BITTNER v. UNITED STATES
No. 21-1195
SUPREME COURT OF THE UNITED STATES
February 28, 2023
598 U. S. ____ (2023)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
OCTOBER TERM, 2022
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 (1906).
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. Petitioner 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 submitted 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 account 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.
Section 5321 authorizes the Secretary to impose a civil penalty of up to $10,000 for “any violation” of
To be sure, for certain cases that involve willful violations, the statute does tailor penalties to accounts. Section 5321 specifically addresses 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.”
(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 nonwillful 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 offers. Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).
Second, the drafting history of the nonwillful penalty provision undermines 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 Congress declared that the BSA‘s “purpose” is “to require” certain “reports” or “records” that may assist the government in various kinds of investigations.
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.
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, Washington, 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 maximum fine of $10,000. On another view, penalties multiply on a per-account basis, so the same report can invite a fine
I
The Bank Secrecy Act (BSA) does not make it illegal to hold foreign accounts. Nor does the BSA tax those accounts. To the contrary, the federal government has acknowledged that “U. S. persons maintain overseas financial 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 balance of more than $10,000 to file an annual report on a form known as an “FBAR“-the Report of Foreign Bank and Financial Accounts.
The facts of the Ninth and Fifth Circuit cases help illuminate the particular question about the BSA now before us. The first dispute involved Jane Boyd, an American citizen 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). Because the aggregate amount in Ms. Boyd‘s accounts exceeded $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. Id. The government acknowledged that Ms. Boyd‘s violation of the law was “non-willful.” Still, the government said,
Ms. Boyd challenged the penalty in court where she argued 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 government. 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 nonwillful 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 Circuit 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 naturalized citizen. After the fall of communism, Mr. Bittner returned to Romania in 1990 where he launched a successful business career. Like many dual citizens, he did not appreciate that U. S. law required him to keep the government 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-covering five years, from 2007 through 2011. Id., at 739.
But the story did not end there. The government identified 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. Id. 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. Id.
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 suggest 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 because Mr. Bittner‘s late-filed reports for 2007-2011 collectively 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 maximum penalty for nonwillful violations of $10,000 per report, not $10,000 per account. As he put it, an individual‘s failure 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 Circuit 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
A
To resolve who has the better reading of the law, we begin with the terms of the most immediately relevant statutory provisions,
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 transaction or maintai[n] a relation” with a “foreign financial agency.”
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 include various kinds of information about an individual‘s foreign “transaction[s] or relationship[s].” But whether a report is filed late, whether a timely report contains one mistake about the “address of [the] participants in a transaction,” 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 statutory obligation is binary. Either one files a report “in the
That‘s where
To be sure, the statute‘s penalty provisions do not stop there. Section 5321 goes on to say that if an individual “willfully” violates
No surprise, the government seeks to turn this feature of the law to its advantage. Because Congress explicitly authorized per-account penalties for some willful violations, the government asks us to infer that Congress meant to do so for analogous nonwillful violations. Brief for United States 20-23. But, in truth, this line of reasoning cuts against the government. When Congress includes particular language in one section of a statute but omits it from a neighbor, we normally understand that difference in language 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., Department 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 accurately reflects each and every account.2 All of which supplies 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 violations may be measured on a per-account basis. Congress
The dissent founders on the same shoals. It suggests that the “pattern” of account-specific language in the willful penalty provision and the reasonable cause exception “connot[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 features of the law, the dissent says, “underscor[e]” that nonwillful 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 accrue per report or multiply per account without regard to an individual‘s net worth or foreign holdings.4
Widening our view beyond
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 Secretary to “prescrib[e]” different “way[s]” the two duties may be discharged.
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 interpretation it proffers in court. Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). Here, the government has repeatedly issued 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 represents 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
Consider as well Congress‘s statement of purpose. Congress has declared that the BSA‘s “purpose” is “to require” certain “reports” or “records” that may assist the government in everything from criminal and tax to intelligence and counterintelligence investigations.
The Secretary‘s regulations implementing the BSA convey the same message. Under those regulations, individuals 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.
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 holdings (or even net worth) approach the same amount. Meanwhile, a person with 300 bank accounts runs far less risk of
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 account. Everyone agrees he is subject to a single penalty of $10,000. Yet under the government‘s theory, another person 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 nonwillful 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 reporting 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
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. Commissioner 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 distinguish 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 Internal Revenue Code or any other chapter of federal statutory law. Instead, as Acker acknowledged, “[t]he law is settled 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-
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 language 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 government‘s current theory poses a serious fair-notice problem. The relevant provisions of the BSA nowhere discuss per-account penalties for nonwillful violations. A number of the government‘s own public guidance documents have seemingly 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 obligations,” 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
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,
III
Best read, the BSA treats the failure to file a legally compliant 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 otherwise, we reverse its judgment and remand the case for further proceedings consistent with this opinion.
So ordered.
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 regulations 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 consecutive 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 matter how many accounts a citizen fails to report. I respectfully disagree. The most natural reading of the statute establishes 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.
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 individual account that is not properly reported. The answer lies in the text of the relevant statutes,
The text of
The enumerated list of information that the reports “shall contain” underscores the point.
That is not all. Section 5314 authorizes the Secretary to impose a recordkeeping requirement in addition to a reporting requirement. Recordkeeping violations cannot occur on a per-form basis because keeping records does not entail filing a form. Instead, they occur on a per-account basis because records naturally relate to specific accounts. And if violations of
The civil penalty provisions in
Consider the reasonable cause exception. It provides that “[n]o penalty shall be imposed . . . with respect to any” nonwillful “violation” of
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 information required to be provided with respect to an account,” 50 percent of “the balance in the account at the time of the violation.”
This pattern matters. The “normal rule of statutory interpretation” 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
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 Government each year. Start with
Notably, the regulations distinguish between the form used to report accounts and the reports themselves. See
In the end, “the applicable statute and regulations make clear that any failure to report a foreign account is an independent 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
The Court‘s core error is to conflate the reports referred to in
The Court does not just misread
Not so. The expressio unius canon is a general rule, inapplicable where context suggests otherwise—as it does here. Congress capped the penalty for a nonwillful violation at a flat $10,000.
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 handful 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 administrative guidance. For one thing, even Bittner concedes that the materials do not speak directly to the question presented in this case: whether additional penalties may accrue 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 materials that endorse the Government‘s per-account interpretation. See, e.g., Brief for American College of Tax Counsel as Amicus Curiae 18, 21 (identifying IRS staff guidance materials 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 enterprise when the traditional tools of construction supply an answer.
The Court also highlights the Secretary‘s regulatory decision to allow the rare covered person with 25 or more foreign financial accounts to “only provide the number of financial accounts and certain other basic information on the
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 delegate.”
That consequence is consistent with the statute‘s purpose. In arguing otherwise, the Court leans on what the preamble does not say: “[T]hat Congress sought to maximize penalties for every nonwillful mistake.” Ante, at 11. Notably, 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 counterintelligence activities, including analysis, to protect against terrorism.”
Finally, the Court insists that a per-account reading
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 report 12 accounts with an aggregate balance of $10,001. Because 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, regardless 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 nonwillfully fails to report 100 accounts on an annual FBAR as he is for a person who nonwillfully fails to report just 1 account. The per-form reading makes it difficult for the Government to assess stiffer penalties for more serious noncompliance.
Consider next the Court‘s claim that, on the Government‘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
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 substantial penalties, it also offers a safe haven. No penalty shall be imposed for a nonwillful violation of
Bittner raised this defense below, and the Government conceded that he satisfied its second prong by properly reporting 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 argument that he had reasonable cause for failing to timely report 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 purchases of Romanian government assets, transferred his assets 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,
*
*
*
The most natural reading of the BSA and its implementing 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.