Case: 20-40597 Document: 00516110544 Page: 1 Date Filed: 11/30/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 30, 2021 No. 20-40597 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee/Cross-Appellant, versus Alexandru Bittner, Defendant—Appellant/Cross-Appellee. Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:19-CV-415 Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: Alexandru Bittner non-willfully failed to report his interests in foreign bank accounts on annual FBAR forms, as required by the Bank Secrecy Act of 1970 (BSA) and regulations thereunder. See 31 U.S.C. § 5314; 31 C.F.R. §§ 1010.306, 1010.350. The government assessed $2.72 million in civil penalties against him—$10,000 for each unreported account each year from 2007 to 2011. The district court found Bittner liable and denied his reasonable-cause defense. But it reduced the assessment to $50,000, holding that the $10,000 maximum penalty attaches to each failure to file an annual FBAR, not to each failure to report an account. Case: 20-40597 Document: 00516110544 Page: 2 Date Filed: 11/30/2021 No. 20-40597 We affirm the denial of Bittner’s reasonable-cause defense but reverse with respect to application of the $10,000 penalty. We hold that each failure to report a qualifying foreign account constitutes a separate reporting violation subject to penalty. The penalty therefore applies on a per-account, not a per-form, basis. On this point, we part ways with a recent Ninth Circuit panel, which split on this issue. See United States v. Boyd, 991 F.3d 1077, 1080–86 (9th Cir. 2021) (adopting per-form interpretation). But see id. at 1086–91 (Ikuta, J., dissenting) (taking per-account view). 1 Accordingly, we affirm in part, reverse in part, vacate, and remand. I. A. In 1970, Congress enacted the BSA “to require certain reports or records where such reports or records have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.” Currency and Foreign Transactions Reporting Act of 1970, Pub. L. No. 91-508, § 202, 84 Stat. 1114 (codified as amended at 31 U.S.C. § 5311). A primary purpose of the BSA was to curb the “serious and widespread use” of foreign financial accounts to evade taxes. Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 27 (1974). 1 District courts have taken diverging views on this issue. Compare United States v. Giraldi, No. 20-2830 (SDW) (LDW), 2021 WL 1016215 (D.N.J. Mar. 16, 2021) (taking per- form view), and United States v. Kaufman, No. 3:18-CV-00787 (KAD), 2021 WL 83478 (D. Conn. Jan. 11, 2021) (same), with United States v. Solomon, No. 9:20-82236-CIV, 2021 WL 5001911 (S.D. Fla. Oct. 27, 2021) (taking per-account view), and United States v. Stromme, No. 1:20-cv-24800-UU (S.D. Fla. Jan. 25, 2021) (same on default judgment). The Fourth Circuit has suggested it would take a per-form view. See United States v. Horowitz, 978 F.3d 80, 81 (4th Cir. 2020) (observing but not holding, in a case concerning willful violations, that “[a]ny person who fails to file an …
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