In United States v. Solomon, No. 20-82236-CIV-CAN, 2021 U.S. Dist. LEXIS 210602 (S.D. Fla. Oct. 27, 2021), CL here, in a nonwillful FBAR collection suit, the Court held: 1. The FBAR assessment statute of limitations is an affirmative defense that may be waived by the person assessed the penalty (no distinction here between willful and nonwillful). The FBAR assessment statute of limitations has no provision such as § 6501(c)(4) that requires that extensions by agreement must be made while the otherwise  applicable period of limitations for tax assessments is still open; perhaps the implication is that, except for that explicit limitation on waivers by agreement, a taxpayer could waive with an untimely agreement. (In this regard, the Solomon court does conclude that the FBAR statute of limitations is not jurisdictional and thus can be waived.) Accordingly, the execution of the agreement to extend for the FBAR penalties was a waiver of the statute of limitations that had already expired. (On the jurisdictional issue, see Keith Fogg, IRS Succeeds in Jurisdictional Argument – With a Twist (Procedurally Taxing Blog 11/4/21), here.) 2. The nonwillful penalty is per account rather than per form, adopting the Government’s position on this issue. As the court notes in the following footnote (Slip Op. 10 n. 4):
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November 8, 2021
FBAR $10,000 NONWILLFUL FAILURE TO FILE PENALTY IS HELD TO BE $10,000 PER ACCOUNT AND NOT PER FORM
November 5, 2021
US Taxpayer Pleads Guilty to Failure to File a Foreign Bank Account Report
CONCORD - Georges Mazraani, 57, of Windham, pleaded guilty in federal court on Wednesday to willful failing to file a foreign bank account report, Acting United States Attorney John J. Farley announced today.
According to court documents and statements made in court, federal law requires that a U.S. person having a financial interest in, or signature or other authority over, a bank or other financial account in a foreign country, must file a Foreign Bank Account Report (“FBAR”) with the Treasury Department identifying each foreign account if the aggregate balance of all foreign accounts exceeds $10,000 at any point in the calendar year. FBAR information is used by the federal government in criminal, tax, or regulatory investigations or proceedings. A willful failure to file a required FBAR is a felony.
Defendant Mazraani owned and operated Dot Square, a New Hampshire corporation that exported computers and related goods primarily to Lebanon. He also had a financial interest in bank accounts held in Lebanon, from which he sometimes wired money to Dot Square’s bank account held in Salem, New Hampshire. For calendar year 2012, Mazraani filed an FBAR identifying three accounts in Lebanon. During the years 2013 through 2017, however, Mazraani did not file FBARs, even though he had an interest in at least one Lebanese bank account holding more than $10,000 during each of those years. For example, in calendar year 2017, $554,245 was wired, in 13 separate wire transmissions, from Mazraani’s account at a bank in Beirut to Dot Square’s business checking account in New Hampshire. Although Mazraani’s tax preparer advised the defendant’s bookkeeper about the FBAR filing requirement and Mazraani acknowledged on his 2016 and 2017 tax returns that he was required to file an FBAR, he nevertheless failed to file the report.
Mazraani is scheduled to be sentenced on February 14, 2022.
“Failing to file a Foreign Bank Account Report is a federal crime,” said Acting U.S. Attorney Farley. “By failing to file these reports from 2013 to 2017, the defendant concealed information about foreign bank accounts that he was required to disclose. We will continue to work with our law enforcement partners to identify and prosecute those who commit tax crimes and other financial offenses.”
“The law requires companies who use our country’s financial system to provide financial institutions with truthful information about their business operations, but Georges Mazraani admitted today that he knowingly and willfully failed to do that, over the course of five years. In fact, he went out of his way to conceal his bank accounts in Lebanon, despite a reminder from his bookkeeper,” said Joseph R. Bonavolonta, Special Agent in Charge of the FBI Boston Division. “The FBI will not hesitate to aggressively investigate companies who are doing business in the United States but failing to adhere to our laws.”
“The accurate reporting of foreign bank accounts ensures fairness and integrity in the U.S. tax system. By his own admission today, Mr. Mazraani deliberately avoided his reporting requirements in an attempt to hide assets. As a result of his actions, he is now subject to a federal felony conviction,” said Joleen D. Simpson, Special Agent in Charge of the Internal Revenue Service-Criminal Investigation Division, Boston Field Office.
This matter was investigated by the Internal Revenue Service, Criminal Investigation Division, the Department of Commerce, and the Federal Bureau of Investigation. The case is being prosecuted by Assistant U.S. Attorney John S. Davis.
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