Skip to Main Content

Tax Notes Quotes Zhanna Ziering on Recent Ninth Circuit Decision on FBAR Penalties

March 25, 2021, Tax Notes

The Ninth Circuit has held that non-willful penalties for foreign bank account reporting failures apply per form and not per account, marking an important appellate win for FBAR nonfilers in an unsettled area of law.

On March 24 the court reversed and remanded a lower court’s decision in United States v. Boyd. The three-judge panel was split, with Judge Mark J. Bennett writing the opinion and Judge Sandra S. Ikuta offering a dissent.

. . .

The Ninth Circuit examined the FBAR regulations under 31 CFR 1010.350 (the information that the form must contain) and 31 CFR 1010.306 (the deadline). Boyd’s FBAR was filed late, but it was accurate, the court held in countering the government’s intent to rely on 31 CFR 1010.350.

“The regulations and FBAR require a person to report much more information than the number of accounts. Taken to its ‘logical’ conclusion, the government’s argument could permit many more non-willful violations than those tied just to the number of accounts that should have been listed on an FBAR that was not timely filed,” the court held.

According to Zhanna Ziering of Caplin & Drysdale, the Ninth Circuit reached the right decision, and its interpretation is the only one that does not lead to an absurd result.

“Read in the way that is advocated by the government, you can essentially end up in a situation where a taxpayer with a lesser mens rea [of non-willfulness] can end up with higher penalties than the taxpayer who intentionally hid and willfully failed to report the same amount,” Ziering said.

Ziering said the opinion does leave some room for more than one penalty to be asserted for delinquent filings for the same calendar year, but the court did not define those parameters because the facts of Boyd’s case did not require it.

For the full article, please visit Tax Noteswebsite (subscription required).


About Caplin & Drysdale
Celebrating our 55th Anniversary in 2019, Caplin & Drysdale continues to be a leading provider of legal services to corporations, individuals, and nonprofits throughout the United States and around the world. We are also privileged to serve as legal advisors to accounting firms, financial institutions, law firms, and other professional services organizations.

The firm's reputation over the years has earned us the trust and respect of clients, industry peers, and government agencies. Moreover, clients rely on our broad knowledge of the law and our keen insights into their business concerns and personal interests. Our lawyers' strong tactical and problem-solving skills -- combined with substantial experience handling a variety of complex, high stakes, matters in a boutique environment -- make us one the nation's most distinctive law firms.

With offices in New York City and Washington, D.C., Caplin & Drysdale's core practice areas include:
For more information, please visit us at
Washington, DC Office:
One Thomas Circle NW
Suite 1100
Washington, DC 20005
New York, NY Office:
600 Lexington Avenue
21st Floor
New York, NY 10022


This communication does not provide legal advice, nor does it create an attorney-client relationship with you or any other reader. If you require legal guidance in any specific situation, you should engage a qualified lawyer for that purpose. Prior results do not guarantee a similar outcome.

Attorney Advertising
It is possible that under the laws, rules, or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation.
©2021 Caplin & Drysdale, Chartered
All Rights Reserved.

Related Professionals

Related Practice Area(s)