UNITED STATES OF AMERICA v. JEFFREY KAHN, аs co-executor of the estate of HAROLD KAHN, and JOEL KAHN, as co-executor of the estate of HAROLD KAHN
Docket No. 19-3920
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 13, 2021
August Term, 2020 (Argued: December 17, 2020)
JULIE CIAMPORCERO AVETTA, Tax Division, Department of Justice, Washington, D.C. (Richard E. Zuckerman, Principal Deputy Assistant Attorney General, Joshua Wu, Deputy Assistant Attorney General, Francesa Ugolini, Geoffrey J. Klimas, Attorneys, Tax Division, Department of Justice, Washington, D.C.; Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, New York, New York, on the brief), for Plaintiff-Appellee.
JAMES N. MASTRACCHIO, Washington, D.C. (Daniel G. Strickland, Eversheds Sutherland (US), Washington, D.C., on the brief), for Defendants-Appellants.
Before: KEARSE, BIANCO, and MENASHI, Circuit Judges.
Appeal from a judgment of the United States District Court for the Eastern District of New York, Kiyo A. Matsumoto, Judge, in favor of the government against defendants as co-executors of the estate of Harold Kahn (“Kahn“), in the principal penalty amount of $4,264,728, plus statutory additions and interest, for Kahn‘s undisputedly willful failure, in violation of
Affirmed.
Judge Menashi dissents in a separate opinion.
Defendants Jeffrey and Joel Kahn, as co-executors of the estate of Harold Kahn (“Kahn“), appeal from a judgment of the United States District Court for the Eastern District of New York, Kiyo A. Matsumoto, Judge, in favor of the United States against defendants as co-executors of the Kahn estate (the “Estate“) in the principal penalty amount of $4,264,728, plus statutory additions and interest, for Kahn‘s undisputedly willful failure, in violation of
I. BACKGROUND
As discussed in greater detail in Part II below, a United States person with an interest in foreign financial accounts having an aggregate value of more than $10,000 is required each year to file an FBAR. See
A. The Facts
The facts of this case are not in dispute, as the parties have stipulated as follows:
- Harold Kahn . . . willfully failed to file Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR“) for the 2008 yeаr as required by
31 U.S.C. § 5314 and implementing regulations. - The filing due date for the 2008 FBAR was June 30, 2009.
-
The 2008 FBAR should have reported two bank accounts held by Mr. Kahn at Credit Suisse, Switzerland. - Each account held over $100,000 and the aggregate value in the two Credit Suisse accounts was $8,529,456, as of June 30, 2009.
- The Internal Revenue Service assessed a willful penalty for the failure to file the 2008 FBAR in the amount of $4,264,728, which represents 50% of the aggregate account balance as of June 30, 2009, pursuant to
31 U.S.C. § 5321(a)(5) .
(Stipulation of Fact dated September 14, 2018.)
It was also undisputed that after the Internal Revenue Service (“IRS“) assessed the penalty, Kahn passed away without making payment and that the assessment has not been paid by the Estate. (See, e.g., Complaint ¶ 36; Answer ¶ 36.) The government commenced the present action seeking judgment against the Estate in the amount of the assessment, plus additional statutory penalties and interest.
Given the above stipulated facts, the dispute centered on the maximum amount the IRS was allowed to assess as a penalty. Thе government contended that the 2004 Statute,
B. The District Court‘s Decision
In a well-reasoned opinion, the district court granted the government‘s motion and denied that of the Estate. See United States v. Kahn, 17-cv-7258, 2019 WL 8587295 (E.D.N.Y. Sept. 23, 2019) (“D.Ct. Op.“). The court noted that the Bank Secrecy Act (“BSA“), as enacted in 1970, required United States persons to report their relationships with foreign financial institutions. See id. at *4. Congress authorized the Secretary of the Treasury (the “Secretary“) to promulgate regulations for implementation and enforcement of the reporting requirement; and the Secretary adopted the FBAR fоrm. See id.
In 1986, focusing on money-laundering-related violations of the BSA, Congress added a civil money penalty that could be levied against private individuals for their willful failures to file FBARs. The maximum penalty was set at “the greater of” $25,000 or “an amount (not to exceed $100,000) equal to the balance in the account at the time of the violation.”
The 2004 Statute increased the civil penalty for willful behavior to its present level, making the maximum penalty for failure to file an FBAR the greater of $100,000 or 50 percent of the aggregate balance in the accounts at the time of the violation. See id. at *6;
D.Ct. Op, 2019 WL 8587295, at *7.
Although the Estate argued that the regulation stating that the Secretary “may assess . . . a civil penalty” on any person who willfully violates the FBAR requirement,
Id. (emphasis added).
Concluding that the regulation is inconsistent with the plain language of the amended statute, the court granted summary judgment in favor of the government on the ground that the 1987 Regulation is no longer valid, and that the assessment against the Estate of $4,264,728, i.e., 50 percent of the aggregate balance in Kahn‘s two foreign accounts at the time of his willful violation--the statutory maximum--was therefore permissible.
II. DISCUSSION
On appeal, the Estate contends that the district court erred in refusing to limit the per-willful-violation maximum penalty for failure to file an FBAR to the $100,000-per-account maximum set by the 1987 Regulation, arguing principally that the regulation is not inconsistent with the 2004 Statute, that the court misinterpreted the statute‘s use of the word “shall,” and that in any event, the rule of lenity requires that any ambiguity be resolved in the Estate‘s favor. Because the parties have stipulated to the facts, the “only inquiry is which party is entitled to judgment as a matter of law.” Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 771 (2d Cir. 1999). Reviewing that question de novo, we conclude that, in granting summary judgment to the government, the district court made no error.
A. The Statutory Provisions and the 1987 Regulation
The BSA, as enacted by Congress in 1970, introduced a requirement that United States persons report their relationships with foreign financial institutions. See
In the 1986 Statute, for willful failures to file an FBAR, Congress added authorization for the Secretary to impose a civil monetary penalty on individuals. The 1986 Statute provided that “[t]he amount” of a “civil money penalty” for “a failure to report” a foreign account “shall not exceed”
the greater of--
(I) an amount (not to exceed $100,000) equаl to the balance in the account at the time of the violation; or
(II) $25,000.
a civil penalty not to exceed the greater of the amount (not to exceed $100,000) equal to the balance in the account at the time of the violation, or $25,000.
In 1990, the Secretary established, within the Treasury Department, the Financial Crimes Enforcement Network (“FinCEN“), whose mission includes collecting and maintaining information filed under the BSA. In 2002, the Secretary granted the Director of FinCEN the authority to “implement and administer the [BSA] . . . including, but not limited to, the promulgation and amendment of regulations and the assessment of penalties,” with the provisо that all regulations “in effect or in use on the date of enactment of the USA Patriot Act of 2001, shall continue in effect . . . until superseded or revised.” Treasury Order 180-01; Financial Crimes Enforcement Network, 67 Fed. Reg. 64697 (Oct. 21, 2002) (“Treasury Order 180-01“) (emphasis added). A year later, FinCEN delegated its authority for the enforcement of the FBAR requirements--including the authority to assess and collect civil penalties under
In 2002, the Secretary reported to Congress that “the IRS estimate[d] that there may be as many as 1 million U.S. taxpayers who have signature authority or control over a foreign bank account and may be required to file FBARs,” and that the rate of compliance with that requirement may be “less than 20 percent.” Secretary of the Treasury, A Report to Congress in Accordance with § 361(b) of the USA PATRIOT Act (April 26, 2002), at 6 (“Secretary‘s 2002 Report to Congress“). Congress thеn considered amending the FBAR failure-to-file penalty provisions. Both the House of Representatives and the Senate proposed to add a civil penalty for non-willful failures to file; for those failures the House proposed a maximum penalty of $5,000, and the Senate proposed a maximum of $10,000. As to willful failures, the House proposed to retain the existing penalty provision, whereas the Senate proposed raising the maximum penalty to levels that could substantially exceed the existing $100,000 maximum, pegged to the balances in the unreported accounts. See H.R. Conf. Rep. 108-775 at 615 (Oct. 7, 2004), reprinted in 2004 U.S.C.C.A.N. 1341, 1647. The Senate proposal was adopted, see id., and in the 2004 Statute Congress amended the penalty provisions to read--as of the date of enactment, and as they do today--as follows:
(A) Penalty authorized.--The 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. (B) Amount of penalty.--
(i) In general.--Except as provided in subparagraph (C), the amount of any civil penalty imposed under subparagraph (A) shall not exceed $10,000.
. . . .
(C) Willful violations.--In the case of any person willfully violating, or willfully causing any violation of, any provision of section 5314--
(i) the maximum penalty under subparagraph (B)(i) shall be increased to the greater of--
(I) $100,000, or
(II) 50 percent of the amount determined under subparagraph (D) . . .
. . . .
(D) Amount.--The amount determined under this subparagraph is--
. . . .
(ii) 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, the balance in the account at the time of the violation.
B. Estate Contentions
The Estate insists that the 1987 Regulation‘s penalty maximum, set lower than the maximum provided by the 2004 Statute, presents no inconsistency with the 2004 Statute. In support, the Estate asserts that the Secretary has broad rulemaking authority, citing a series of BSA provisions (as currently codified) that say the Secretary “may . . . exempt” “a reasonable classification of persons . . . from” the FBAR requirement, “may . . . decide[ to] apply[]” the regulation to accounts in fewer than all foreign countries, “may prescribe . . . the magnitude of transactions” to be regulated, “may . . . exempt” a “kind of transaction[] . . . from . . . reg[u]lation,” and “may prescribe . . . other matters the Secretary considers necessary” (Estate brief on appeal at 10 (internal quotation marks omitted) (emphases in brief)); and it quotes the 2004 Statute provision at
Conspicuously absent from this litany, however, is any statutory provision saying that the Secretary may set a maximum penalty level for failure to file an FBAR. Instead, in every version of § 5321 that has authorized the imposition of a civil penalty for failure to file required financial reports, Congress itself has specified the maximum penalty that the Secretary was authorized to impose--whether on an enterprise or an individual, and whether non-willful or willful. And a statute‘s general provision that an administrator may issue such other regulations as he “considers necessary” does not constitute authorization to issue a regulation that contradicts an express provision of the statute. See, e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86-88 (2002) (invalidating a regulation promulgated pursuant to the Secretary of Labor‘s authority to issue “regulations necessary to carry out” the Family and Medical Leave Act where that regulation was “contrary to the Act‘s remedial design” (internal quotation marks omitted)).
The meaning of the phrase “may impose a civil penalty” in the 2004 Statute,
Here, instead of permitting the Secretary to establish the maximum permissible penalty for failures to file FBARs, the 2004 Statute provided that the “maximum” penalty for a willful failure “shall be increased” to the greater of $100,000 or 50 percent of the total relevant account balances,
Plainly the Secretary has discretion in a given case to impose a penalty that is below the ceiling provided by the statute: such flexibility is reflected in the very essence of a level denominated a “maximum.” Indeed, the Estate acknowledges that the “shall” in the 2004 Statute “did not dictate a requirement to impose the maximum penalty in all cases,” and that “Congress . . . did not make the maximum penalty mandatory--it left to the Secretary discretion as to how much penalty could be imposed under the permissible statutory maximum.” (Estate brief on appeal at 24, 23 (emphases added).) But for the 1987 Regulation to forbid--as the Estate contends--any assessment of a penalty as high as the ceiling set by the 2004 Statute is simply inconsistent with that statute. Adherence to the 1987 Regulation would shrink the discretion that was conferred on the Secretary by the 2004 Statute--providing less discretion than Congress believed was needed in order to deter willful disregard of FBAR requirements.
Accordingly, contrary to the Estate‘s contention, we conclude that the 1987 Regulation and the 2004 Statute are not “harmonious” (Estate brief on appeal at 25). Accord Norman v. United States, 942 F.3d 1111, 1117-18 (Fed. Cir. 2019) (“Norman“); United States v. Horowitz, 978 F.3d 80, 90-91 (4th Cir. 2020) (“Horowitz“); United States v. Rum, 995 F.3d 882, 892 (11th Cir. 2021) (“Rum“).
Of course, the 1987 Regulation--when it was adopted--was not inconsistent with the maximum penalty that Congress had then set; the 1987 Regulation tracked the precise levels set out in the 1986 Statute. But the 1986 Statute‘s penalty provisions were plainly amended by the 2004 Statute, and a regulation that “contravenes the plain language of the statute” is invalid, Lawrence + Memorial Hospital v. Burwell, 812 F.3d 257, 259 (2d Cir. 2016). Even a regulation that is not “technically inconsistent with the statutory language” is invalid “when that regulation is fundamentally at odds with the manifest congressional
[i]t is well-settled that subsequently enacted or amended statutes supersede prior inconsistent regulations. . . . A regulation that contravenes a statute is invalid. . . . A regulation cannot override a clearly stated statutory requirement. . . . It is well-settled that when a regulation conflicts with a subsequently enacted statute, the statute controls and voids that regulation. . . . Ms. Norman‘s position to the contrary would inappropriately prevent all newly created or amended statutes from taking effect until all inconsistent regulations are amended or repealed.
Norman, 942 F.3d at 1118 (internal quotation marks omitted (emphases ours)); see, e.g., Rum, 995 F.3d at 892 (“The plain text of
Like our Sister Circuits, we decline to read the maximum penalty provision in the 2004 Statute as having been rendered superfluous ab initio by the Secretary‘s purported preexisting discretion to set a penalty maximum. Given the 2002 report of the Secretary himself to Congress as to the meager level of compliance with the FBAR requirement--i.e., estimating that four of every five taxpayers who were required to file FBARs, perhaps totaling as many as 800,000, were failing to do so (see Secretary‘s 2002 Report to Congress at 6)--it seems surprising that the Sеcretary
would insist on maintaining the modest maximum penalty level provided in the superseded 1986 Statute and the 1987 Regulation, rather than the potentially much higher penalties enacted in the 2004 Statute. Or perhaps it should not be surprising, given that 20 years ago, the Supreme Court observed that “[t]he Treasury‘s relaxed approach to amending its regulations to track Code changes [wa]s well documented.” United Dominion Industries, Inc. v. United States, 532 U.S. 822, 836 (2001). We note that the Secretary‘s 2002 delegation to FinCEN of BSA enforcement responsibility expressly (a) instructed that FinCEN was to “implement and administer the provisions of . . . the [BSA], . . . codified at,” inter alia, ”
Our dissenting colleague argues that Treasury has “the obligation to follow its own regulations,” dissenting opinion post at 2. In our view, this argument rests on two erroneous assumptions: first, that because the Secretary has discretion to elect whether, and to what extent below the statutory maximum, to impose a penalty for failure to file an FBAR, the Secretary also has the authority to issue a regulation setting the maximum penalty below the statutory maximum; and second, that the 1987 Regulation is a product of that discretion. Neither assumption is valid.
First, in relying on
Second, even assuming arguendo that the Secretary had been given authority to set a maximum penalty lower than the level specified in the statute, there is no basis for inferring that the 1987 Regulation was the product of either a desire to promulgate a regulation that would have the force of law independently of the BSA or a desire to reduce the Secretary‘s own discretion. Although Treasury engaged in proposed rulemaking in August 1986, that notice-and-comment process involved a rule designed to “correct[] a technical error in the [1985] regulations that implemented [an] increase in [the] civil penalty amount made by” an amendment to the statute in 1984. Amendments to Implementing Regulations; the Bank Secrecy Act, 51 Fed. Reg. 30233, 30236 (Aug. 25, 1986). The provision that became the 1987 Regulation--which parrots the 1986 Statute--was not part of the proposed rulemaking, because the 1986 Statute had not yet been enacted. Thereafter, the 1987 Regulation simply included the penalty maximum provision enacted by the 1986 Statute, “to keep the regulations as current as possible.” Amendments to Implementing Regulations Under the Bank Secrecy Act, 52 Fed. Reg. 11436, 11440 (April 8, 1987). And in stating a maximum penalty that parroted the 1986 Statute, the 1987 Regulation did not reduce the discretion accorded to the Secretary.
“[T]he existence of a parroting regulation,” i.e., one that “merely . . . paraphrase[s] the statutory language” rather than introducing a provision formulated in
Finally, we note the Estate‘s argument that the penalty for Kahn‘s willful failure to file an FBAR should be limited to a total of $200,000 under “‘the rule of lenity,‘” which “‘applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended.‘” (Estate brief on appeal at 42 (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010) (emphasis ours).) Assuming that the rule of lenity is applicable to a civil rather than a criminal statute, we see no basis for its invocation here. There is no ambiguity or uncertainty as to what Congress intended in the 2004 Statute when it provided that the penalty for a willful failure to file an FBAR would be “the greater of” $100,000, or 50 percent of the aggregate balance of the aсcounts.
In sum, we conclude that the district court correctly ruled that when the 2004 Statute raised the maximum penalty that had been set in the 1986 Statute, the 2004 Statute superseded the 1987 Regulation‘s provision that had tracked the 1986 Statute.
CONCLUSION
We have considered all of the Estate‘s arguments on this appeal and have found them to be without merit. The judgment of the district court is affirmed.
19-3920
United States v. Kahn
MENASHI, Circuit Judge, dissenting:
“It is a familiar rule of administrative law that an agency must abide by its own regulations.” Fort Stewart Schs. v. Fed. Lab. Rels. Auth., 495 U.S. 641, 654 (1990).1 We call this rule “the Accardi principle” after the case most associated with it, United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).2 In this case, the Accardi principle requires that we reverse the judgment of the district court.
The Treasury Department‘s current regulations provide that the penalty for Harold Kahn‘s willful failure to file a Report of Foreign Bank and Financial Accounts (“FBAR“) may not exceed $100,000. See
I
The parties in this case do not question the Accardi principle. “[P]roperly promulgated, substantive agency regulations have the force and effect of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (internal quotation marks omitted); see also Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 96 (2015) (“Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.‘“). Therefore, such a “regulation binds the government as much as the individuals subject to the regulation.” Hammond v. Lenfest, 398 F.2d 705, 715 (2d Cir. 1968); see also Service v. Dulles, 354 U.S. 363, 372 (1957) (“[R]egulations validly prescribed by a government administrator are binding upon him as well as the citizen.“). “[T]his principle holds even when the administrative action under review is discretionary in nature.” Service, 354 U.S. at 372; see also Hammond, 398 F.2d at 715 (“[T]his is no less so because the governmental action is essentially discretionary in nature.“).
Accordingly, even when a governing statute does not “obligate[]” an agency “to impose upon” itself “substantive and procedural standards,” if the agency chooses to “do[] so,” it may “not, so long as the [r]egulations remain[] unchanged, proceed without regard to them.” Service, 354 U.S. at 388; see also Vitarelli v. Seaton, 359 U.S. 535, 540 (1959) (“[T]he Secretary . . . was bound by the regulations which he himself had promulgated for dealing with such cases, even though without such regulations he could have discharged petitioner summarily.“).
The Treasury Department has sometimes evaded standard administrative law principles when enforcing the tax laws,3 but the Supreme Court has made clear that the Accardi principle applies in the tax and non-tax context alike. See Ballard v. Comm‘r, 544 U.S. 40, 59 (2005) (“However efficient the Tax Court‘s current practice may be . . . [t]he Tax Court, like all other decisionmaking tribunals, is obliged to follow its own Rules.“) (citing Service, 354 U.S. at 388, and Vitarelli, 359 U.S. at 540); see also Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011) (“[W]e are not inclined to carve out an approach to administrative review good for tax law only. To the contrary, we have expressly recognized the importance of maintaining a uniform approach to judicial review of administrative action.“) (internal quotation marks and alterations omitted).
II
The current Treasury Department regulation governing penalties for willful failures to file an FBAR provides that any penalty is “not to exceed the greater of the amount (not to exceed $100,000) equal to the balance in the account at the time of the violation, or $25,000.”
Recognizing this straightforward argument, the government—and the court—insist that the relevant regulation is “invalid” because it “was suрerseded by the 2004 amendment to the statute” that “increase[ed] the penalty maximum” the agency may collect to above $100,000. Ante at 4, 19. Of course, if the 2004 amendment did in fact supersede the regulation, then the regulation would lack “the force and effect of law” and no longer bind the Treasury Department. Perez, 575 U.S. at 96. A statute overrides a preexisting regulation when the “regulation conflicts with [the] subsequently enacted statute.” Farrell v. United States, 313 F.3d 1214, 1219 (9th Cir. 2002); see also Decker v. Nw. Env‘t Def. Ctr., 568 U.S. 597, 609 (2013) (“It is a basic tenet that ‘regulations, in order to be valid, must be consistent with the statute under which they are promulgated.‘“); Scofield v. Lewis, 251 F.2d 128, 132 (5th Cir. 1958) (“A Regulation, valid when promulgated, becomes invalid upon the enactment of a statute in conflict with the Regulation.“). The 2004 amendment, however, created no conflict with the governing regulation.
The amended statute provides that “[t]he Secretary of the Treasury may impose a civil money penalty on any person who” fails to file an FBAR.
While the court is correct that the statute allows the Secretary to impose a penalty in excess of the $100,000 regulatory cap, it errs in interpreting the statute to require that the Secretary subject violators to an increased penalty—or even a “potentially” increased penalty. Ante at 21. The statute does not require the Secretary to do anything. It merely states that the Secretary “may impose a civil money penalty” subject to the limitations set out in that provision.
Because the statute grants the Secretary the discrеtion to impose any penalty ranging from zero dollars to the statutory maximum, and because Congress has also granted the Secretary rulemaking authority to guide her exercise of that discretion,5 the Secretary may promulgate and enforce a rule setting the applicable fines at any point from zero to the statutory maximum. The Accardi principle rests on the premise that agencies may constrain their statutorily granted discretion through regulation.6
The court responds to this argument by watering down the Accardi principle. While the court admits that the statute “plainly” gives “the Secretary . . . discretion in a given case to impose a penalty that is below the ceiling provided by the statute,” ante at 18, the court concludes that the statute does not “permit[] the Secretary to establish [a lower] maximum permissible penalty for failures to file FBARs,” ante at 17 (emphasis added). In other words—even though the statute confers on the Secretary both discretion to choose penalties within the statutory range and to promulgate binding regulations—the statute for some reason does not allow the Secretary to cabin her own discretion through those rules.8
Second, the court invokes the notion that “[e]ven a regulation that is not ‘technically inconsistent with the statutory language’ is invalid ‘when that regulation is fundamentally at odds with the manifest congressional design.‘” Ante at 19 (quoting United States v. Vogel Fertilizer Co., 455 U.S. 16, 26 (1982)). Yet the only applicable principle “manifest” from the “design” of the statute Congress enacted is that the Secretary has discretion to impose any
To the extent that the court considers the legislative history it discusses to manifest a design inconsistent with the current regulation, the Supreme Court has told us that “[l]egislative history, for those who take it into account, is meant to clear up ambiguity.” Milner v. Dep‘t of Navy, 562 U.S. 562, 574 (2011). When “[t]he text is clear . . . we need not consider . . . extra-textual evidence.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942 (2017). In fact, Vogel and the cases on which it relied—Rowan Cos. v. United States, 452 U.S. 247 (1981), and National Muffler Dealers Ass‘n v. United States (1979), see Vogel, 455 U.S. at 24-26—form a body of pre-Chevron tax jurisprudence from which the Supreme Court has since distanced itself. “Since Rowan and Vogel were decided . . . the administrative landscape has changed significantly,” and the Court‘s more recent precedents “rather than National Muffler and Rowan, prоvide the appropriate framework for evaluating” agency action. Mayo Found., 562 U.S. at 56-57. In this case, the FBAR penalty statute clearly gives the Secretary discretion to impose any penalty beneath the statutory maximum and contains no language indicating that this discretion is constrained. Under the Supreme Court‘s more recent precedents, therefore, we may not read a constraint into the statute and disregard the general rule that an agency may constrain its discretion through regulation. Nor may we decline to apply the Accardi principle by excusing the Treasury Department from following its own regulations.10
To be sure, the Secretary may amend or repeal the regulation that caps the penalty below the statutory maximum. But “[s]o long as this regulation is extant it has the force of law.” Nixon, 418 U.S. at 695. “Here, as in Accardi, it is theoretically possible for the [Secretary] to amend or revoke the regulation [capping the FBAR penalty at $100,000]. But [s]he has not done so. So long as this regulation remains in force the Executive Branch is bound by it.” Id. at 696.
*
*
*
“[I]f troubled by the consequences” produced by standard administrative law principles, the Treasury Department may