Bittner v. United States

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BITTNER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–1195. Argued November 2, 2022—Decided February 28, 2023
The Bank Secrecy Act (BSA) and its implementing regulations require
U. S. persons with certain financial interests in foreign accounts to file
an annual report known as an “FBAR”—the Report of Foreign Bank
and Financial Accounts. The statute imposes a maximum $10,000
penalty for nonwillful violations of the law. These reports are designed
to help the government trace funds that may be used for illicit purposes
and identify unreported income that may be subject to taxation. Peti-
tioner Alexandru Bittner—a dual citizen of Romania and the United
States—learned of his BSA reporting obligations after he returned to
the United States from Romania in 2011, and he subsequently submit-
ted the required annual reports covering five years (2007 through
2011). The government deemed Bittner’s late-filed reports deficient
because the reports did not address all accounts as to which Bittner
had either signatory authority or a qualifying interest. Bittner filed
corrected FBARs providing information for each of his accounts—61
accounts in 2007, 51 in 2008, 53 in 2009 and 2010, and 54 in 2011. The
government neither contested the accuracy of Bittner’s new filings nor
suggested that Bittner’s previous errors were willful. But because the
government took the view that nonwillful penalties apply to each ac-
count not accurately or timely reported, and because Bittner’s five late-
filed annual reports collectively involved 272 accounts, the government
calculated the penalty due at $2.72 million. Bittner challenged that
penalty in court, arguing that the BSA authorizes a maximum penalty
for nonwillful violations of $10,000 per report, not $10,000 per account.
The Fifth Circuit upheld the government’s assessment.
Held: The BSA’s $10,000 maximum penalty for the nonwillful failure to
file a compliant report accrues on a per-report, not a per-account, basis.
Pp. 4–14, 16.
2 BITTNER v. UNITED STATES
Syllabus
(a) The Court begins with the terms of the most immediately rele-
vant statutory provisions—31 U. S. C. §5314, which delineates an in-
dividual’s legal duties under the BSA, and §5321, which outlines the
penalties that follow for failing to discharge those duties. Section 5314
provides that the Secretary of the Treasury “shall” require certain per-
sons to “keep records, file reports, or keep records and file reports”
when they “mak[e] a transaction or maintai[n] a relation” with a “for-
eign financial agency.” The statute states that reports “shall contain”
information about “the identity and address of participants in a trans-
action or relationship,” “the legal capacity in which a participant is
acting,” and “the identity of real parties in interest,” along with a “de-
scription of the transaction.” Section 5314 does not speak of accounts
or their number but rather the legal duty to file reports which must
include various kinds of information about an individual’s foreign
“transaction[s] or relationship[s].” Violation of §5314’s reporting obli-
gation is binary: One files a report “in the way and to the extent the
Secretary prescribes,” or one does not; multiple willful errors may es-
tablish a violation of §5314 but even a single mistake, willful or not,
constitutes a §5314 violation. The only distinction the law draws be-
tween a report containing a single mistake and one containing multi-
ple mistakes concerns the appropriate penalty.
Section 5321 authorizes the Secretary to impose a civil penalty of up
to $10,000 for “any violation” of §5314. The “nonwillful” penalty pro-
vision in §§5321(a)(5)(A) and (B)(i) does not speak in terms of accounts
but rather pegs the quantity of nonwillful penalties to the quantity of
“violation[s].” Section 5314 provides that a violation occurs when an
individual fails to file a report consistent with the statute’s commands.
Multiple deficient reports may yield multiple $10,000 penalties, and
even a seemingly simple deficiency in a single report may expose an
individual to a $10,000 penalty. But penalties for nonwillful violations
accrue on a per-report, not a per-account, basis.
To be sure, for certain cases that involve willful violations, the stat-
ute does tailor penalties to accounts. Section 5321 specifically ad-
dresses a subclass of willful violations that involve “a failure to report
the existence of an account or any identifying information required to
be provided with respect to an account.” §5321(a)(5)(D)(ii). In such
cases, the Secretary may impose a maximum penalty of either
$100,000 or 50% of “the balance in the account at the time of the vio-
lation”—whichever is greater. §5321(a)(5)(C) and (D)(ii). The govern-
ment maintains that because Congress explicitly authorized per-ac-
count penalties for some willful violations, the Court should infer that
Congress meant to do so for analogous nonwillful violations. But the
government’s interpretation defies a traditional rule of statutory con-
struction: When Congress includes particular language in one section
Cite as: 598 U. S. ____ (2023) 3
Syllabus
of a statute and omits it from a neighbor, the Court normally under-
stands that difference in language to convey a difference in meaning
(expressio unius est exclusio alterius). Here the statute twice provides
evidence that when Congress wished to tie sanctions to account-level
information, it knew exactly how to do so. Congress said in
§§5321(a)(5)(C) and (D)(ii) that penalties for certain willful violations
may be measured on a per-account basis. And Congress said in
§5321(a)(5)(B)(ii) that a person may invoke the reasonable cause ex-
ception only on a showing of per-account accuracy. But Congress did
not say that the government may impose nonwillful penalties on a per-
account basis. Pp. 5–8.
(b) The Court finds a number of additional contextual clues that cut
against the government’s theory in this case. First, the government
has repeatedly issued guidance to the public—in various warnings,
fact sheets, and instructions—that seems to tell the public that the
failure to file a report represents a single violation exposing a nonwill-
ful violator to one $10,000 penalty. While the government’s guidance
documents do not control the Court's analysis, courts may consider the
inconsistency between the government’s current view and its past
views when weighing the persuasiveness of any interpretation it of-
fers. Skidmore v. Swift & Co., 323 U. S. 134, 140.
Second, the drafting history of the nonwillful penalty provision un-
dermines the theory the government urges the Court to adopt. In
1970, the BSA included penalties only for willful violations. In 1986,
Congress authorized the imposition of penalties on a per-account basis
for certain willful violations. When Congress amended the law again
in 2004 to authorize penalties for nonwillful violations, Congress could
have, but did not, simply use language from its 1986 amendment to
extend per-account penalties for nonwillful violations.
Still other features of the BSA and its regulatory scheme suggest the
law aims to provide the government with a report sufficient to tip it to
the need for further investigation, not to ensure the presentation of
every detail or maximize revenue for each mistake. Consider that Con-
gress declared that the BSA’s “purpose” is “to require” certain “reports”
or “records” that may assist the government in various kinds of inves-
tigations. §5311. Absent is any indication that Congress sought to
maximize penalties for every nonwillful mistake. Similarly, the Sec-
retary’s regulations implementing the BSA require individuals with
fewer than 25 accounts to provide details about each account while in-
dividuals (like Bittner) with 25 or more accounts do not need to list
each account or provide account-specific details unless the Secretary
requests more “detailed information.” 31 CFR §1010.350(g)(1). Fi-
nally, the government’s per-account penalty reading invites anoma-
lies—for example, subjecting willful violators to lower penalties than
4 BITTNER v. UNITED STATES
Syllabus
nonwillful violators—avoided by reading the nonwillful penalty to ap-
ply on a per-report basis.
The government replies that the per-report interpretation risks the
anomaly that the Secretary could formulate reporting requirements to
require a separate report for each account and in that way effectively
achieve a per-account penalty for nonwillful violations. What this
proves is unclear, as the Secretary's discretion to require more (or
fewer) reports is not at issue here, and in any event does not answer
whether the Secretary may impose nonwillful penalties on a per-report
or per-account basis. Pp. 9–14.
(c) Best read, the BSA treats the failure to file a legally compliant
report as one violation carrying a maximum penalty of $10,000. P. 16.
19 F. 4th 734, reversed and remanded.
GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court except as to Part II–C. JACKSON, J., joined that
opinion in full, and ROBERTS, C. J., and ALITO and KAVANAUGH, JJ.,
joined except for Part II–C. BARRETT, J., filed a dissenting opinion, in
which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 598 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1195
_________________
ALEXANDRU BITTNER, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 28, 2023]
JUSTICE GORSUCH announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I, II–A, II–B, and III, and an opinion with respect to Part
II–C, in which JUSTICE JACKSON joins.
The Bank Secrecy Act and its implementing regulations
require certain individuals to file annual reports with the
federal government about their foreign bank accounts. The
statute imposes a maximum $10,000 penalty for nonwillful
violations of the law. But recently a question has arisen.
Does someone who fails to file a timely or accurate annual
report commit a single violation subject to a single $10,000
penalty? Or does that person commit separate violations
and incur separate $10,000 penalties for each account not
properly recorded within a single report?
The answer makes a difference, especially for immigrants
who hold accounts abroad and Americans who make their
lives outside the country. On one view, penalties accrue on
a per-report basis. So, for example, a single late-filed report
disclosing the existence of 10 accounts may yield a maxi-
mum fine of $10,000. On another view, penalties multiply
on a per-account basis, so the same report can invite a fine
2 BITTNER v. UNITED STATES
Opinion of the Court
of $100,000 even if the individual’s foreign holdings or total
net worth do not approach that amount. Because the Ninth
Circuit read the law one way and the Fifth Circuit the
other, we agreed to take this case.
I
The Bank Secrecy Act (BSA) does not make it illegal to
hold foreign accounts. Nor does the BSA tax those ac-
counts. To the contrary, the federal government has
acknowledged that “U. S. persons maintain overseas finan-
cial accounts for a variety of legitimate reasons including
convenience and access.” IRS Pub. 5569, Report of Foreign
Bank & Financial Accounts (FBAR) Reference Guide, p. 1
(Rev. 3–2022). As relevant here, the BSA simply requires
those who possess foreign accounts with an aggregate bal-
ance of more than $10,000 to file an annual report on a form
known as an “FBAR”—the Report of Foreign Bank and Fi-
nancial Accounts. 31 U. S. C. §5314; 31 CFR §1010.306(2021). These reports are designed to help the government
“trace funds” that may be used for “illicit purposes” and
identify “unreported income” that may be subject to taxa-
tion separately under the terms of the Internal Revenue
Code. FBAR Reference Guide, at 1.
The facts of the Ninth and Fifth Circuit cases help illu-
minate the particular question about the BSA now before
us. The first dispute involved Jane Boyd, an American cit-
izen who held 13 relevant accounts in the United Kingdom.
The amounts in those accounts increased significantly after
her father died in 2009 and she deposited her inheritance.
United States v. Boyd, 991 F. 3d 1077, 1079 (CA9 2021). Be-
cause the aggregate amount in Ms. Boyd’s accounts ex-
ceeded $10,000 in 2009, she should have filed an FBAR in
2010. Neglecting to do so, she corrected the error in 2012,
submitting a complete and accurate report at that time.
Ibid. The government acknowledged that Ms. Boyd’s viola-
tion of the law was “non-willful.” Still, the government said,
Cite as: 598 U. S. ____ (2023) 3
Opinion of the Court
it had the right to impose a $130,000 penalty—$10,000 for
each of her 13 late-reported accounts. Ibid.Ms. Boyd challenged the penalty in court where she ar-
gued that her failure to file a single timely FBAR subjected
her to a single maximum penalty of $10,000. The district
court rejected that argument and sided with the govern-
ment. United States v. Boyd, 123 AFTR 2d 2019–1651 (CD
Cal. 2019). But in time the Ninth Circuit vindicated Ms.
Boyd’s view, holding that the BSA authorizes “only one non-
willful penalty when an untimely, but accurate, FBAR is
filed, no matter the number of accounts.” 991 F. 3d, at
1078.
More recently, the same question arose in the Fifth Cir-
cuit in a case involving Alexandru Bittner. Born and raised
in Romania, Mr. Bittner immigrated to the United States
at a young age in 1982. He worked first as a dishwasher
and later as a plumber and along the way became a natu-
ralized citizen. After the fall of communism, Mr. Bittner
returned to Romania in 1990 where he launched a success-
ful business career. Like many dual citizens, he did not ap-
preciate that U. S. law required him to keep the govern-
ment apprised of his overseas financial accounts even while
he lived abroad. 19 F. 4th 734, 739–740 (CA5 2021).
Shortly after returning to the United States in 2011, Mr.
Bittner learned of his reporting obligations and engaged an
accountant to help him prepare the required reports—cov-
ering five years, from 2007 through 2011. Id., at 739.
But the story did not end there. The government identi-
fied a problem in the late-filed reports. While those reports
provided details about Mr. Bittner’s largest account, they
neglected to address 25 or more other accounts over which
he had signatory authority or in which he had a qualifying
interest. Ibid. After the government informed him of this
deficiency, Mr. Bittner hired a new accountant who helped
him file corrected FBARs for each year in question. Ibid.4 BITTNER v. UNITED STATES
Opinion of the Court
Under governing regulations, filers with signatory author-
ity over or a qualifying interest in fewer than 25 accounts
must provide details about each account, but individuals
with 25 or more accounts need only check a box and disclose
the total number of accounts. 31 CFR §1010.350(g). In-
stead of employing that expediency, however, Mr. Bittner
and his new accountant volunteered details for each and
every one of his accounts—61 accounts in 2007, 51 in 2008,
53 in 2009 and 2010, and 54 in 2011. 19 F. 4th, at 738.
The question then turned to what penalty Mr. Bittner
should pay. The government did not contest the accuracy
of Mr. Bittner’s new filings. Nor did the government sug-
gest that his previous errors were willful. But because the
government took the view that nonwillful penalties apply
to each account not accurately or timely reported, and be-
cause Mr. Bittner’s late-filed reports for 2007–2011 collec-
tively involved 272 accounts, the government thought a fine
of $2.72 million was in order. Id., at 739–740.
Like Ms. Boyd before him, Mr. Bittner challenged his
penalty in court, arguing that the BSA authorizes a maxi-
mum penalty for nonwillful violations of $10,000 per report,
not $10,000 per account. As he put it, an individual’s fail-
ure to file five reports in a timely manner might invite a
penalty of $50,000, but it cannot support a penalty running
into the millions. The district court agreed with Mr.
Bittner’s reading of the law, United States v. Bittner, 469
F. Supp. 3d 709, 724–726 (ED Tex. 2020), but the Fifth Cir-
cuit upheld the government’s assessment, 19 F. 4th, at 749.
II
With those facts in mind, the question before us boils
down to this: Does the BSA’s $10,000 penalty for nonwillful
violations accrue on a per-report or a per-account basis?
Mr. Bittner urges us to agree with the Ninth Circuit and
hold that the law authorizes a single $10,000 fine for each
untimely or inaccurate report. The government defends the
Cite as: 598 U. S. ____ (2023) 5
Opinion of the Court
judgment of the Fifth Circuit and asks us to hold that a new
$10,000 penalty attaches to each account not timely or ac-
curately disclosed within a report.
A
To resolve who has the better reading of the law, we begin
with the terms of the most immediately relevant statutory
provisions, 31 U. S. C. §5314 and §5321. The first deline-
ates an individual’s legal duties under the BSA, the second
outlines the penalties that follow for failing to discharge
those duties.
Section 5314 provides that the Secretary of the Treasury
“shall” require certain persons to “keep records, file reports,
or keep records and file reports” when they “mak[e] a trans-
action or maintai[n] a relation” with a “foreign financial
agency.” §5314(a). When it comes to the duty to file reports,
the relevant duty in our case, the statute says that reports
“shall contain” information about “the identity and address
of participants in a transaction or relationship,” “the legal
capacity in which a participant is acting,” and “the identity
of real parties in interest,” along with a “description of the
transaction.” §§5314(a)(1)–(4). The law also directs the
Secretary to prescribe “the way and . . . the extent” to which
reports must be filed. §5314(a).
Immediately, one thing becomes clear. Section 5314 does
not speak of accounts or their number. The word “account”
does not even appear. Instead, the relevant legal duty is
the duty to file reports. Of course, those reports must in-
clude various kinds of information about an individual’s for-
eign “transaction[s] or relationship[s].” But whether a re-
port is filed late, whether a timely report contains one
mistake about the “address of [the] participants in a trans-
action,” or whether a report includes multiple willful errors
in its “description of . . . transaction[s],” the duty to supply
a compliant report is violated. Put another way, the statu-
tory obligation is binary. Either one files a report “in the
6 BITTNER v. UNITED STATES
Opinion of the Court
way and to the extent the Secretary prescribes,” or one does
not. Multiple willful errors about specific accounts in a sin-
gle report may confirm a violation of §5314, but even a sin-
gle nonwillful mistake is enough to pose a problem. One
way or another, §5314 is violated. The only distinction the
law draws between these cases concerns the appropriate
penalty.
That’s where §5321 comes in. As a baseline, §5321(a)(5)
authorizes the Secretary to impose a civil penalty of up to
$10,000 for “any violation” of §5314. 31 U. S. C.
§§5321(a)(5)(A) and (B)(i). Some call this the “nonwillful”
penalty provision. And here again, one thing is immedi-
ately apparent: The law still does not speak of accounts or
their number. Instead, the statute pegs the quantity of
nonwillful penalties to the quantity of “violation[s].” And
as we have seen, §5314 provides that a violation occurs
when an individual fails to file a report consistent with the
statute’s commands. So multiple deficient reports may
yield multiple $10,000 penalties, and even a seemingly sim-
ple deficiency in a single report may expose an individual
to a $10,000 penalty. But in all cases, penalties for nonwill-
ful violations accrue on a per-report, not a per-account, ba-
sis.1
To be sure, the statute’s penalty provisions do not stop
there. Section 5321 goes on to say that if an individual
“willfully” violates §5314, he may face a maximum penalty
of $100,000. §5321(a)(5)(C)(i)(I). The statute then adds an
even more specific rule for a subclass of willful violations—
those that involve “a failure to report the existence of an
account or any identifying information required to be pro-
vided with respect to an account.” §5321(a)(5)(D)(ii). In
cases like that, the law authorizes the Secretary to impose
——————
1 What, if any, mens rea the government must prove to impose a “non-
willful” penalty is not before us.
Cite as: 598 U. S. ____ (2023) 7
Opinion of the Court
a maximum penalty of either $100,000 or 50% of “the bal-
ance in the account at the time of the violation”—whichever
is greater. §§5321(a)(5)(C) and (D)(ii). So here, at last, the
law does tailor penalties to accounts. But the statute does
so only for a certain category of cases that involve willful
violations, not for cases like ours that involve only nonwill-
ful violations.
No surprise, the government seeks to turn this feature of
the law to its advantage. Because Congress explicitly au-
thorized per-account penalties for some willful violations,
the government asks us to infer that Congress meant to do
so for analogous nonwillful violations as well. Brief for
United States 20–23. But, in truth, this line of reasoning
cuts against the government. When Congress includes par-
ticular language in one section of a statute but omits it from
a neighbor, we normally understand that difference in lan-
guage to convey a difference in meaning (expressio unius est
exclusio alterius). The government’s interpretation defies
this traditional rule of statutory construction. See, e.g., De-
partment of Homeland Security v. MacLean, 574 U. S. 383,
391 (2015); Gallardo v. Marstiller, 596 U. S. ___, ___, ___
(2022) (slip op., at 7, 9).
The government’s problem repeats itself too. Section
5321(a)(5)(B)(ii) contains a “[r]easonable cause exception.”
That exception allows an individual to escape a penalty (say
for filing late) only if his violation was nonwillful, “due to
reasonable cause,” and the report he eventually files accu-
rately reflects each and every account.2 All of which sup-
plies further evidence that, when Congress wished to tie
sanctions to account-level information, it knew exactly how
to do so. Congress said that penalties for certain willful vi-
olations may be measured on a per-account basis. Congress
——————
2 At argument, the government explained that the reasonable cause
exception works in this fashion to protect those who file a late FBAR so
long as the report they eventually file accurately provides the required
information. Tr. of Oral Arg. 57–58.
8 BITTNER v. UNITED STATES
Opinion of the Court
said that a person may invoke the reasonable cause excep-
tion only on a showing of per-account accuracy. But the one
thing Congress did not say is that the government may im-
pose nonwillful penalties on a per-account basis. Conspic-
uously, the one place in the statute where the government
needs per-account language to appear is the one place it
does not. In the end, the government’s per-account theory
faces not just a single expressio unius challenge but two.3
The dissent founders on the same shoals. It suggests that
the “pattern” of account-specific language in the willful pen-
alty provision and the reasonable cause exception “con-
not[es]” that the nonwillful penalty provision must operate
on a per-account basis. Post, at 4, 7 (opinion of BARRETT,
J.). But (again), just because two provisions in the law are
similar does not mean we may ignore differences found in a
third. Seeking a way around the problem, the dissent
points to the fact that even a single qualifying foreign bank
account “triggers” the duty to file a report, and the fact that
a compliant report must contain a “list of information”
about bank addresses and the like. Post, at 2–3. These fea-
tures of the law, the dissent says, “underscor[e]” that non-
willful violations accrue per account. Post, at 2. But that
simply does not follow. The fact that a person has a duty to
file a report, or provide certain information in a report, does
not tell us whether penalties for nonwillful violations ac-
crue per report or multiply per account without regard to
an individual’s net worth or foreign holdings.4
——————
3 What if an individual (like Mr. Bittner) fails to file a timely report
and later files an inaccurate one—would the statute classify that as two
violations of the duty to file a statutorily compliant report rather than
one? The parties do not join issue on the question and we do not pass
upon it. Nor does the answer matter for present purposes. Either way,
the statute conditions nonwillful penalties on the number of reports, not
on the number of accounts.
4 The dissent also stresses that 31 U. S. C. §5314 imposes two duties—
a duty to file reports and keep records. Post, at 3. From this, the dissent
Cite as: 598 U. S. ____ (2023) 9
Opinion of the Court
B
Widening our view beyond §5314 and §5321, we find
other contextual clues pressing against the government’s
theory. Consider what the government itself has told the
public about the BSA. In 2010, the Department of the
Treasury issued a notice of proposed rulemaking warning
that, under its proposed rules, “[a] person who is required
to file an FBAR and fails to properly file may be subject to
a civil penalty not to exceed $10,000.” 75 Fed. Reg. 8854(2010). Elsewhere, the government has told suspected
FBAR violators that “[f]or the failure to file . . . the penalty
cannot exceed $10,000.” IRS, Letter 3709, p. 1 (Mar. 2011).
Instructions included with the FBAR form have cautioned
that “[a] person who is required to file an FBAR and fails to
properly file may be subject to a civil penalty not to exceed
$10,000.” IRS, Form TD F 90–22.1, p. 8 (Mar. 2011). An
IRS “Fact Sheet” has advised that, “[f]or the FBAR, the pen-
alty may be up to $10,000, if the failure to file is non-will-
ful.” IRS, Offshore Income and Filing Information for Tax-
payers with Offshore Accounts, FS–2014–7 (June 2014).
Ms. Boyd herself received a similarly worded letter alerting
her that “ ‘[f]or the failure to file [the FBAR] . . . the penalty
cannot exceed $10,000.’ ” Boyd, 991 F. 3d, at 1085, n. 11 (al-
terations in original and emphasis deleted).
None of these representations about the law’s operation
fits easily with the government’s current theory. In all of
these warnings, fact sheets, and instructions, the govern-
——————
reasons, “if violations of [the] recordkeeping obligation accrue on a per-
account basis, the same should be true of violations of [the] obligation to
file reports.” Ibid. But the question whether violations of the record-
keeping duty accrue per account or on some other basis is not before us.
Nor is it obvious why violations of two separate statutory duties must
accrue in the same way—especially when the law authorizes the Secre-
tary to “prescrib[e]” different “way[s]” the two duties may be discharged.
§5314(a).
10 BITTNER v. UNITED STATES
Opinion of the Court
ment seemed to tell the public that the failure to file a re-
port represents a single violation exposing a nonwillful vio-
lator to one $10,000 penalty. Nowhere in these materials
did the government announce its current theory that a sin-
gle deficient or untimely report can give rise to multiple vi-
olations, that the number of nonwillful penalties may turn
on the number of accounts, or that the $10,000 maximum
penalty may be multiplied 272 times or more without re-
spect to an individual’s foreign holdings or net worth.
Doubtless, the government’s guidance documents do not
control our analysis and cannot displace our independent
obligation to interpret the law. But this Court has long said
that courts may consider the consistency of an agency’s
views when we weigh the persuasiveness of any interpreta-
tion it proffers in court. Skidmore v. Swift & Co., 323 U. S.
134, 140 (1944). Here, the government has repeatedly is-
sued guidance to the public at odds with the interpretation
it now asks us to adopt. And surely that counts as one more
reason yet to question whether its current position repre-
sents the best view of the law.5
The drafting history of the nonwillful penalty provision
undermines the government’s theory too. When Congress
adopted the BSA in 1970, the law included penalties only
for willful violations and capped them at $1,000. Pub. L.
91–508, §125(a), 84 Stat. 1117. It took many years before
——————
5 The dissent expresses “surpris[e]” that we cite the government’s guid-
ance documents. Post, at 8. We don’t see why. Our point is not that the
administrative guidance is controlling. Nor is it that the government’s
guidance documents have consistently endorsed Mr. Bittner’s reading of
the law. It is simply that, when the government (or any litigant) speaks
out of both sides of its mouth, no one should be surprised if its latest
utterance isn’t the most convincing one. This is no new principle in the
law any more than it is in life. In Skidmore, this Court noted that the
persuasiveness of an agency’s interpretation of the law may be under-
mined by its inconsistency “with earlier [agency] pronouncements.” 323
U. S., at 140.
Cite as: 598 U. S. ____ (2023) 11
Opinion of the Court
Congress in 1986 authorized the government to impose pen-
alties on a per-account basis for certain willful violations.
Pub. L. 99–570, §1357(c), 100 Stat. 3207-25. And it took
many years more before Congress in 2004 amended the law
again to authorize penalties for nonwillful violations. Pub.
L. 108–357, §821(a), 118 Stat. 1586. When crafting this lat-
est provision, it would have been the simplest thing for Con-
gress to model its work on its 1986 amendment and author-
ize per-account penalties for nonwillful violations just as it
had for certain willful ones. But Congress didn’t do any-
thing like that. The language it adopted for nonwillful pen-
alties in 2004 bears scant resemblance to the language it
used when authorizing per-account penalties for certain
willful violations in 1986.
Consider as well Congress’s statement of purpose. Con-
gress has declared that the BSA’s “purpose” is “to require”
certain “reports” or “records” that may assist the govern-
ment in everything from criminal and tax to intelligence
and counterintelligence investigations. 31 U. S. C. §5311.6Here we see further evidence that the relevant legal duty
the BSA establishes is the duty to file certain reports. We
see evidence, too, that the point of these reports is to supply
the government with information potentially relevant to
various kinds of investigations, criminal and civil alike.
But what we do not see is any indication that Congress
sought to maximize penalties for every nonwillful mistake
(whether a late filing, a transposed account number, or an
out-of-date bank address). See Brief for American College
——————
6 “A preamble, purpose clause, or recital is a permissible indicator of
meaning.” A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 217 (2012). See also 1 J. Story, Commentaries on the Con-
stitution of the United States §459, p. 443 (1833) (“[T]he preamble of a
statute is a key to open the mind of the makers, as to the mischiefs, which
are to be remedied, and the objects, which are to be accomplished by the
provisions of the statute”).
12 BITTNER v. UNITED STATES
Opinion of the Court
of Trust and Estate Counsel as Amicus Curiae 5–7.7
The Secretary’s regulations implementing the BSA con-
vey the same message. Under those regulations, individu-
als with fewer than 25 accounts must provide details about
each account while those (like Mr. Bittner) with 25 or more
accounts do not need to list each one or provide account-
specific details about any of them. 31 CFR §1010.350(g)(1).
Instead, filers with 25 or more accounts “need only provide
the number of financial accounts and certain other basic in-
formation.” Ibid. Naturally, an individual must supply
more “detailed information” if the “Secretary or his dele-
gate” later chooses to follow up and request it. Ibid. But no
detailed account-level information is required in the filer’s
initial report. It’s yet another feature of the BSA and its
regulatory scheme that suggests the law aims to provide
the government with a report sufficient to tip it to the need
for further investigation, not to ensure the presentation of
every detail or maximize revenue for each mistake.
The Secretary’s regulation also points to some of the
anomalies that accompany the government’s per-account
theory. On the government’s telling, an individual with,
say, three accounts who makes nonwillful errors when
providing details about these accounts faces a potential
penalty of $30,000. He faces that penalty no matter how
slight his errors, and regardless whether his foreign hold-
ings (or even net worth) approach the same amount. Mean-
while, a person with 300 bank accounts runs far less risk of
——————
7 The dissent insists that its per-account theory would better advance
“the statute’s purpose” of cracking down on criminals and terrorists.
Post, at 9. But few statutes pursue their stated “ ‘purpose at all costs.’ ”
Kucana v. Holder, 558 U. S. 233, 252 (2010). Nor is it clear how calcu-
lating nonwillful penalties on a per-account basis would advance the pur-
pose the dissent attributes to the BSA. Are we to imagine that drug car-
tels and terrorists often make innocent mistakes when filing their
FBARs?
Cite as: 598 U. S. ____ (2023) 13
Opinion of the Court
incurring any penalty. He doesn’t have to provide any de-
tail about his accounts, just correctly disclose how many he
holds. See also Brief for American College of Tax Counsel
as Amicus Curiae 15–16 (Brief for Tax Counsel).
Nor is this the only incongruity the government’s theory
invites. Consider someone who has a $10 million balance
in a single account who nonwillfully fails to report that ac-
count. Everyone agrees he is subject to a single penalty of
$10,000. Yet under the government’s theory, another per-
son engaging in the same nonwillful conduct with respect
to a dozen foreign accounts with an aggregate balance of
$10,001 would be subject to a penalty of $120,000. Id., at
14–15.
On the government’s view, too, those who willfully violate
the law may face lower penalties than those who violate the
law nonwillfully. For example, an individual who holds $1
million in a foreign account during the course of a year but
withdraws it before the filing deadline and then willfully
fails to file an FBAR faces a maximum penalty of $100,000.
But a person who errs nonwillfully in listing 20 accounts
with an aggregate balance of $50,000 can face a penalty of
up to $200,000. Id., at 14. Reading the law to apply non-
willful penalties per report invites none of these curiosities;
the government’s per-account theory invites them all.8
The government does not dispute any of this but replies
that the per-report interpretation risks an anomaly of its
own. After all, the government observes, the BSA affords
the Secretary considerable discretion in formulating report-
ing requirements. So much so, the government contends,
that the Secretary could require a separate report for each
account and in that way effectively achieve a per-account
——————
8 The dissent suggests that these examples bear “limited relevance” be-
cause it is only “natura[l]” that a person “who violates the law many
times” might incur more penalties. Post, at 9–11. But this assumes that
violations accrue on a per-account basis, which begs the very question at
issue before us.
14 BITTNER v. UNITED STATES
OpinionofofGthe
Opinion Court
ORSUCH, J.
penalty for nonwillful violations. Brief for United States
32. But what does this prove? Assuming the Secretary
could require more frequent reports (a question not before
us), that would mean the Secretary could also require less
frequent reports (for example, every other year). Likewise,
the Secretary could reduce the amount of information re-
quired in those reports (say, expanding the tick-box option
to all filers, not just those with 25 or more accounts). Per-
haps more fundamentally, whether the Secretary may law-
fully ordain more or fewer reports does nothing to answer
the question whether the Secretary may impose nonwillful
penalties on a per-report or per-account basis. That ques-
tion would still remain. Reply Brief 7–8.
C
To the extent doubt persists at this point about the best
reading of the BSA, a venerable principle supplies a way to
resolve it. Under the rule of lenity, this Court has long held,
statutes imposing penalties are to be “construed strictly”
against the government and in favor of individuals. Com-
missioner v. Acker, 361 U. S. 87, 91 (1959). Following that
rule here requires us to favor a per-report approach that
would restrain BSA penalties over a per-account theory
that would greatly enhance them.
The government resists this conclusion by seeking to dis-
tinguish Acker. That case involved a penalty provision in
the Internal Revenue Code, the government emphasizes,
while this case involves a penalty provision in the BSA.
Brief for United States 44–45. But that distinction makes
no difference. The rule of lenity is not shackled to the In-
ternal Revenue Code or any other chapter of federal statu-
tory law. Instead, as Acker acknowledged, “[t]he law is set-
tled that penal statutes are to be construed strictly,” and an
individual “is not to be subjected to a penalty unless the
words of the statute plainly impose it.” 361 U. S., at 91 (in-
Cite as: 598 U. S. ____ (2023) 15
OpinionofofGthe
Opinion Court
ORSUCH, J.
ternal quotation marks omitted and emphasis added). No-
tably, too, Acker cited to and relied on cases applying this
same principle to penalty provisions under a wide array of
statutes, including the Communications Act of 1934, a
bankruptcy law, and the National Banking Act. See ibid.(citing FCC v. American Broadcasting Co., 347 U. S. 284,
296 (1954); Keppel v. Tiffin Savings Bank, 197 U. S. 356,
362 (1905); and Tiffany v. National Bank of Mo., 18 Wall.
409, 410 (1874)); see also Scalia & Garner at 297 (the rule
of lenity applies “to civil penalties”).
Two additional features of this case make it a particularly
appropriate candidate for the rule of lenity. First, the rule
exists in part to protect the Due Process Clause’s promise
that “a fair warning should be given to the world in lan-
guage that the common world will understand, of what the
law intends to do if a certain line is passed.” McBoyle v.
United States, 283 U. S. 25, 27 (1931); see also Connally v.
General Constr. Co., 269 U. S. 385, 393 (1926); Wooden v.
United States, 595 U. S. ___, ___–___ (2022) (GORSUCH, J.,
concurring in judgment) (slip op., at 6–9). And the govern-
ment’s current theory poses a serious fair-notice problem.
The relevant provisions of the BSA nowhere discuss per-ac-
count penalties for nonwillful violations. A number of the
government’s own public guidance documents have seem-
ingly warned of per-report, not per-account, penalties for
non-willful violations. See Part II–B, supra; Brief for Tax
Counsel 6–24. We are even told that, until 2008 and 2009,
when the government began aggressively enforcing FBAR
penalties, “many experienced tax professionals and return
preparers were not aware of the FBAR reporting obliga-
tions,” let alone aware of the government’s current theory
about the scope of penalties for non-willful violations. Brief
for Center for Taxpayer Rights as Amicus Curiae 24, 20–28,
and n. 21. If many experienced accountants were unable to
anticipate the government’s current theory, we do not see
how “the common world” had fair notice of it. McBoyle, 283
16 BITTNER v. UNITED STATES
Opinion of the Court
U. S., at 27.
Second, the question before us has criminal as well as
civil ramifications. Section 5321 outlines civil penalties for
nonwillful and willful “violation[s]” of the BSA. Next door,
§5322 provides criminal sanctions for “willfully violating”
the Act. The term “violation” or “violating” is a constant
between these two provisions. Accordingly, if the govern-
ment were right that violations accrue on a per-account ra-
ther than a per-report basis under §5321, the same rule
would apply under §5322. Each willfully misstated or late-
reported account, rather than each deficient or late-filed re-
port, would give rise to a separate criminal violation carry-
ing the possibility of a $250,000 fine and five years in
prison. In a case like Mr. Bittner’s, involving 5 reports and
272 accounts, that would mean a person who willfully vio-
lates the BSA could face a $68 million fine and 1,360 years
in prison rather than a $1.25 million fine and 25 years in
prison. In these circumstances, the rule of lenity, not to
mention a dose of common sense, favors a strict construc-
tion. See Leocal v. Ashcroft, 543 U. S. 1, 12, n. 8 (2004) (len-
ity applies when a disputed statutory provision has “both
criminal and noncriminal applications”); see also FCC, 347
U. S., at 296; United States v. Thompson/Center Arms Co.,
504 U. S. 505, 517–518 (1992) (plurality opinion).
III
Best read, the BSA treats the failure to file a legally com-
pliant report as one violation carrying a maximum penalty
of $10,000, not a cascade of such penalties calculated on a
per-account basis. Because the Fifth Circuit thought other-
wise, we reverse its judgment and remand the case for fur-
ther proceedings consistent with this opinion.
So ordered.
Cite as: 598 U. S. ____ (2023) 1
BARRETT, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1195
_________________
ALEXANDRU BITTNER, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 28, 2023]
JUSTICE BARRETT, with whom JUSTICE THOMAS, JUSTICE
SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Alexandru Bittner, an American citizen, held as much as
$16 million across more than 50 bank accounts in Romania,
Switzerland, and Liechtenstein.* He acknowledges that
the Bank Secrecy Act (BSA) and its implementing regula-
tions required him to report his interest in these accounts
to the Federal Government annually. Bittner also admits
that he failed to comply with that requirement for five con-
secutive years. Because he failed to report 272 accounts,
the Government concluded that he violated the law 272
times and assessed a penalty for each violation. Bittner, on
the other hand, argued that he violated the law just five
times—once for each annual form that he failed to file.
The Court agrees with Bittner and holds that the failure
to file a legally compliant form is a single violation, no mat-
ter how many accounts a citizen fails to report. I respect-
fully disagree. The most natural reading of the statute es-
tablishes that each failure to report a qualifying foreign
account constitutes a separate reporting violation, so the
Government can levy penalties on a per-account basis.
——————
*In 2007, for example, he held over $10 million across 61 foreign bank
accounts. The pattern continued: $10 million across 51 accounts in 2008,
$3 million across 53 accounts in 2009, $16 million across 53 accounts in
2010, and $15 million across 54 accounts in 2011.
2 BITTNER v. UNITED STATES
BARRETT, J., dissenting
I
This case requires us to decide whether a violation of the
BSA’s reporting requirement is the failure to file an annual
form, or whether there is a separate violation for each indi-
vidual account that is not properly reported. The answer
lies in the text of the relevant statutes, 31 U. S. C. §§5314and 5321. The Government assessed penalties against
Bittner under §5321(a)(5)(A), which provides that “[t]he
Secretary of the Treasury may impose a civil money penalty
on any person who violates, or causes any violation of, any
provision of section 5314.” Section 5314, in turn, directs the
Secretary to “require a . . . citizen of the United States . . .
to keep records, file reports, or keep records and file reports,
when the . . . person makes a transaction or maintains a
relation for any person with a foreign financial agency.”
§5314(a). The required “records and reports shall contain”
certain information “in the way and to the extent the Sec-
retary prescribes,” such as the identity, address, and legal
capacity of the participants in a transaction or relationship.
Ibid.
The text of §5314 indicates that its reporting requirement
attaches to each individual account. Most notably, it pro-
vides that the Secretary “shall require” a citizen to “file re-
ports” when he “maintains a relation . . . with a foreign fi-
nancial agency.” Ibid. The subject matter of the required
reports, then, is “a relation” with a foreign financial
agency—or, more colloquially, an account with a foreign
bank. Ibid. In other words, each relation with a foreign
bank triggers the requirement to file reports. And because
each relation is a matter of distinct concern under the stat-
ute, each failure to report an account violates the reporting
requirement.
The enumerated list of information that the reports “shall
contain” underscores the point. Ibid. That list includes in-
formation like “the identity and address of participants in
Cite as: 598 U. S. ____ (2023) 3
BARRETT, J., dissenting
a . . . relationship,” “the legal capacity in which a partici-
pant” in a relationship “is acting,” and “the identity of real
parties in interest.” §§5314(a)(1)–(3). Each listed item is
account specific because its contents can vary for each for-
eign account held. And each failure to report an account
thus deprives the Government of the account-specific infor-
mation that the statute requires.
That is not all. Section 5314 authorizes the Secretary to
impose a recordkeeping requirement in addition to a report-
ing requirement. Recordkeeping violations cannot occur on
a per-form basis because keeping records does not entail fil-
ing a form. Instead, they occur on a per-account basis be-
cause records naturally relate to specific accounts. And if
violations of §5314’s recordkeeping obligation accrue on a
per-account basis, the same should be true of violations of
§5314’s obligation to file reports. The duties are parallel:
Each kicks in “when” a citizen “maintains a relation” with
a foreign financial agency, and each requires a person to
collect the same account-specific information. §5314(a).
Parallel duties should be susceptible to parallel violations.
The civil penalty provisions in §5321 confirm this reading
of the substantive obligations imposed by §5314. Recall
that §5321 allows the Secretary to “impose a civil money
penalty on any person who violates, or causes any violation
of, any provision of section 5314.” §5321(a)(5)(A). The stat-
ute then proceeds to set the maximum penalty for nonwill-
ful violations, provide a reasonable cause exception for
those same violations, and set the maximum penalty for
willful violations. §§5321(a)(5)(B)–(D). Throughout, Con-
gress used the term “violation” in an account-specific way.
Consider the reasonable cause exception. It provides that
“[n]o penalty shall be imposed . . . with respect to any” non-
willful “violation” of §5314 if (1) “such violation was due to
reasonable cause” and (2) “the balance in the account at the
time of the transaction was properly reported.”
4 BITTNER v. UNITED STATES
BARRETT, J., dissenting
§5321(a)(5)(B)(ii) (emphasis added). By conditioning eligi-
bility for the excuse on taking steps to report accurate infor-
mation about a particular account, this language suggests
that the underlying violation of §5314 is similarly tied to a
specific account. After all, “if the exception for non-willful
violations applies on a per-account basis, then logically the
violations the exception forgives must arise on a per-
account basis too.” 19 F. 4th 734, 747–748 (CA5 2021).
The willful penalty provisions sing the same tune. The
maximum penalty for a willful violation is the greater of
$100,000 or, “in the case of a violation involving a failure to
report the existence of an account or any identifying infor-
mation required to be provided with respect to an account,”
50 percent of “the balance in the account at the time of the
violation.” §§5321(a)(5)(C)(i), (D)(ii). “This language makes
clear that a violation may involve ‘a failure to report the
existence of ’ ” a particular account. United States v. Boyd,
991 F. 3d 1077, 1089 (CA9 2021) (Ikuta, J., dissenting). By
making the maximum penalty for a willful violation in some
cases a function of “the balance in the account at the time
of the violation,” the provision contemplates that discrete
violations correspond to discrete accounts.
§5321(a)(5)(D)(ii).
This pattern matters. The “normal rule of statutory in-
terpretation” is that “identical words used in different parts
of the same statute are generally presumed to have the
same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34
(2005). If a “violation” of §5314 has account-specific conno-
tations in the reasonable cause and willful penalty provi-
sions, it follows that a “violation” of §5314 has account-
specific connotations when it comes to nonwillful penalties
too.
The Secretary’s implementing regulations follow the
BSA’s lead. They require regulated persons to report the
existence of each foreign financial account to the Govern-
ment each year. Start with 31 CFR §1010.350 (2011). It
Cite as: 598 U. S. ____ (2023) 5
BARRETT, J., dissenting
says that “[e]ach United States person having a financial
interest in . . . a bank, securities, or other financial account
in a foreign country shall report such relationship to the
Commissioner of Internal Revenue for each year in which
such relationship exists and shall provide such information
as shall be specified in a reporting form prescribed under
31 U. S. C. 5314 to be filed by such persons.” §1010.350(a)
(emphasis added). The reporting form is known as an
FBAR—a Report of Foreign Bank and Financial Accounts.
Ibid. A separate regulation establishes the deadline for re-
porting these relationships. “Reports required to be filed by
§1010.350 shall be filed” by “June 30 of each calendar year
with respect to foreign financial accounts exceeding $10,000
maintained during the previous calendar year.”
§1010.306(c), as amended, 81 Fed. Reg. 76864 (2016). Put
together, these provisions impose a substantive obligation
to report interests in foreign bank accounts each year in
which those interests exist. See §1010.420 (referring to “ac-
counts required by §1010.350 to be reported to the” Govern-
ment).
Notably, the regulations distinguish between the form
used to report accounts and the reports themselves. See
§1010.306(d) (the “[r]eports required by” §1010.350 “shall
be filed on forms prescribed by the Secretary” (emphasis
added)); §1010.306(e) (the “[f]orms to be used in making the
reports required by” §1010.350 “may be obtained from” the
Government (emphasis added)). This underscores that
FBAR forms are not themselves the “reports” required by
the statute; rather, they are the procedural mechanism
used to implement the duty to report each foreign account.
This distinction tracks §5314, which emphasizes a citizen’s
duty to file “reports” but nowhere mentions FBARs—or, for
that matter, forms of any sort. §5314(a). So far as §5314 is
concerned, the Secretary could have chosen a different
mechanism to implement the statute. For instance, rather
than instructing citizens to report all accounts on a single
6 BITTNER v. UNITED STATES
BARRETT, J., dissenting
form, he could have instructed citizens to report each ac-
count on a separate form. And if the Secretary had taken
that route, Bittner would be hard pressed to deny that he
would have violated the statute 272 times by failing to file
272 forms. That difficulty illustrates Bittner’s fundamental
misunderstanding of the account-specific obligation im-
posed by §5314, which is indifferent to the mechanism by
which the obligation is discharged.
In the end, “the applicable statute and regulations make
clear that any failure to report a foreign account is an inde-
pendent violation, subject to independent penalties.” Boyd,
991 F. 3d, at 1089 (Ikuta, J., dissenting). A person who fails
to report multiple foreign accounts on a single annual form
violates the BSA and its implementing regulations multiple
times, not just once. So the Government was within its
rights to assess a separate penalty against Bittner for each
qualifying foreign account that he failed to report properly.
II
A
The Court reads the relevant provisions differently. It
reasons that the legal duty imposed by §5314 is “the duty
to file reports.” Ante, at 5. In the Court’s view, that “stat-
utory obligation is binary”: “Either one files a report ‘in the
way and to the extent the Secretary prescribes,’ or one does
not.” Ante, at 5–6. So penalties for nonwillful violations
must “accrue on a per-report, not a per-account, basis.”
Ante, at 6. And because Bittner failed to file timely FBARs
for five years, the Court concludes that he violated the law
only five times.
The Court’s core error is to conflate the reports referred
to in §5314 with the annual FBAR form. To reiterate, the
two are distinct. And because the FBAR is not itself the
statutorily required “report,” the Court’s conclusion—that
Bittner violated §5314 just five times because he untimely
filed five FBAR forms—does not follow. The BSA and its
Cite as: 598 U. S. ____ (2023) 7
BARRETT, J., dissenting
implementing regulations required Bittner to file one re-
port per year of each qualifying foreign financial account
that he maintained. Each failure to report an account is a
discrete violation regardless of whether the violations were
clustered on a single form.
The Court does not just misread §5314; it misreads §5321
too. It points out that account-specific language is present
in the reasonable cause and willful penalty provisions but
absent in the provisions setting the nonwillful penalty. Be-
cause “Congress generally acts intentionally when it uses
particular language in one section of a statute but omits it
in another,” Department of Homeland Security v. MacLean,
574 U. S. 383, 391 (2015), the Court takes the contrast as
evidence that nonwillful penalties cannot apply on a per-
account basis. Ante, at 6–8 (invoking the expressio unius
canon).
Not so. The expressio unius canon is a general rule, inap-
plicable where context suggests otherwise—as it does here.
Congress capped the penalty for a nonwillful violation at a
flat $10,000. §5321(a)(5)(B)(i). Because the penalty
amount does not depend on the balance in an account, Con-
gress had no reason to use account-specific language. By
contrast, the maximum penalty for a willful violation is the
greater of $100,000 or 50 percent of the account balance at
the time of the violation, and the reasonable cause excep-
tion lifts a penalty only if the account balance was properly
reported. §§5321(a)(5)(B)(ii), (C)(i), (D)(ii). Because the ap-
plication of both provisions depends on the account balance,
Congress needed to use account-specific language. The rea-
son why Congress included account-specific language in
only two of these three provisions is therefore readily ap-
parent. Regardless, the variation in language does not do
much for the Court. These provisions in §5321 explain the
varying penalties that the Secretary may assess for a viola-
tion of §5314 but do not alter the nature of the underlying
conduct that constitutes a violation. Boyd, 991 F. 3d, at
8 BITTNER v. UNITED STATES
BARRETT, J., dissenting
1089 (Ikuta, J., dissenting). That conduct, as discussed, is
account specific.
B
The Court also invokes a handful of “contextual clues” to
support its conclusion. Ante, at 9. None of these “clues”
justifies a departure from the best reading of the text.
Begin with the Government’s guidance to the public
about what the BSA requires. The Court identifies a hand-
ful of statements, primarily from Internal Revenue Service
(IRS) fact sheets and form instructions, indicating that a
failure to file an annual FBAR may result in a penalty of up
to $10,000. The Court acknowledges that these materials
do not control the analysis, yet it still goes on to suggest
that they cut against the Government’s interpretation.
Ante, at 9–10.
I am surprised that the Court is moved by this adminis-
trative guidance. For one thing, even Bittner concedes that
the materials do not speak directly to the question pre-
sented in this case: whether additional penalties may ac-
crue when a person fails to report multiple accounts on a
single form. Reply Brief 18; Tr. of Oral Arg. 39–40. For
another, the Court neglects to mention administrative ma-
terials that endorse the Government’s per-account interpre-
tation. See, e.g., Brief for American College of Tax Counsel
as Amicus Curiae 18, 21 (identifying IRS staff guidance ma-
terials from 2008 and 2015 explaining that FBAR penalties
may be assessed per account). But in any event, guidance
materials add little, if anything, to the interpretive enter-
prise when the traditional tools of construction supply an
answer.
The Court also highlights the Secretary’s regulatory de-
cision to allow the rare covered person with 25 or more for-
eign financial accounts to “only provide the number of fi-
nancial accounts and certain other basic information on the
Cite as: 598 U. S. ____ (2023) 9
BARRETT, J., dissenting
report.” §1010.350(g)(1). According to the Court, this spe-
cial rule is a knock against the Government’s reading be-
cause it does not require detailed account-level information
in such a filer’s initial report. Ante, at 12.
But the Secretary’s accommodation does not advance the
Court’s cause. A person with 25 or more accounts still “will
be required to provide detailed information concerning each
account when so requested by the Secretary or his dele-
gate.” §1010.350(g)(1). And the Secretary’s recordkeeping
regulation requires covered persons to retain the same de-
tailed information about each account that otherwise would
be reported on the annual form. See §1010.420. So a person
with 25 or more accounts violates the BSA for each account
with a reporting or recordkeeping problem just the same as
a person with fewer than 25 accounts. In both cases, the
violation is the failure to report the account properly or to
keep records of it.
That consequence is consistent with the statute’s pur-
pose. In arguing otherwise, the Court leans on what the
preamble does not say: “[T]hat Congress sought to maxim-
ize penalties for every nonwillful mistake.” Ante, at 11. No-
tably, though, the Court skims over what the preamble does
say: that the BSA is designed to “require certain reports or
records” that assist the Government in “criminal, tax, or
regulatory investigations” and in “intelligence or counterin-
telligence activities, including analysis, to protect against
terrorism.” 31 U. S. C. §5311. When analyzing complex
webs of money laundering or funding for international ter-
rorism, knowing about every account matters—and lacking
information about 15 accounts is certainly more harmful to
law enforcement than lacking information about 1 account.
See Brief for United States 38. Given the stated purpose,
authorizing a penalty for each undisclosed account makes
sense.
Finally, the Court insists that a per-account reading
10 BITTNER v. UNITED STATES
BARRETT, J., dissenting
leads to absurd results. Its concerns range from the over-
stated to the incorrect, and they are in any event of limited
relevance to the statutory interpretation question before us.
First, the Court posits a comparison between a person
who nonwillfully violates the law once by failing to report a
single account with a balance of $10 million and a person
who nonwillfully violates the law 12 times by failing to re-
port 12 accounts with an aggregate balance of $10,001. Be-
cause the first is subject to a maximum penalty of $10,000
and the second is subject to a maximum penalty of
$120,000, the Court concludes that there is an “incongruity”
in the statutory scheme. Ante, at 13. But a person who
violates the law many times might naturally pay a steeper
price than a person who violates the law just once, regard-
less of the balances in their unreported accounts. Indeed,
the Court seems untroubled by the incongruity that flows
from its own reading: The Secretary is constrained by the
same maximum penalty ($10,000) for a person who nonwill-
fully fails to report 100 accounts on an annual FBAR as he
is for a person who nonwillfully fails to report just 1 ac-
count. The per-form reading makes it difficult for the Gov-
ernment to assess stiffer penalties for more serious noncom-
pliance.
Consider next the Court’s claim that, on the Govern-
ment’s reading, those who willfully violate the law may face
lower penalties than those who nonwillfully violate the law.
Ibid. The Court provides the example of a person who holds
$1 million in a foreign account during the course of a year
but withdraws those funds before the filing deadline and
willfully fails to report the account. Under §5321(a)(5)(C),
that person faces a maximum penalty of $100,000, while a
person who nonwillfully fails to report 20 accounts with an
aggregate account balance of $50,000 might face a penalty
of up to $200,000 under §5321(a)(5)(B)(i). This is not an
apples-to-apples comparison: The first person willfully vio-
lated the law once, while the second nonwillfully violated
Cite as: 598 U. S. ____ (2023) 11
BARRETT, J., dissenting
the law 20 times. That the latter might face a higher pen-
alty than the former is therefore beside the point. An actual
apples-to-apples comparison shows that willful violators do
face a much heavier fine: The maximum penalty for a single
willful violation will always be at least 10 times greater
than the maximum penalty for a single nonwillful violation.
See §§5321(a)(5)(B)(i), (C)(i).
III
There is no denying that the Government opted to pursue
a substantial penalty in this case: $10,000 for each of
Bittner’s 272 alleged violations, for a total penalty of $2.72
million. Yet while the statutory scheme allows for substan-
tial penalties, it also offers a safe haven. No penalty shall
be imposed for a nonwillful violation of §5314 if (1) “such
violation was due to reasonable cause” and (2) “the balance
in the account at the time of the transaction was properly
reported.” §5321(a)(5)(B)(ii).
Bittner raised this defense below, and the Government
conceded that he satisfied its second prong by properly re-
porting the balances in his accounts on his late-filed
FBARs. 19 F. 4th, at 740, and n. 2. But the District Court
and Court of Appeals both roundly rejected Bittner’s argu-
ment that he had reasonable cause for failing to timely re-
port his accounts. After evaluating the pertinent facts and
circumstances, both courts concluded that Bittner “did not
exercise ordinary business care and prudence in failing to
fulfill his reporting obligations.” Id., at 742; see also 469
F. Supp. 3d 709, 729 (ED Tex. 2020). On the contrary,
Bittner “put no effort into ascertaining” those obligations
despite operating as a sophisticated business professional
who held “interests in dozens of companies, negotiated pur-
chases of Romanian government assets, transferred his as-
sets into holding companies, and concealed his earnings in
‘numbered accounts.’ ” 19 F. 4th, at 742. Bittner abandoned
his reasonable cause argument when he came to this Court,
12 BITTNER v. UNITED STATES
BARRETT, J., dissenting
so we have no occasion to consider its merit. Brief for Peti-
tioner 11, n. 9. But the defense is available to litigants who
can satisfy it.
* * *
The most natural reading of the BSA and its implement-
ing regulations establishes that a person who fails to report
multiple accounts on the prescribed reporting form violates
the law multiple times, not just once. Because the Court
declines to adopt that reading, I respectfully dissent.