Taxpayer opened two additional accounts with Sal Oppenheim and named them after his foreign corporation. In 2009, Taxpayer moved to Canada. In 2010, the IRS began an income tax examination of Taxpayer. For tax years 2001, 2002, and 2005, Taxpayer timely filed FBARs reporting only his interest in the CIBC accounts. The high balance figures Taxpayer reported were also inaccurate. According to the IRS, the high balance figures for 2007 through 2009 were between $450,000 and $975,000. Accordingly, the IRS assessed willful FBAR penalties against Taxpayer in the amount of $400,000, $225,000, and $150,000 for tax years 2007, 2008, and 2009, respectively.
Outcome: The parties entered a stipulation whereby Taxpayer agreed to pay the willful FBAR penalties.
U.S. v. Gentges, Case No. 7:18-cv-07910 (S.D.N.Y. 2018)Facts: Taxpayer opened a bank account at a Swiss bank, which was subsequently acquired by UBS. In 2001, Taxpayer filled out a UBS form related to this account, which was a numbered account. He signed an instruction to UBS that stated: “I would like to avoid disclosure of my identity to the U.S. Internal Revenue Service under the new tax regulations. To this end, I declare that I expressly agree that my account shall be frozen for all new investments in U.S. securities.” Taxpayer also paid for hold mail service. Shortly thereafter, he opened another numbered account at UBS. In 2003, Taxpayer created various trusts for estate planning purposes and transferred ownership of his real estate and U.S. bank accounts. Taxpayer, however, did not transfer his UBS accounts into these trusts. He also never told his tax preparer about his foreign accounts. In 2008, UBS closed Taxpayer’s accounts due to the IRS investigation. Taxpayer then opened another account at a different Swiss bank and transferred the UBS funds into this new account. He repeated this process a couple of times because more and more Swiss banks became unwilling to do business with Americans. In 2007, Taxpayer’s Swiss accounts held a balance of about $2 million. In 2010, Taxpayer applied to make a voluntary disclosure to the IRS. In 2013, he opted out of the voluntary disclosure program and was subsequently audited. The IRS assessed a penalty of $903,853 for the willful failure to file an FBAR.
Holding: Taxpayer recklessly disregarded the FBAR reporting obligation by failing to carefully review his 2007 income tax return and erroneously representing that he had no financial interest in foreign accounts. (The Court explained the IRS cannot use a December 2007 bank statement to estimate the balance for 2008. Case was remanded to the IRS for a proper determination of the penalty.)
U.S. v. Bernstein, Case No. 1:19-cv-02912 (E.D.N.Y. 2019)Facts: In 2002, Taxpayers opened an account at UBS in Switzerland in the name of an undisclosed company. In 2004, Taxpayers opened another UBS account. The two accounts held about $1 million together. In 2005, the funds in one account were transferred to the other. Taxpayers had a financial advisor who traveled with them to Switzerland to open the accounts. Taxpayers and the advisor told UBS to not contact them or send them bank statements. In each tax year from 2002 through 2009, Taxpayers checked the box “no” on Schedule B stating they do not have an interest in any foreign financial accounts. Taxpayers did not tell their accountant about the Swiss accounts. Two days after the public disclosure of the UBS deferred prosecution agreement with the U.S. government in 2009, Taxpayers opened another Swiss account at another Swiss bank and moved the funds in their UBS account to their new Swiss account. Subsequently, the U.S. government requested account information from UBS of its U.S. customers. UBS then sent Taxpayers a letter advising them that the U.S. government was requesting their information, and that they should consult an attorney and/or participate in the IRS’s voluntary disclosure program. Taxpayers consulted a U.S. tax attorney who told them it was nothing serious. Their financial advisor also contacted a Swiss attorney who assured them that their information had not been turned over to the IRS. In 2011, the IRS audited Taxpayers’ 2007 tax return. Taxpayers hired a white-collar criminal attorney who advised Taxpayers to file a 2010 FBAR invoking their privilege against self-incrimination. The attorney also advised them to do the same on their 2010 tax return and Schedule B. In 2017, the IRS assessed a penalty against Taxpayers of $262,288 per person for the 2010 tax year for a total of $524,577.
Holding: the undisputed facts show deliberate decisions over the course of nearly a decade beginning with parking funds overseas at UBS to avoid disclosing them; not telling their accountant about these bank accounts to avoid having to disclose them; falsely answering the question every year for seven years in Schedule B of whether they had off-shore accounts; moving their accounts to a private bank days two days after learning of the UBS-DPA; choosing not to participate in the voluntary disclosure program but instead taking their chances of civil and criminal liability; and then, finally, in 2010, making a limited disclosure that still did not satisfy the requirements of the Bank Secrecy Act but hopefully minimized the impact of their nine year plan of concealment.
U.S. v. Bryan Keith Hawker, Case No. 2:19-cv-00836 (D.Utah 2019)Facts: Taxpayer was an experienced businessman who helped several private companies go public. In 2012, Taxpayer opened a foreign investment account with Seven Mile Securities in the Cayman Islands under the name BK Consulting Inc. At the time, Taxpayer was the sole shareholder of BK Consulting Inc., which was located in the Cayman Islands. Taxpayer deposited 7,000,000 shares of another company in the account. In August 2012, about 48,000 shares were sold at $0.3813. Taxpayer did not report the sale on his tax returns. The IRS audited his tax years 2008 through 2013 and assessed a willful FBAR penalty of $100,000. When Taxpayer refused to pay, the IRS sued to collect.
Holding: the undisputed facts, as established by Taxpayer’s failure to respond to the IRS’ request for admissions, established Taxpayer’s willful failure to file an FBAR.
U.S. v. Garrity, Case No. 3:15-cv-00243 (D. Conn. 2019)Facts: In 1989, Taxpayer opened an account in Liechtenstein under the name of a Liechtenstein trust of which he was the primary beneficiary. Taxpayer engaged a Liechtenstein company to create a British Virgin Islands company (“BVI company”). Taxpayer then directed the BVI company to invoice his domestic U.S. company for “inspection services.” The BVI company remitted the funds to the bank account of Taxpayer’s Liechtenstein trust. In 2008, the IRS audited Taxpayer for the 2005 taxable year and investigated matters related to the foreign account. In 2009, after Taxpayer’s death, Taxpayer’s wife filed FBARs for tax years 2003 through 2008. The maximum amount held in the account for the 2005 tax year was $1.9 million. The IRS assessed a willful FBAR penalty of $936,691.
Holding: A jury found that Taxpayer had willfully failed to file an FBAR in 2005. Taxpayer filed a motion to alter or reduce judgment. The Court denied Taxpayer’s motion for the following reasons:
Facts: Taxpayer, a school teacher, opened a foreign bank account with UBS in 1999. She opened a numbered account and used hold mail service. Taxpayer was actively involved in managing and controlling her account. She instructed UBS how to invest her funds and signed a document prohibiting UBS from investing in U.S. securities on her behalf, which helped prevent disclosure of her account to the IRS. She was displeased when she learned that UBS was going to work with the U.S. government to identify the names of U.S. clients who may have engaged in tax fraud. Before UBS publicly announced its new policy, Taxpayer closed her account and transferred her funds to another foreign bank. From 2001 to 2008, her account balance ranged between approximately $1.5 million and $2.5 million. In 2008, Taxpayer hired an accountant who filed amended tax returns and late FBARs. The IRS then examined Taxpayer’s tax returns. During the audit, Taxpayer made many false statements to the IRS. The IRS assessed a willful FBAR penalty of $803,530 against Taxpayer.
Holding: Taxpayer willfully failed to file an FBAR as she took many affirmative acts to keep the account confidential from the government.
U.S. v. Flume, 390 F.Supp.3d 847 (S.D. Tex. 2019)Facts: Taxpayer was a U.S. citizen and savvy businessman who lived and worked in Mexico since 1990. To manage his real estate projects in Mexico, Taxpayer incorporated Wilshire Holdings in the Bahamas in 2000. Wilshire Holdings was reincorporated in Belize in 2001 because the Bahamas were becoming more restrictive. In 2005, Taxpayer opened an account at Swiss UBS in Wilshire’s name. Taxpayer waived the right to invest in U.S. securities to avoid disclosure to the IRS. In 2008, when Taxpayer became aware that the IRS was investigating UBS and its American clients, he moved all assets from his UBS account to his personal bank account in Mexico, which had been properly disclosed to the IRS. In 2010, Taxpayer filed delinquent FBARs for tax years 2006 through 2009, underrepresenting the value of his UBS account. In 2007 and 2008, the UBS Account had an average monthly balance of $899,342.02 and $718,811.24, respectively. After the IRS received Taxpayer’s records from UBS, it determined Taxpayer had underreported his income and had failed to file Forms 5471 and FBARs for 2006 through 2009. The IRS assessed an FBAR penalty of $456,509. Taxpayer’s tax preparers testified that Taxpayer never disclosed the UBS account to them and they never saw Wilshire’s financial statements. They also testified that they sent all their clients a reminder that they must report their foreign financial accounts each year. They knew Taxpayer had an account in Mexico so they wrote “Mexico” on Schedule B. They did not file FBARs for Taxpayer because they thought Taxpayer wanted to file them himself and forego the extra charge.
Holding: Taxpayer willfully failed to file 2007 and 2008 FBARs as evidenced by his disingenuous testimony, his sophisticated financial structure, disclosure of his Mexican bank account, and his actions after finding out about the IRS investigation of UBS.
U.S. v. Ott, 441 F.Supp.3d 521 (E.D. Mich. 2020)Facts: Taxpayer was a 56 year old U.S. citizen. He graduated high school and had some college education. He worked as a carpenter. In 1993, Taxpayer opened two brokerage accounts in Canada and deposited $50,000 in the accounts. Over the years, he made additional deposits totaling $72,000 and moved his funds to different Canadian financial institutions. In 2006, when Taxpayer opened two accounts at Octagon Capital in Canada, he used his sister’s home address in Canada as the mailing address for his accounts. Taxpayer’s sister forwarded all mail regarding his Canadian accounts to him. Taxpayer also had regular contact with his broker. The highest aggregate balance of the accounts was $1,903,477, $770,000, and $1,766,129 in 2007, 2008, and 2009, respectively. In 2010, Taxpayer disclosed his foreign accounts to his accountant, who referred Taxpayer to a tax attorney. On the advice of the tax attorney, Taxpayer participated in the 2011 OVDI. Subsequently, the IRS offered participants an option to opt-out of the program if their conduct was less than willful. Taxpayer opted out of the program, which meant he would be subject to a civil tax audit by the IRS. After auditing Taxpayer’s 2003 through 2009 income tax returns, the IRS assessed willful FBAR penalties totaling $988,245 for 2007, 2008, and 2009.
Holding: Taxpayer had constructive knowledge of his FBAR reporting requirements by signing his federal tax returns, supporting a finding of willfulness. Taxpayer signed a return each year, under penalty of perjury—regardless of whether he actually read the return—certifying that he did not have an interest in foreign accounts. In addition, Taxpayer’s failure to disclose hundreds of thousands of dollars in a foreign Canadian account to his tax preparer demonstrates that he should have known there was a risk of noncompliance, and yet he failed to take any investigative or corrective action.
United States v. Horowitz, Case No. 19-1280 (4th Cir. Oct. 20, 2020)Facts: Taxpayers, Peter and Susan Horowitz, were two highly educated professionals who had undisclosed Swiss bank accounts that were opened during their time living in Saudi Arabia. Taxpayers moved from the U.S. to Saudi Arabia in the 1980s for Peter’s job. They filed U.S. income tax returns and paid U.S. taxes on income earned in Saudi Arabia with the help of their accountant in the U.S. Taxpayers initially owned Saudi Arabian bank accounts; however, when a Swiss banker contacted Peter about opening a Swiss account, Peter decided to do so because the Saudi Arabian banks did not pay interest. Their Swiss bank account was earning interest income but Taxpayers did not disclose the account to their accountant. They explained that they had talked to their friends in Saudi Arabia and learned that they did not have to pay taxes in the U.S. on interest income from the Swiss account. When Taxpayers moved back to the U.S., they stopped receiving bank statements from the Swiss bank because they never updated their address with the bank. Peter still called the bank every year or two to check on the account. In 2008, Peter learned the Swiss bank planned to close the accounts of all Americans. Subsequently, Peter traveled to Switzerland to close the account, which now had a balance of $2 million. Peter opened another account with a different Swiss bank and transferred the money to the new account. This new account was a numbered account, which means a designated number would replace the account holder’s name on any correspondence. Peter also paid for hold mail service asking the bank to keep any correspondence addressed to Taxpayers. A year later, Taxpayers decided to enter the OVDP. After having filed amended tax returns and paid back taxes, Taxpayers opted out of the OVDP in 2012. The IRS determined Taxpayers had willfully failed to file FBARs and assessed a penalty of close to $750,000.
Holding: Taxpayers should have known that they were not satisfying their FBAR filing requirement and that they could have found out for certain very easily. The Court explained it was reckless for Peter to provide his accountant interest income from their domestic bank accounts and foreign income earned in Saudi Arabia but not even disclose the Swiss bank account to their accountant. The Court further explained that Form 1040 specifically asks filers if they had a foreign bank account, and each tax year, Taxpayers “signed them knowing that they were representing to the IRS, under the penalties of perjury, that the returns were accurate.”
Bedrosian v. U.S., CIVIL ACTION NO. 15-5853 (E.D. Pa. Dec. 4, 2020)Facts: Taxpayer was a successful and financially literate businessman. In 1973, he opened a Swiss bank account in order to have access to funds while traveling abroad for his job. Taxpayer did not actively manage the account, but was kept informed of its activities mostly during his annual meetings with the Swiss bank representatives. He also used hold mail service. At some point, the Swiss account was split into two separate accounts. Taxpayer told his accountant about his foreign accounts in the mid-1990s for the first time. His accountant advised him that he had been breaking the law every year that he did not report the accounts on his tax return and he should take no action because he cannot unbreak the law. In 2007, Taxpayer had one account holding assets of approximately $240,000 and another with approximately $2.3 million in 2007. In 2008, Taxpayer’s new accountant filed his 2007 tax return disclosing his interest in his foreign bank account with the lower balance and filed an FBAR for the first time. In 2011, the IRS audited Taxpayer and assessed a willful FBAR penalty of $975,789.17.
Holding: Taxpayer had reason to know of his second overseas account and that he did not disclose it. Even if Taxpayer did not know that there were two accounts, the stated value in the filings should have prompted him to investigate further, which he could have done easily by contacting the bank. Further, based on Third and Fourth Circuit precedent, claiming to not have reviewed the form does not negate recklessness.
U.S. v. Schwarzbaum, Case No. 18-cv-81147 (S.D. Fla. 2020)Facts: Taxpayer was born and raised in Germany. His father was a very successful businessman who frequently gifted him money. In 2000, Taxpayer became a U.S. citizen. Taxpayer’s father in Germany gifted him about $150,000 each year for many years. In 2001, Taxpayer’s father signed over one of his Swiss accounts to Taxpayer. The account had about $3,000,000 in it. Taxpayer told his CPA about this gift and that he had been living off his father’s gifts. His CPA explained there were no reporting requirements because the assets were outside the U.S.. For tax year 2006, he switched to a different CPA who also told Taxpayer gifts from foreign persons are not reportable. Taxpayer explained to this new CPA that his main residence was in Costa Rica and that he had an interest in one Costa Rican account. Taxpayer, however, did not tell his CPA about his 11 Swiss bank accounts (some of which he inherited after his father’s death in 2009 and others from when he lived in Europe) because there was no connection to the U.S. His CPA disclosed one Costa Rican account on Taxpayer’s 2006 Schedule B and FBAR. In 2009, Taxpayer received a letter from UBS informing him about the IRS treaty request and suggested he consult a U.S. tax professional. Taxpayer entered into OVDI and ended up opting out, which meant he would be subject to an ordinary audit. During the examination, the IRS determined that Taxpayer’s FBAR violations for 2006 through 2009 were willful and assessed a willful FBAR penalty of $13,729,591. In 2007, Taxpayer’s maximum aggregate balance of foreign accounts was $27,612,445. For tax year 2019, Taxpayer reported to the IRS that he had more than $49 million in three Swiss banks.
Holding: Taxpayer’s failure to file an FBAR for tax year 2006 was not willful; however, his failure to file an FBAR for tax years 2007 through 2009 was willful. In 2006, Taxpayer relied on his CPA’s advice that accounts without a U.S. connection do not need to be disclosed. Bank statements from 2006 did not show any transfers to or from the U.S. to or from an undisclosed account abroad supporting Taxpayer’s belief. Therefore, the FBAR penalty is reduced to $12,555,813. The Court further explained that after 2006, Taxpayer could no longer reasonably rely on such advice. He decided to self-prepare his 2007 and 2009 FBARs, and at least for 2007, he reviewed the instructions. As such, by tax year 2007, Taxpayer was aware, or should have been aware, of the FBAR requirements.
Taxpayer appealed and the IRS filed a Motion to Repatriate Foreign Assets so that it can collect the judgment. On June 30, 2021, a Florida magistrate judge recommended that Taxpayer be ordered to repatriate $18,227,465.89 in addition to any additional post-judgment interest accrued since May 31, 2021.
U.S. v. Hidy, 471 F.Supp.3d 927 (D. Neb. 2020)Facts: Taxpayer-Husband was a pilot for an international freight company. Taxpayer-Wife was a nurse. In 2000, Husband accepted a position that required relocating to the UK. Wife joined Husband with their kids in 2001. Subsequently, Taxpayers moved to the Netherlands. In 2009, Wife and kids moved back to Nebraska. Husband remained in the Netherlands until 2012. Husband opened his first foreign bank account in the UK in 2000 for his wages. Over the years, Taxpayers opened several other foreign accounts at banks in the UK, Isle of Man, and Guernsey. Wife prepared Taxpayers’ returns. They never consulted a professional tax preparer. Wife relied on the IRS instructions and successfully claimed the foreign earned income exclusion, tax credits for residential-energy efficiency and deductions for moving expenses and unreimbursed business expenses. On Schedule B, Taxpayers always marked the question on Line 7a, “No,” denying having an interest in any foreign bank accounts. In 2015, Taxpayers were audited by the IRS. The IRS assessed $160,000 of willful FBAR penalties against Taxpayers.
Holding: Taxpayers’ failure to file FBARs was willful. They consciously deposited and actively managed money in their foreign bank accounts. Line 7a on Schedule B and the accompanying instructions notified Taxpayers that they had a duty to report their interests in their foreign bank accounts to the IRS.
Zimmerman v. U.S., Case No. 2:19-cv-04912 (C.D. Cal. 2020)Facts: In 1994, Taxpayers deposited about $300,000 in an account at Bank Leumi. In 2006, 2007, and 2009, Taxpayers filed FBARs for years 2004, 2006, and 2008, respectively, in which they reported the Leumi account. The Bank Leumi account was closed in 2009. Also in 1994, Taxpayers established a foundation in Switzerland which maintained at least one foreign bank account at BSI Bank. The account was a numbered account and Taxpayers used hold mail service. Taxpayers did not disclose the BSI account to the IRS. In 2010, the foundation was dissolved and the account closed. The maximum value of the Swiss account was $5,786,949. Taxpayers did not file an FBAR for 2010. Taxpayers prepared their own returns for 2010. Taxpayers said they had no foreign bank accounts on Schedule B. In June 2017, the IRS assessed an FBAR penalty of $200,000 against Taxpayers.
Holding: evidence here establishes, at a minimum, recklessness, and therefore willfulness. For one, Taxpayers controlled the BSI Account. They also knew about the FBAR filing requirement because they filed FBARs in 2006, 2007 and 2009 for the Leumi Account. Further, a BSI Account statement, dated January 20, 2010, reflects that the account contained $5,786,949 until January 12, 2010. These facts establish that, at the least, the Taxpayers ought to have known there was a risk the FBAR filing requirement was not being met, and they were in a position to easily determine whether it would be.
Table of FBAR Cases