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DC Hold That Limit on FBAR Penalty is an Annual Limit

A district court has held that the monetary limit on the penalty for willfully failing to file a Report of Foreign Bank and Foreign Accounts (FBAR) is an annual one. The court found that, in reaching this conclusion, it was not required to consider the ongoing split of court opinions in previous cases about whether the limit on the penalty is defined by statute or reg.

 There is now disagreement amongst district courts as to whether the 2004 statutory amendment invalidated the $100,000 cap established by
31 C.F.R 1010.820. Among the courts that have held that the statutory amendment merely increased the maximum but did not require IRS to in any case impose the maximum, and thus held that the limit contained in the reg. was the maximum penalty that IRS could impose, were Colliot(DC TX 2018) 121 AFTR 2d 2018-1834, and Wadhan, (DC CO 2018) 122 AFTR 2d 2018-5208. However, there is also Norman, Ct. Fed. Cl. Dkt 15-872, where the Court held that the taxpayer Norman was liable for the FBAR willful penalty and this Court rejected the Colliot holding that the FBAR willful penalty was limited to a maximum of $100,000, because the regulations had not been changed to reflect the statutory amendment increasing the maximum FBAR willful penalty. 

The taxpayer, Mr. Shinday had foreign bank accounts for which he was required to file an FBAR, and for which he didn't file an FBAR, for 2005 through 2011. The balances in those accounts, for 2005 through 2011, varied from approximately $380,000 to $1,031,548.

IRS assessed willful FBAR penalties against Shinday for the tax years 2007 to 2011. The aggregate amount of these penalties was $257,888, which represented 25% of the combined 2006 year-end balance of Shinday's foreign bank accounts, which equaled $1,031,548.  This total was then divided equally, in order to apply penalties equally for each year starting in 2007 and ending in 2011.

Shinday argued that IRS's claim to reduce Shinday's penalty assessments to judgment must be dismissed because IRS assessed penalties which exceeded the $100,000 penalty cap established by 
31 C.F.R. 1010.820.  Relying on Colliot and Wahdan, Shinday contended that 31 C.F.R. 1010.820's cap controls because it is consistent with 31 U.S.C. 5321, the statute under which it was issued.
Court OKs IRS calculation. The court approved IRS's calculation.

The court said that neither of the cases cited by Shinday supported his position. In Colliot, the court found that IRS could not assess FBAR penalties exceeding the $100,000 cap promulgated under
31 C.F.R. 1010.820, but that court only considered FBAR penalties that exceeded $100,000 in a given year. Similarly, the court in Wahdan concluded that IRS "is not empowered to impose yearly penalties in excess of $100,000 per account."

The court here said that the facts of Colliot and Wahdan were thus inapposite to this case because the five penalties assessed against Shinday were individually all less than $100,000. Although in the aggregate the penalties against Shinday totaled $257,888, the yearly, individual penalties were each approximately $51,578. Each time Shinday willfully failed to timely file an FBAR, IRS assessed a penalty. The penalties were imposed for separate, if successive, alleged FBAR violations resulting from Shinday' failure to file FBAR reports in 2007, 2008, 2009, 2010, and 2011.

Finally, the court noted that, in arriving at its decision, it did not need to reach the issue of whether
31 USC 5321 invalidates the Department of Treasury's implementing regs., because there was no year in which Shinday was penalized more than $100,000. (Shinday DC CA 12/4/2018 122 AFTR 2d ¶ 2018-5483).

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Move Over Lebron – IRS Launches Instagram Account to Help Taxpayers

According to IR-2018-237 on November 30, 2018 the Internal Revenue Service announced its debut on Instagram, adding this platform to its social media portfolio.

The IRSNews account (https://www.instagram.com/irsnews) will provide taxpayers the latest information on a variety of topics as taxpayers face numerous tax law changes for the upcoming 2019 filing season related to the Tax Cuts and Jobs Act. The IRS Instagram account will share taxpayer-friendly information to help people Get Ready for the upcoming tax season. And it will provide the latest tax scam information to help support the Security Summit initiative, a joint effort between the IRS, states and the nation’s tax industry to combat tax-related identity theft.

“The addition of Instagram is another step for the IRS to share information more widely and reach additional taxpayers,” said IRS Commissioner Chuck Rettig. “This platform will help make people aware of important options they have during the upcoming filing season as well as other tax information they might not be aware. The IRS will continue to work with and help taxpayers in as many ways possible.”

Research shows that more than 70 percent of U.S. young adults between 18 and 24 are active on Instagram. The IRS plans to use Instagram to better serve this segment of the population, sharing content on tax topics that affect all taxpayers.

The IRS Instagram account will also periodically share information in Spanish and other languages.

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SC Will Not Review Start Date of 30 Day Levy Notice

The Supreme Court has declined to review the DC Circuit's affirmance of a Tax Court decision that, for purposes of determining whether IRS has met the requirement in Code Sec. 6330(a) that it notify the taxpayer by mail no less than 30 days before the date of a levy that the taxpayer has the right to a collection due process (CDP) hearing, the 30 days is measured from the mailing date of the IRS notice.

IRS generally may not levy against a person's property or right to property unless it gives the person a notification in writing of his right to, and the opportunity for, a pre-levy CDP hearing with IRS. (Code Sec. 6330(a)(1), Reg. § 301.6330-1(a)(1)).

One way in which that notice may be made is by sending the notice by certified or registered mail at least 30 days before the day of the first levy with respect to the unpaid tax for the tax period. Hand delivery within that same time frame is also allowed. (Code Sec. 6330(a)(2)).

In an effort to collect the taxpayer's Mr. Weiss's unpaid tax liabilities by levy, IRS attempted to hand-deliver the notice at Weiss's residence during a field call on February 11 but, deterred by Weiss's dog, was unsuccessful.

Two days later, IRS initiated the mailing of the notice by certified mail to Weiss's last known address. IRS did not generate a new levy notice dated February 13 but rather enclosed in the envelope the original notice dated February 11.

The taxpayer challenged the timeliness of the levy notice in the Tax Court. The Court held that the mailing date, February 13, was the relevant date from which the 30-day period was measured.

The Circuit Court for the District of Columbia, affirming the Tax Court, has held that the mailing date, February 13, controlled the issue. The Court reasoned that the statute looks to the date the notice is sent; in the context of a mailed notice, "sent" means "mailed."

On Dec. 3, 2018, the Supreme Court refused to review the DC Circuit's decision. Accordingly, that decision is now final.

Have an IRS Tax Problem? 
Contact the Tax Lawyers at 
Marini & Associates, P.A. 
for a FREE Tax HELP contact us at:

Toll Free at 888-8TaxAid (888) 882-9243


Read more at: Tax Times blog