The Evolving Standard Of “Willfulness” In FBAR Cases: Where Are We Now?

The concept of “willfulness” is an important one in the FBAR civil penalty context.  Indeed, a taxpayer’s willful failure to file a timely and accurate FBAR may result in significant penalties:  the higher of 50-percent of the unreported account balance at the time of the violation or $100,000 (adjusted for inflation).  Take this simple example:

Mark is a dual citizen of the United States and Australia.  Mark routinely travels to Australia to visit his family. In one year, Mark chooses to live and work in Australia, making $300,000 as an independent contractor.  Mark deposits the funds from his work in an Australian bank account.

When tax time comes, Mark files an income tax return reporting the $300,000 of income.  However, he fails to file an FBAR reporting the maximum account balance in the foreign account, which was $200,000.  If the IRS determines that Mark’s failure to file an FBAR was willful, the IRS may assess a $100,000 willful FBAR penalty against him.

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