Tuesday, February 27, 2024

District Court Holds Indicatively While Case on Appeal That Remand of FBAR Willful Penalty to IRS Did Not Vacate the Timely Assessments (2/27/24)

 In United States v. Kerr (D. AZ Dkt O. 2:19-CV-05432 Order dtd 2/23/24), TN here and CL here, the district court ruled indicatively clarifying the intended effect of the district court termination of the case after remand to the IRS of willful FBAR penalties for certain years. The intended effect was not to vacate those penalties but to provide a procedure to reconsider and modify the amount of the penalties for future district court judgment. In other words, the remand did not require a new assessment of FBAR willful penalties (for which the assessment statute of limitations had run). Rather, any IRS action would adjust the previously timely assessed FBAR penalties. After this indicative ruling, the appeal of the case can proceed in the Ninth Circuit.

Links to items related to this blog are:

  • FRCP 62,1, titled Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal, here,
  • FRAP 12.1, Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal, here,
  • Kerr docket entries for this civil case (FBAR penalty enforcement case): CL, here.
  • Ninth Circuit Order staying Ninth Circuit proceedings pending the district court’s indicative ruling, here.

Prior blogs involving Mr. Kerr are (reverse chronological order):

  • Court Holds Defendant in FBAR Suit Alleging No Deficiency in Tax for Excessive Fines Argument Must Prove Deficiency Despite Tax Court No Deficiency Decision (Federal Tax Procedure Blog 4/1/22), here.
  • Issue Preclusion (Collateral Estoppel) in FBAR Civil Willful Penalty Suit After Criminal Conviction (Federal Tax Crimes Blog 3/3/21), here.
  • U.S. Attorney Enabler Sentenced for Assisting Offshore Evasion (Federal Tax Crimes Blog 3/19/14), here.
  • Kerr & Quiel - Denial of Post-Trial Motions - Installment #2 (Federal Tax Crimes Blog 8/20/13), here,
  • Kerr & Quiel - Denial of Post-Trial Motions - Installment #1 (Federal Tax Crimes Blog 8/19/13), here.
  • Convictions of U.S. Persons Related to UBS and Pictet Accounts (Federal Tax Crimes Blog 4/12/13), here.
  • Defendant Waives Attorney-Client Privilege by Asserting Reliance on FBAR Advice Defense (Federal Tax Crimes Blog 7/19/12), here.
  • Swiss Bank Pictet Turns Over U.S. Client Data (Federal Tax Crimes Blog 5/8/12), here.
  • 2 Taxpayers and their U.S. Lawyer Indicted re Foreign Accounts (Federal Tax Crimes Blog 2/1/12), here.

 This blog entry is cross-posted on the Federal Tax Procedure Blog here.

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