Wednesday, March 30, 2022

More District Court Thrashing Around on Arbitrary and Capricious Calculation of Willful FBAR Penalties (3/30/21)

I have written before on the saga of Timberly Hughes.  Court Sustains Willful FBAR Penalty for Two of Four Years (Federal Tax Crimes Blog 10/15/21), here.  Hughes is back in the news, so to speak.  In United States v. Hughes (N.D. Cal 18-cv-05931-JCS 3/29/22), here, Magistrate Judge Spero is trying to wrap up the case so that it goes to the District Judge and then, apparently, to the Ninth Circuit.  (The docket entries in CourtListener are here.)

 In high level summary:

1. The court confirms that for the two years it previously found nonwillful, that while losing on the willful penalty for the 2 years, there would be no nonwillful penalty for those years.  The court says (p. 3, n 4):

   n4 “The United States does not seek nonwillful penalties against Ms. Hughes for 2010 and 2011, though the United States reserves its right to appeal the Court’s  willfulness determination as to 2010 and 2011.” Pl.’s Reply (dkt. 168) at 2

I have never thought about whether nonwillful and willful penalties can be assessed and litigated in the alternative (something like a lesser included offense concept).  Since the IRS never assessed the nonwillful penalty, I suppose it is out of time to assert assess.  I don't know whether such alternative assessments and/or litigation could be made under the statutes or procedures.  For example, in the Hughes case, applying the nonwillful penalty to the years the court found were not willful.

2. The Court found that there were errors in the calculations and methodology in several respects and remanded to the IRS to reconsider the penalties.  There is no discussion of potential statute of limitations issues from a recalculation and reassessment.  The issue is whether a new assessment would be permitted or only an adjustment downward to the prior assessment.  I am not sure whether the normal APA remand to the agency holds or forces open the statute of limitations (sort of the way a petition to the Tax Court in a deficiency cases suspends the statute of limitations so that the correct number after litigation gets assessed).

3.  In paragraph 2 my prior blog here, I discussed a potential glitch where the IRS uses its methodology to quantify the willful penalty by spreading the amount quantified at 50% of the single high amount over the willful years.  The example I gave was a high amount of $2 million over four willful years and for simplicity assumed that high amount was static at all times during the year.  The maximum penalty authorized by the statute would be 50% per year, for an aggregate of $4 million.  Under the IRS policy to apply only a 50% to the high amount for all willful years (that's not each year), the willful penalty would be the same $1,000,000, but applied to each of the four years.  Now, with two years dropping out, does $500,000 allocated to the now nonwillful years drop off or can the IRS re-allocate the lost $500,000 to the years in which the willful penalty was sustained.  I don’t know.  And, if you vary the amounts so that only in one year the high amount was $2 million, you can get weird results to this type of issue.  And what if in that varying scenario, the high amount were in a year judicially determined to be nonwillful?

4.  Somewhat relating to paragraph 3, the Court says(p. 7, paragraph 22):

22. Based on that guidance, which the IRS applied to determine Hughes’s penalties, the understatement of several account balances in 2010 and 2011 has resulted in a detriment to Hughes because they resulted in allocating a smaller portion of the total penalty to those years for which the United States failed to carry its burden to show a willful violation, and thus a greater allocation for the years where the United States is entitled to collect such penalties. 

Of course, the penalty amounts in the years found not willful drop off altogether. That is good for Hughes. The Court's lament is that, if the IRS had applied it formula correctly, more should have been allocated to the nonwillful years on the notion that those allocated penalty amounts go away altogether and that on the remand the maximum aggregate penalties for the two willful years would be $500,000.   That is not the way the calculation formula is designed to work.  The high balance for the willful years is the base multiplied by 50% which is then allocated over the willful years, now two rather than one.   In the example, the same penalty should then be allocated to only 2 years -- $500,000 per year rather than $250,000 per year . The problem is that the formula does not contemplate allocating any of the penalty to nonwillful years.  And as before, there can be weird results with varying amounts in the accounts over the years, particularly if the high amount year used were one found to not be willful.

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