Amicus Briefs in Supreme Court Bittner Case on Nonwillful FBAR Penalty Per Form or Per Account (10/12/22)

I previously blogged that the Supreme Court granted Bittner's petition for writ of certiorari. Supreme Court Grants Cert in Bittner v U.S. On FBAR Nonwillful Penalty Per Form or Per Account Issue (Federal Tax Crimes Blog 6/21/22; 6/22/22), here. The Supreme Court docket sheet for the case (No. 20-40597) is here, with links to all filings in the case.  (Because for some reason, the Supreme Court docket sheet link does not work all the time, the parallel SCOTUSblog docket sheet is here with appropriate links.)

I write today on the amicus briefs in the case (also linked on the docket sheet). Both parties in the case gave blanket consent to filing amicus briefs on the merits. Here is the breakdown of the amicus briefs:

Amicus briefs in support of Bittner:  National Federation of Independent Business Small Business Legal Center; American College of Tax Counsel (note that the docket entry for this brief says it is filed in support of neither party, but the actual brief says it is in support of Bittner); Center for Taxpayer Rights; and The Chamber of Commerce of the United States of America,.

Amicus brief in support of the United States (IRS): National Whistleblower Center.

Amicus brief in support of Neither Party:  American College of Trust and Estate Counsel.

JAT Comments:

 1. First on the amicus brief in support of "Neither Party" filed by American College of Trust and Estate Counsel, the following are relevant quotes from the filing:

[*3] In order to assist the Court in its consideration of the construction of the statute, ACTEC’s brief discusses the evolution of the BSA to include non-willful violations of the BSA; the effect of  [*4] the statute on fiduciary parties; the alternative statutory constructions; and the potential  constitutional impact of the statute as construed.

[*22]

 CONCLUSION

            The American College of Trust and Estate Counsel is grateful for the opportunity to bring these issues to the attention of the Court. 

With due respect, the tenor of the position stated--although alleged to support of neither party--seems to support the per form interpretation of the statute, which is Bittner's position. I suppose the filing is just to educate the court in a way that the merits brief filings would not. I suppose that given the Supreme Court's proclivity to screw up tax-related cases, more education is better.

2. The brief in support of the United States' per account interpretation for the nonwillful penalty filed by the National Whistleblower Center should not be surprising. The NWC wants to maximize the Government's collection of "collected proceeds"–the base for whistleblower awards, thereby maximizing whistleblower awards.