Arthur Bedrosian v. United States , 912 F.3d 144 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-3525
________________
ARTHUR BEDROSIAN
v.
UNITED STATES OF AMERICA, DEPARTMENT OF
THE TREASURY,
INTERNAL REVENUE SERVICE,
Appellant
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:15-cv-05853)
District Judge: Honorable Michael M. Baylson
________________
Argued September 25, 2018
Before: AMBRO, CHAGARES,
and GREENAWAY, JR., Circuit Judges
(Opinion filed: December 21, 2018)
Richard E. Zuckerman
Principal Deputy Assistant Attorney General
Travis A. Greaves
Deputy Assistant Attorney General
Gilbert S. Rothenberg, Esquire
Francesca Ugolini, Esquire
Andrew M. Weiner, Esquire (Argued)
United States Department of Justice, Tax Division
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044
Counsel for Appellant
Patrick J. Egan, Esquire (Argued)
Beth L. Weisser, Esquire
Fox Rothschild
2000 Market Street, 20th Floor
Philadelphia, PA 19103
Counsel for Appellee
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OPINION OF THE COURT
________________
AMBRO, Circuit Judge
This appeal presents two issues of first impression in
our Court concerning the Internal Revenue Service’s
assessment of civil penalties for violation of 31 U.S.C. § 5314
and its implementing regulations, which require certain
persons annually to file a Report of Foreign Bank and
2
Financial Accounts (colloquially called a “FBAR” or simply
“Report”). First, we examine federal court jurisdiction over
actions challenging the IRS’s assessment of civil FBAR
penalties. We conclude that jurisdiction exists here but
reserve the question whether it is established in the District
Court when a taxpayer files suit to challenge a FBAR penalty
before fully paying it. Second, we clarify that, to prove a
“willful” FBAR violation, the Government must satisfy the
civil willfulness standard, which includes both knowing and
reckless conduct. To ensure this action accords with that
standard, we remand for further proceedings consistent with
our opinion.
I. Background
A. Legal Background
Congress passed the Bank Secrecy Act of 1970 to
require certain reports and records that may be useful in
“criminal, tax, or regulatory investigations or proceedings, or
in the conduct of intelligence or counterintelligence activities
. . . .” 31 U.S.C. § 5311. One provision of the Act, 31 U.S.C.
§ 5314, instructs the Secretary of the Treasury to prescribe
rules that require persons to file an annual report identifying
certain transactions or relations with foreign financial
agencies. The Secretary has implemented this statute through
various regulations, including 31 C.F.R. § 1010.350, which
specifies that certain United States persons must annually file
a Report with the IRS. Covered persons must file it by June
30 each year for foreign accounts exceeding $10,000 in the
prior calendar year. 31 C.F.R. § 1010.306(c). The authority
to enforce the FBAR requirement has been delegated to the
Commissioner of Internal Revenue. Id. § 1010.810(g); see
also Internal Revenue Manual § 4.26.1, Ex. 4.26.1-3 (U.S.
Dep’t of Treasury Memorandum of Agreement and
3
Delegation of Authority for Enforcement of FBAR
Requirements).
The civil penalties for a FBAR violation are in 31
U.S.C. § 5321(a)(5). The maximum penalty for a non-willful
violation is $10,000. Id. § 5321(a)(5)(B)(i). By contrast, the
maximum penalty for a willful violation is the greater of
$100,000 or 50% of the balance in the unreported foreign
account at the time of the violation. Id. § 5321(a)(5)(C)(i).
B. Facts and Procedural History
Plaintiff-appellee Arthur Bedrosian is a successful
businessman who has worked in the pharmaceutical industry
since the late 1960s. By 1973 he had opened a savings
account in Switzerland so that he could make purchases while
traveling abroad for work without relying solely on traveler’s
checks to do so. Bedrosian initially used the account for
convenient access to funds while traveling abroad, but in later
years he began to use it more as a savings account. Union
Bank of Switzerland (“UBS”) thereafter acquired the bank
where Bedrosian had opened his account, which caused the
account to become a UBS account.
From 1973 until 2007 Bedrosian used the services of
accountant Seymour Handelman to prepare his income tax
returns. Sometime in the 1990s according to Bedrosian, he
informed Handelman for the first time that he maintained a
bank account in Switzerland. Handelman told Bedrosian that
he had been breaking the law every year he did not report the
Swiss account to the IRS. Handelman also told him that his
estate could deal with the consequences after he was dead.
With this advice, Bedrosian continued not to report his UBS
account when he filed his annual tax returns.
4
In 2005 UBS approached Bedrosian and proposed that
it loan him 750,000 Swiss Francs and convert his savings
account into an investment account. Bedrosian accepted the
proposal, and the loan transaction that followed resulted in
the creation of a second account under Bedrosian’s control at
UBS.
In 2007 Handelman died, and Bedrosian began filing
his taxes through a new accountant, Sheldon Bransky. In
preparation, Bedrosian authorized Bransky to obtain his
records from Handelman’s offices and gave Bransky the same
materials that he was accustomed to giving Handelman in
prior years. Bransky then prepared Bedrosian’s 2007 tax
return, on which he indicated that Bedrosian owned a foreign
bank account. Bransky also prepared a FBAR for Bedrosian,
which identified one of Bedrosian’s two accounts at UBS.
The account identified had assets totaling approximately
$240,000; the account omitted had assets totaling
approximately $2 million.
At trial Bedrosian testified that he had no recollection
of discussing his Swiss bank accounts with Bransky.
Bedrosian also testified that he did not know how Bransky
knew to acknowledge the existence of a foreign bank account
on the tax return or how Bransky knew to prepare the Report.
Bedrosian also did not review the 2007 tax return and Report.
He simply signed them.
After submitting these documents for tax year 2007,
Bedrosian became more aware of the seriousness of not
reporting foreign bank accounts to the IRS. After seeking
legal counsel, he began correcting the inaccuracies on his
prior tax filings. Nonetheless, in April 2011 the IRS notified
Bedrosian that it would audit his recent tax returns.
5
In January 2015 the IRS assessed against Bedrosian a
penalty for “willful” failure to disclose the larger UBS
account on his 2007 Report. The penalty assessed was equal
to the statutory maximum of $975,789, i.e., 50% of the
undisclosed account. Bedrosian paid $9,757.89 (one percent
of the penalty assessed) and then filed a complaint in the
District Court seeking to recover his $9,757.89 payment as an
unlawful exaction. The Government answered Bedrosian’s
complaint and filed a counterclaim for the allegedly full
penalty amount of $1,007,345, which included interest and a
late-payment penalty.
In the District Court, the only disputed issue on the
merits was whether Bedrosian’s failure to disclose his
$2 million UBS account on his 2007 Report was “willful.”
The Court held a one-day bench trial to resolve the issue.
After trial it issued findings of fact and conclusions of law,
concluding that the Government had failed to establish
Bedrosian’s Report violation was willful. Accordingly, the
Court entered judgment in favor of Bedrosian both on his
claim against the Government and on its counterclaim against
him. The Government appeals to us.
II. Jurisdiction
The parties contend we have jurisdiction under 28
U.S.C. § 1291 to review the District Court’s entry of final
judgment. But we have “an independent duty to satisfy
ourselves of our appellate jurisdiction regardless of the
parties’ positions.” Papotto v. Hartford Life & Acc. Ins. Co.,
731 F.3d 265, 269 (3d Cir. 2013) (quoting Kreider Dairy
Farms, Inc. v. Glickman, 190 F.3d 113, 118 (3d Cir. 1999)).
The jurisdictional inquiry in this case is a matter of
first impression. Unlike most cases involving the IRS’s
assessment of a civil FBAR penalty, in which the IRS files
6
suit to recover the penalty, this case began when Bedrosian
paid one percent of the assessed penalty and then filed a
complaint in the District Court seeking to recover his partial
payment. The Government did not challenge that Court’s
jurisdiction over Bedrosian’s claim; as noted, it instead
answered the complaint and filed a counterclaim seeking the
full penalty amount.
The parties contend the District Court had jurisdiction
over Bedrosian’s claim under the so-called Little Tucker Act,
28 U.S.C. § 1346(a)(2), which provides district courts with
original jurisdiction, concurrent with the U.S. Court of Federal
Claims, over certain claims against the United States not
exceeding $10,000 in amount, including certain claims
“founded . . . upon the Constitution . . . or [an] Act of
Congress.” The parties contend Bedrosian’s claim qualified
for jurisdiction under the Little Tucker Act because it did not
exceed $10,000 in amount (Bedrosian’s initial claim seeking to
recover his partial payment of $9,757.89) and was founded on
the FBAR statute, 31 U.S.C. §§ 5314 & 5321.
We decline to hold that Bedrosian’s initial claim
against the Government gains jurisdiction under the Little
Tucker Act. A claim may qualify only if it does not fall
within the scope of the so-called tax refund statute, 28 U.S.C.
§ 1346(a)(1). See id. § 1346(a)(2) (applying to claims “other”
than those within 28 U.S.C. § 1346(a)(1)). The tax refund
statute encompasses, among other things, claims to seek
recovery of any “penalty” that is wrongfully collected “under
the internal-revenue laws.” Id. § 1346(a)(1). The parties
concede that a civil penalty under the FBAR statute is a
“penalty” under § 1346(a)(1), but they contend it was not
assessed “under the internal-revenue laws” because the FBAR
statute, 31 U.S.C. §§ 5314 & 5321, is in Title 31 of the U.S.
Code, not Title 26 (the Internal Revenue Code). We are
skeptical of this argument’s elevation of form over substance,
7
and, for reasons stated in the margin, we are inclined to
believe that Bedrosian’s initial claim did not qualify for
district court jurisdiction at all.1
1
The parties’ argument that Bedrosian’s claim is not within
the tax refund statute is premised on the notion that the phrase
“internal-revenue laws” in 28 U.S.C. § 1346(a)(1) refers only
to laws codified in Title 26 of the U.S. Code. But that
argument does not follow the statutory history of the tax
refund statute, which suggests that “internal-revenue laws”
are defined by their function and not their placement in the
U.S. Code. See Wyodak Res. Dev. Corp. v. United States,
637 F.3d 1127, 1134 (10th Cir. 2011). The argument also
ignores the Tax Court’s rejection of the proposition that
“internal revenue laws are limited to laws codified in [T]itle
26.” See Whistleblower 21276–13W v. Comm’r, 147 T.C.
121, 130 & n.13 (2016) (noting that “the IRS itself
acknowledges that tax laws may be found outside title 26”).
We also observe, by analogy, that claims brought by
taxpayers to recover penalties assessed under 26 U.S.C.
§ 6038(b) for failing to report holdings of foreign
companies—a statute nearly identical to the FBAR statute,
except addressing foreign business holdings rather than
foreign bank accounts—are brought under the tax refund
statute, 28 U.S.C. § 1346(a)(1). See Dewees v. United States,
2017 WL 8185850, at *1 (Fed. Cir. Nov. 3, 2017). Also,
allowing a taxpayer to seek recovery of a FBAR penalty
under the Little Tucker Act permits that person to seek a
ruling on that penalty in federal district court without first
paying the entire penalty, as Bedrosian did here by paying
just under the $10,000 Little Tucker Act threshold. This
violates a first principle of tax litigation in federal district
court—“pay first and litigate later.” Flora v. United States,
8
Nonetheless, even if Bedrosian’s initial claim was not
within the Court’s original jurisdiction for Bedrosian’s
complaint, it had the authority to act by virtue of the
Government’s counterclaim, which supplied jurisdiction
under 28 U.S.C. § 1345. See Rengo Co. v. Molins Mach. Co.,
657 F.2d 535, 539 (3d Cir. 1981) (“[A] jurisdictional defect in
the complaint will not preclude adjudication of a
counterclaim over which the court has an independent basis
of jurisdiction.”). We therefore have jurisdiction under
28 U.S.C. § 1291 to review the District Court’s final
judgment, unless another statute takes away our jurisdiction.
Given the potential implication of the Little Tucker
Act, we consider whether our jurisdiction is removed in this
case by the statute governing the exclusive jurisdiction of the
U.S. Court of Appeals for the Federal Circuit. See Chabal v.
Reagan, 822 F.2d 349, 355 (3d Cir. 1987). We are satisfied
that it is not. Under 28 U.S.C. § 1295(a)(2), the Federal
Circuit generally has exclusive jurisdiction over appeals from
cases in which a district court’s jurisdiction was based, in
whole or in part, on the Little Tucker Act, 28 U.S.C.
§ 1346(a)(2), unless the claim stemmed from “an Act of
Congress or a regulation of an executive department
providing for internal revenue.” 28 U.S.C. § 1295(a)(2).
Although the statute does not define “providing for internal
revenue,” we take guidance from courts that have construed
362 U.S. 145, 164 (1960). We are inclined to believe the
initial claim of Bedrosian was within the scope of 28 U.S.C.
§ 1346(a)(1) and thus did not supply the District Court with
jurisdiction at all because he did not pay the full penalty
before filing suit, as would be required to establish
jurisdiction under subsection (a)(1). See Flora, 362 U.S. at
176–77. But given the procedural posture of this case, we
leave a definitive holding on this issue for another day.
9
this same phrase in 28 U.S.C. § 1340, the only other federal
statute that employs the same language.2 In keeping with
those courts, we construe the phrase “providing for internal
revenue” broadly to encompass all federal statutes and
regulations that are “part of the machinery for the collection
of federal taxes.” United States v. Coson, 286 F.2d 453, 455–
56 (9th Cir. 1961) (quotation omitted); see also Aqua Bar &
Lounge, Inc. v. United States, 539 F.2d 935, 937 (3d Cir.
1976) (citing Coson). (For those who might ask about
legislative history, there is no meaningful guidance on the
meaning of “providing for internal revenue” under
§ 1295(a)(2).)
Under this construction, we conclude that the FBAR
statute “provid[es] for internal revenue” within the meaning
of 28 U.S.C. § 1295(a)(2). The statute was enacted initially
as part of the Bank Secrecy Act of 1970, which was intended
to promote, among other things, the collection of federal
taxes. See 31 U.S.C. § 5311; see also United States v.
Chabot, 793 F.3d 338, 344 (3d Cir. 2015) (describing the
purpose of the Bank Secrecy Act: “for tax collection,
development of monetary policy, and conducting intelligence
activities”). In passing that Act, Congress was particularly
2
28 U.S.C. § 1340 provides: “The district courts shall have
original jurisdiction of any civil action arising under any Act
of Congress providing for internal revenue, or revenue from
imports or tonnage except matters within the jurisdiction of
the Court of International Trade.” As Judge Posner has
observed, “the elimination of the minimum amount in
controversy from [28 U.S.C. § 1331] made [28 U.S.C.
§ 1340] . . . [one of] so many beached whales, yet no one
thought to repeal those now-redundant statutes.” Winstead v.
J.C. Penney Co., 933 F.2d 576, 580 (7th Cir. 1991).
10
concerned with “[s]ecret foreign financial facilities,
particularly in Switzerland,” that offered the wealthy a
“grossly unfair” but “convenient avenue of tax evasion.”
H.R. Rep. No. 91-975 at 13 (1970), reprinted in 1971-1 C.B.
559, 561. The IRS has by delegation the authority to enforce
the FBAR statute and implementing regulations,
31 C.F.R. § 1010.810(g), and it has developed a
comprehensive scheme for enforcing and assessing the FBAR
penalty. See Internal Revenue Manual §§ 4.26 & 8.11.6.
Congress further emphasized the tax-related nature of the
statute by amending its penalty provisions as part of the
American Jobs Creation Act of 2004, a piece of tax
legislation. Pub. L. No. 108-357, § 821(a), Title VIII,
Subtitle B, Part I, 118 Stat. 1418, 1586.
Our take is the FBAR statute is part of the IRS’s
machinery for the collection of federal taxes; thus it is an act
“providing for internal revenue” within the meaning of 28
U.S.C. § 1295(a)(2). Accordingly we conclude the Federal
Circuit would not have exclusive jurisdiction over this
appeal even if the District Court’s jurisdiction were based in
part on the Little Tucker Act.
Although we leave open whether Bedrosian’s initial
claim created original jurisdiction in the District Court, we
are satisfied it had jurisdiction to render the judgment under
review and we have appellate jurisdiction under
28 U.S.C. § 1291.
III. Discussion
The District Court’s judgment for Bedrosian was based
on its ruling that the Government did not prove Bedrosian’s
failure to file an accurate Report in 2007 was “willful.” The
Government raises three distinct claims of error, but we need
address only one to resolve this appeal—namely, whether
11
the District Court evaluated Bedrosian’s conduct under the
correct legal standard for willfulness. 3
A. Standard of Review
There is little on which the parties agree. This
includes the applicable standard of review. Bedrosian
contends we should review the District Court’s
determination of non-willfulness for clear error because it
was an essentially factual determination. The Government
counters that we should review de novo the legal analysis
underlying the District Court’s determination because the
analysis is a purely legal question. Par for the course is that
the parties speak past one another in their analyses, yet the
issue is nuanced.
We have not directly addressed what standard of
review applies to a district court’s willfulness determination
under the FBAR statute. In the context of other civil
penalties, we have held that a district court’s determination
of willfulness is a primarily factual determination that is
reviewed for clear error. See Pignataro v. Port Auth. of N.Y.
& N.J., 593 F.3d 265, 273 (3d Cir. 2010) (“Whether a
violation of the FLSA is willful is a question of fact that is
reviewed for clear error.”). Similarly, we have held that the
Tax Court’s determination of willfulness in tax matters is
3
The Government’s other two claims of error are that (1) the
District Court unduly weighed Bedrosian’s subjective
motivations when assessing willfulness, and (2) it clearly
erred in finding that Bedrosian did not know he owned a
second foreign bank account in Switzerland. Given our
disposition of the appeal, we need not directly address either
of these claims and leave it to the District Court if it needs to
do so on remand.
12
reviewed for clear error. See Estate of Spear v. Comm’r, 41
F.3d 103, 114 (3d Cir. 1994). And the Supreme Court has
held that clear error review applies to a trial court’s
determination of “willful neglect” in the context of civil
penalties for failure to pay federal taxes. See United States v.
Boyle, 469 U.S. 241, 249 n.8 (1985); accord E. Wind Indus.,
Inc. v. United States, 196 F.3d 499, 504 (3d Cir. 1999).
We follow suit and hold that a district court’s
determination in a bench trial as to willfulness under the
FBAR statute is reviewed for clear error. Moreover, this
aligns with a broader line of case law in our Circuit extending
clear error review to similar factual determinations. See, e.g.,
United States v. Brown, 631 F.3d 638, 642 (3d Cir. 2011)
(applying “clear error” review to district court’s
determination as to police officer’s “reckless disregard for the
truth”); United States v. Richards, 674 F.3d 215, 223 (3d Cir.
2012) (whether public official held “high-level decision-
making” or “sensitive” position reviewed for clear error); In
re Frescati Shipping Co., Ltd., 718 F.3d 184, 211 (3d Cir.
2013) (as “factual issues predominate” in determining
negligence, clear error review applies).
On the surface, this should settle the issue. But not
quite. Even when we review a trial court’s primarily factual
determination under a deferential standard of review, we
nonetheless have a duty to “correct any legal error infecting
[the] decision.” U.S. Bank Nat’l Assoc. ex rel. CWCapital
Asset Mgmt., LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960,
968 n.7 (2018). For example, if the record suggests a district
court “somehow misunderstood the nature” of the operative
inquiry, id., we then decide whether to remand the case to that
court for clarification of the basis of its determination or,
alternatively, whether to decide the primarily factual issue
ourselves. See Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S. 379, 381, 387 & n.3 (2008). In general, the proper
13
course will be remand unless “the record permits only one
resolution of the factual issue.” Id. at 387 n.3 (quoting
Pullman–Standard v. Swint, 456 U.S. 273, 292 (1982)).
B. “Willfulness” under the FBAR Statute
In assessing the inquiry performed by the District
Court, we first consider its holding that the proper standard
for willfulness is “the one used in other civil contexts—that
is, a defendant has willfully violated [31 U.S.C. § 5314] when
he either knowingly or recklessly fails to file [a] FBAR.”
(Op. at 7.) We agree. Though “willfulness” may have many
meanings, general consensus among courts is that, in the civil
context, the term “often denotes that which is intentional, or
knowing, or voluntary, as distinguished from accidental, and
that it is employed to characterize conduct marked by careless
disregard whether or not one has the right so to act.” Wehr v.
Burroughs Corp., 619 F.2d 276, 281 (3d Cir. 1980) (quoting
United States v. Illinois Central R.R., 303 U.S. 239, 242–43
(1938)) (internal quotation marks omitted). In particular,
where “willfulness” is an element of civil liability, “we have
generally taken it to cover not only knowing violations of a
standard, but reckless ones as well.” Fuges v. Sw. Fin. Servs.,
Ltd., 707 F.3d 241, 248 (3d Cir. 2012) (quoting Safeco Ins.
Co. of Am. v. Burr, 551 U.S. 47, 57 (2007)). We thus join our
District Court colleague in holding that the usual civil
standard of willfulness applies for civil penalties under the
FBAR statute.
This holds true as well for recklessness in the context
of a civil FBAR penalty. That is, a person commits a reckless
violation of the FBAR statute by engaging in conduct that
violates “an objective standard: action entailing ‘an
unjustifiably high risk of harm that is either known or so
obvious that it should be known.’” Safeco, 551 U.S. at 68
(quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)). This
14
holding is in line with other courts that have addressed civil
FBAR penalties, see, e.g., United States v. Williams, 489
F. App’x 655, 658 (4th Cir. 2012), as well as our prior cases
addressing civil penalties assessed by the IRS under the tax
laws, see, e.g., United States v. Carrigan, 31 F.3d 130, 134
(3d Cir. 1994). With respect to IRS filings in particular, a
person “recklessly” fails to comply with an IRS filing
requirement when he or she “(1) clearly ought to have known
that (2) there was a grave risk that [the filing requirement was
not being met] and if (3) he [or she] was in a position to find
out for certain very easily.” Id. (quoting United States v.
Vespe, 868 F.2d 1328, 1335 (3d Cir. 1989) (internal quotation
omitted)).
C. The District Court’s evaluation of Bedrosian’s
willfulness
So did the District Court use the proper standard to
evaluate Bedrosian’s conduct? It first compared his conduct
to the conduct of other individuals in recent cases who have
been the subject of civil FBAR penalties. Based primarily
on those comparisons, it concluded that Bedrosian did not
act willfully. In doing so, the Court’s discussion and
distinction of prior FBAR cases imply the ultimate
determination of non-willfulness was based on findings
related to Bedrosian’s subjective motivations and the overall
“egregiousness” of his conduct, which are not required to
establish willfulness in this context.
The remainder of the District Court’s opinion does not
dispel our concern. Although it discusses whether Bedrosian
acted knowingly, it did not consider whether, when his 2007
FBAR filing came due, he “(1) clearly ought to have known
that (2) there was a grave risk that [an accurate FBAR was
not being filed] and if (3) he was in a position to find out for
certain very easily.” Carrigan, 31 F.3d at 134 (quoting
15
Vespe, 868 F.2d at 1335 (internal quotation omitted)). The
Court thus leaves the impression it did not consider whether
Bedrosian’s conduct satisfies the objective recklessness
standard articulated in similar contexts.
Although we would afford clear error review to an
ultimate determination as to recklessness, we cannot defer to
a determination we are not sure the District Court made based
on our view of the correct legal standard. We therefore
remand for further consideration and to render a new
judgment. See Mendelsohn, 552 U.S. at 381, 387 & n.3.
* * * * *
The Federal Circuit does not have exclusive
jurisdiction under 28 U.S.C. § 1295(a)(2) to review appeals
from a district court’s final judgment on a claim against the
Government for recovery of a civil FBAR penalty. We
leave open the question whether such a claim, standing
alone, would be within the original jurisdiction of the district
courts, at least where the taxpayer has not paid the full
penalty before filing suit. We further hold the standard of
willfulness under the FBAR statute refers to the civil
willfulness standard, which includes both knowing and
reckless conduct. Because we are unsure whether the District
Court evaluated Bedrosian’s conduct under this objective
standard, we remand the case for further proceedings
consistent with this opinion.
16