District Court Denies Gov't Summary Judgment in FBAR Collection Suit (6/4/20)

In United States v. de Forrest (D. Nev. Dkt. # 2:17-cv-03048 Dkt entry 52, Order dated 5/31/20), here (with docket entries here), the court denied the Government’s motion for summary judgment in an FBAR willful penalty collection suit.  I don’t think the Order offers anything material to the discussion of FBAR willful penalty matters, except that, on the facts recounted, I speculate that other judges might have granted the Government’s motion.  And, on the facts recounted, if this judge were the “fact decider” (she is not because de Forrest demanded a jury), I am not sure de Forrest would prevail because the facts do not look particularly good.  I did note that the court says (Slip Op. at 3):  “Defendant asserts that over the course of their relationship, Mr. de Forrest [the money guy who started the offshore accounts] warned Defendant 'not to say anything about anything' regarding the the Swiss accounts. (Def. Dep. 42:22–43:1).2,” with the footnote saying:  “n2 In her Response, Defendant asserts that her husband threatened to murder her if she told anyone about the accounts. (Resp. at 2). However, there is no citation supporting this claim.”

The Defendant in the case demanded a jury.  I have previously discussed a jury trial in FBAR refund and collection suits in Outstanding Powerpoint Presentation on All Things FBAR Penalties (Procopio #1) (11/5/18), here.  I wonder which party a jury might favor as compared to a judge (this judge in particular).  The Government did not demand a jury on the original complaint.  There is no explanation for why the Government did not demand a jury, but it may have been simply because bench trials are easier and more expeditious than jury trials.  (At the margins, some judges might prefer to punt the fact issue to a jury rather than actually deciding the issue on motion for summary judgment.)  I do know that, from my experience in refund litigation with DOJ Tax, my attention was heightened when I got a refund suit with no jury demand by the taxpayer and I would sometimes demand a jury if there were some reason to believe that a jury would be more favorable to the Government.  Where I litigated, in the deep South in the mid-1970s,  the general understanding was that, except in some types of cases, a jury would not be more favorable – indeed likely to have at least one juror hostile -- to the Government (have war stories there, but won’t digress here).  Most tax litigators in the South knew that and would almost routinely demand a jury in a tax refund suit, so when the taxpayers did not demand a jury, that was worthy of attention.