- 1 Deceased Individual & Successor Liability for FBAR Penalties
- 2 The FBAR falls under the Bank Secrecy Act (BSA)
- 3 FBAR Penalties do Not Originate with the IRS
- 4 Case 1: U.S. v. Estate of Schoenfeld (344 F.Supp.3d 1354)
- 5 Important takeaway – Post-Death Judgment
- 6 What does the Court Say About Estate or Representative Liability?
- 7 Case 2: U.S. v. Park, 389 F.Supp.3d 561
- 8 Decedent and FBAR Penalties
- 9 Court Case Issues involving FBAR
- 10 FBAR Disclosure Amnesty – Golding & Golding (Board-Certified)
- 11 Recent Golding & Golding Case Highlights
- 12 How to Hire Experienced FBAR Counsel?
- 13 Interested in Learning More about Golding & Golding?
Deceased Individual & Successor Liability for FBAR Penalties
Deceased Individual & Successor Liability for FBAR Penalties: When a person dies, the deceased individual’s FBAR Penalties do not automatically disappear. And, there is the potential of Successor FBAR Liability for the decedent to the IRS.
Deceased Individual & Successor Liability for FBAR Penalties
When it comes to the IRS, death does not mean the person is off the hook; it means the next person in line (aka the successor) may be subject to the FBAR penalties .
There have been a few recent cases, (which Golding & Golding has already summarized previously) which result in potential liability to the distributee.
The two main cases are Schoenfeld and Park (the latter which relies in part of the former)
The FBAR falls under the Bank Secrecy Act (BSA)
As provided by the Office of the Comptroller of Currency:
The Bank Secrecy Act (BSA), 31 USC 5311 et seq establishes program, recordkeeping and reporting requirements for national banks, federal savings associations, federal branches and agencies of foreign banks.
The OCC’s implementing regulations are found at 12 CFR 21.11 and 12 CFR 21.21. The BSA was amended to incorporate the provisions of the USA PATRIOT Act which requires every bank to adopt a customer identification program as part of its BSA compliance program.
FBAR Penalties do Not Originate with the IRS
The collection of FBAR penalties by the IRS is a bit different than other “taxes.” That is because the FBAR does not originate with the IRS, and the FBAR penalty is not based on “taxes.”
Rather, it originates with FinCEN (Financial Crimes Enforcement Network), and non-compliance of foreign account reporting.
Since 2003, the IRS is responsible for enforcement of penalties.
Case 1: U.S. v. Estate of Schoenfeld (344 F.Supp.3d 1354)
This is a case that originates in Florida.
In this case, the FBAR had issued penalties against the decedent (who is the person that died). His name is Mr. Steven Schoenfeld.
The chronological dates are important in order to give you an idea of how the FBAR penalty manifested.
September 30, 2014: FBAR “willful” penalties were assessed against Mr. Steven Schoenfeld The penalty was form $614,300, which represented 50% maximum value of the accounts
August 21, 2015: Steven Schoenfeld died testate, and had appointed a personal representative.
September 29, 2016: The IRS initiated the case to reduce the penalty to judgment.
Important takeaway – Post-Death Judgment
The IRS assessed penalties before Steven Schoenfeld died.
The IRS tries to collect the penalties, but since he had passed away, the IRS initiated a COURT action to reduce the penalty to judgment.
Florida Law re: Suing a Decedent
As provided by the court, a decedent lacks the ability to be sued.
*There was a timing issue in that the IRS filed the complaint against Steven (the decedent) after he died. The IRS argued (unconvincingly) that the complaint was valid against Steven, since it was filed before they knew he died – but the court did not buy it.
Therefore, the IRS cannot proceed against decedent, Steven Schoenfeld, individually — because he was dead before the lawsuit against him was filed.
What does the Court Say About Estate or Representative Liability?
The court found that the Governments’ claim survives Steven Schoenfeld’s death. As a result, the court also found that the tax penalty survives.
But, the Court Limits Enforcement
The court takes the position that the U.S. cannot pursue a claim directly against the estate. Rather, the government can pursue a claim against the personal representative/distribute of the estate – Robert Schoenfeld.
As provided by the court:
Death may be an avenue to escape from many of the woes of life, but it is not escape from taxes.
Case 2: U.S. v. Park, 389 F.Supp.3d 561
This is a case that originates in Michigan.
In U.S. vs. Park, the defendant (Jung Joo Park) is the surviving spouse, and trustsee of her husband’s trust.
Pre-Summary review of Park
The Parks are no strangers to running afoul of the law and the IRS.
It seems that Defendant and her husband were falsely marketing certain items in their business. These issues did not involve Foreign Bank Accounts and Reporting.
Throughout their career, the Parks were audited and investigated. More recently during an audit, the IRS discovered information involving previously unreported foreign accounts, and sought to issue penalties.
Decedent and FBAR Penalties
The Parks had foreign accounts. They did not report the foreign accounts on the FBAR, and misstated their ownership or signature authority over foreign accounts.
Court Case Issues involving FBAR
Here are the two (2) major FBAR issues from the case:
Is the IRS limited by the non-Updated FBAR Willful Regulation?
A few courts at the district court level held that the IRS is limited to issuing $100,000 in Willful FBAR penalties, since the regulation was not updated to match the statute. Like most courts, this court disagrees, and does not limit the penalty to $100,000.
Rather, the IRS can pursue the assessed penalty of 50% maximum value.
Reducing the FBAR Civil Penalties to Judgment
The defendants claim the IRS missed their chance to issue FBAR penalties.
Because the penalties were issued against Mr. Park on November 21, 2014 – which was more than two-years after his death. It was also after the estate had already been distributed.
The IRS argues the penalty accrued on June 30, 2009 – the date the 2008 FBAR was due (noting that since then, the due date has been changed).
The court in Park relies on Schoenfeld. By doing so, the Court alleges while the decedent may not be the proper defendant, the government can pursue the personal representative (here, Charles Park).
As provided in Schoenfeld:
The Court stated that the estate itself was not a proper party to that action, but the government could proceed against the defendant’s son as a distributee of the estate or against some recognizable representative such as “an appointed executor or administrator of the deceased party’s estate.
FBAR Disclosure Amnesty – Golding & Golding (Board-Certified)
We specialize exclusively in international tax, and specifically IRS offshore disclosure.
We have successfully represented clients in more than 1,000 streamlined and voluntary offshore disclosure submissions nationwide and in over 70-different countries. We have represented thousands of individuals and businesses with international tax problems.
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe.
- Learn more about the Board-Certified Tax Lawyer Specialist credential
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We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants and Financial Professionals worldwide.
Less than 1% of Tax Attorneys Nationwide Are Certified Specialists
Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.
Recent Golding & Golding Case Highlights
- We represented a client in an 8-figure disclosure that spanned 7 countries.
- We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
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How to Hire Experienced FBAR Counsel?
Generally, experienced attorneys in this field will have the following credentials/experience:
- Board Certified Tax Law Specialist credential
- Master’s of Tax Law (LL.M.)
- Dually Licensed as an EA (Enrolled Agent) or CPA
- 20-years experience as a practicing attorney
- Extensive litigation, high-stakes audit and trial experience
Interested in Learning More about Golding & Golding?
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Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.
Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver. He has also earned the prestigious IRS Enrolled Agent credential. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo, and various Law Journals nationwide.