Issue Preclusion (Collateral Estoppel) in FBAR Civil Willful Penalty Suit After Criminal Conviction (3/3/21)

In United States v. Kerr (D. Ariz. 2:19-cv-05432-DJH dkt. 26 Order dated 3/1/21), TN here, the court granted the U.S. partial summary judgment in the FBAR civil willful penalty collection suit based on collateral estoppel (issue preclusion) from Kerr’s prior conviction for willfully failing to file FBARs.  The court held that the issue of Kerr’s willfulness had been determined in the criminal proceeding at a higher standard that included the lesser civil standard.  However, the court denied summary judgment with respect to one account, called a placeholder account, that was not among the accounts mentioned in the indictment for the counts of conviction.  The opinion is short, so I will not discuss further.

JAT Notes:

1.  Issue preclusion is term now generally used rather than collateral estoppel.  See Revised Terminology: Issue Preclusion Rather than Collateral Estoppel and Claim Preclusion Rather than Res Judicata (Federal Tax Procedure Blog 11/29/16), here.

2.  I have written before on issue preclusion on the FBAR willful penalty from the criminal conviction.  FBAR Collection Suit Against Person Convicted of Willfully Failing to File FBAR (Federal Tax Crimes Blog 12/11/18), here.

3. I have discussed tax crimes settings for issue preclusion (collateral estoppel) as to the civil fraud penalty from the criminal conviction.  Some of the posts are (reverse chronological order):

• Tax Court Again Rejects Collateral Estoppel For Some Deficiency and Civil Fraud Penalty Where No Tax is Due (Federal Tax Crimes Blog 7/24/16), here.
• Tax Evasion Conviction Does Not Compel a Finding of Deficiency Where There is No Deficiency (Federal Tax Crimes Blog 4/2/16), here.
• Civil Collateral Estoppel Following Tax Evasion Conviction (Federal Tax Crimes Blog 12/3/13), here.
• Hapless Mr. Williams Loses Again (Federal Tax Crimes Blog 12/5/12), here.