More Thrashing in Schwarzbaum on Effect of Eleventh Circuit's Remand to Remand to IRS on Statute of Limitations (4/1/22; 4/7/22)

I have previously written on the case of United States v. Schwarzbaum (S.D. Fla. Dkt # 18-cv-81147-BLOOM/Reinhart CourtListener Dkt. Entries here).  All my posts can be seen with a blog search on Schwarzbaum here. Where the posts are presented first by relevance but a link at the top permits reshuffling.

A good place to start is 11th Cir. Remands For IRS To Re-Determine FBAR Penalties After Affirming Original Calculation Was Arbitrary And Capricious (Federal Tax Procedure Blog 1/26/22), here.  Applying oft used APA procedure the Court remanded to the District Court to then remand to the IRS for correction of the deficiencies.  As I note in that blog, there are statute of limitations issue on that type of remand, such as if a corrected assessment is required, is the corrected assessment a new assessment clearly outside the statute of limitations or is it just an adjustment of the earlier assessment for statute of limitations purposes?

On remand, the brouhaha continues.  The parties now dispute the issue of whether the District Court can retain jurisdiction while the case is remanded.  The Government has moved for the District Court to retain jurisdiction.  Schwarzbaum opposes the Government’s motion, urging that the remand to the District Court concludes the jurisdiction in the District Court, requiring that the IRS make the penalty determination afresh requiring a new FBAR assessment that would now be plainly untimely.

I won’t discuss the arguments but will just link to the pleadings:

• Government's Motion Dkt. 136, here;
• Schwarzbaum’s Opposition Dkt. 141, here; and
• Government's Reply Dkt. 144, here (added to blog 4/7/22).

Those wanting further developments can periodically check the CourtListener Docket Entries here.